# Wallach v. Van Riswick

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United States Supreme Court
92 U.S. 202
Wallach v. Van Riswick
APPEAL from the Supreme Court of the District of Columbia.
The complainants are children and heirs-at-law of Charles S. Wallach, who was an officer in the Confederate army during the late rebellion. While he was thus in that service, his real estate situate in the city of Washington was, by order of the President, seized under the Confiscation Act of July 17, 1862, and a libel for its condemnation duly filed. The lot of ground, respecting which the present controversy exists, was condemned as forfeited to the United States on the twenty-ninth day of July, 1863; and, on the ninth day of September next following, it was sold under a writ of venditioni exponas, the defendant Van Riswick becoming the purchaser. Prior to the seizure, the lot had been conveyed by Charles S. Wallach in trust to secure the payment of a promissory note for $5,000 which he had borrowed; and, at the time of the seizure, a portion of this debt remained unpaid and due to the defendant, to whom the note and the security of the deed of trust had been assigned. Wallach's interest in the property was, therefore, an equity of redemption; and, by the confiscation sale, the purchaser acquired that interest, and held it with the security of the deed of trust given to protect the payment of the promissory note. On the 3d of February, 1866, Wallach, having returned to Washington, made a deed purporting to convey the lot in fee-simple with covenants of general warranty to Van Riswick, the purchaser at the confiscation sale. His wife joined with him in the deed.
So the case stood until Feb. 3, 1872, when Wallach died. The complainants then filed this bill, claiming, that after the seizure, condemnation, and sale of the land, as the property of a public enemy engaged in the war of the rebellion, nothing remained in him that could be the subject of sale or conveyance; consequently, that nothing passed by the deed from Wallach and wife; and that they, being his heirs, had, upon his death, an estate in the land, and a right to redeem, and to have the conveyance of their father to Van Riswick declared to be no bar to their redemption. The relief sought is redemption of the deed of trust, discovery (particularly of the amount remaining due upon Charles S. Wallach's note), an account of the rents and profits of the land since the death of Wallach, a decree that his deed of Feb. 3, 1867, is of no effect as against the plaintiffs, a decree for delivery of possession of the lot, and general relief.
To this bill the defendant Van Riswick demurred generally; and the court below sustained the demurrer, and dismissed the bill. Hence this appeal.
Mr. Albert Pike and Mr. L. H. Pike for the appellants.
Wallach's conveyance passed nothing. By the seizure and condemnation, all his estate vested in the United States.
The forfeiture is the same as that incurred by the tenant in the olden time who had violated his obligation of homage and fealty. If, at his death, his heirs were permitted to take, it was not because of any right in them, but out of grace and favor.
The whole estate of the offender vested in the crown in case of forfeiture. Brown v. Waite, 2 Mod. 130.
Congress, by the act of July 17, 1862, intended to take the whole estate, but, exercising by the joint resolution the discretion and grace which in England belonged to the king, caused it, at the offender's death, to pass to his heirs.
The act re-enacted the old English law in all its rigor. The joint resolution did not propose to do more than apply the constitutional saving. By virtue of it, the heirs, at the death of the ancestor, take the whole fee from the United States as by grant, and yet also as heirs by descent, the statute making to that end a new rule of law.
The declared purpose to 'punish treason,' and to 'confiscate the property of rebels,' would be defeated if the fee of the confiscated land were subject to the disposal of its rebel owner. It was seized as enemy property, because that enemy was a rebel. But, inasmuch as he was a citizen of the United States, President Lincoln was right in maintaining that the Constitution forbade a perpetual forfeiture of the property. The words, 'during the life of the person attainted,' where they occur, so far from confining the forfeiture to his life-estate, leaving in him the fee, unquestionably mean, that whilst all his interest in, or alienating power over, the land, shall, during his life, be absolutely forfeited and extinguished, his treason shall not work the disinherison of the children.
If it were necessary to give effect to the act and joint resolution, the court would consider the forfeiture equivalent, by virtue of the law, to a conveyance by Wallach to the United States, to their use during his life, and to that of his heirs after his death.
The joint resolution is virtually a covenant to stand seized to uses.
Forfeiture is a kind of alienation. Brown v. Waite, supra.
The proceedings in question vested the whole estate and property of Wallach, in the land, in the United States. As, under an act of attainder, with a saving in favor of all others than the attainted party and his heirs, 'the saving removed the fee-simple out of the person of the king, and conveyed it to the third person whose right was saved, so that he could have it by means of the saving, for it was in the king when the condition was performed, and it must go out of him to the person by the condition and by the saving;' so the whole fee was vested in the United States, and, at the death of Wallach, was removed out of the United States by the condition and saving in the joint resolution, and was thereby conveyed to his heirs. Lord Lovel's Case, Plowd. 488. See, further, History and Proceedings of the House of Lords, vol. ii. p. 261; Foster's Crown Law, 222; Thornby v. Fleetwood, 1 Comyns, 207; Lord de la Warre's Case, 11 Co. 1 b; Earl of Derby's Case, 1 Ld. Raym. 355; Thornby v. Fleetwood, Str. 363; Wheatly v. Thomas, 1 Lev. 74; Burgess v. Wheate, Eden, 128; Sheffield v. Ratcliffe, Hob. 335 b; 6 Hansard, Parl. Hist. 796; 2 Burnet, Hist. of His Own Times, 837, 838; 3 Macaulay, Hist. of Eng. 241, 242; Dowtee's Case, 3 Coke, 10; Page's Case, 5 id. 52; The Lord Advocate v. Gordon, 1 Craigie, 508.
Mr. T. J. Durant and Mr. T. A. Lambert for the appellee.
1. The bill is multifarious in this, that it asserts, 1st, Equity for an account, and to redeem from the operation of the deed of trust of Sept. 28, 1854; 2d, Right to a rescission of the deed or so-called mortgage of Feb. 3, 1866, and to an avoidance of the sale of Aug. 23, 1867; and, 3d, Claim for the possession of the land, by virtue of an alleged settlement created by the act of July 17, 1862, in favor of the complainants, as the right heirs of Charles S. Wallach. Story, Eq. Pl., sects. 476, 530; Loker v. Rolle, 3 Ves. 4, 343.
2. This court has expressly declared, in passing upon the act and joint resolution which govern this case, that all 'which could become the property of the United States was a right to the property seized, terminating with the life of the person for whose act it had been seized.' Bigelow v. Forrest, 9 Wall. 339; cited and confirmed in Day v. Micou, 18 id. 156. The proceedings in confiscation, therefore, carved a life-estate out of the fee, leaving the latter vested where it had abided before they were instituted. No disability was, or could constitutionally be, imposed upon Wallach, incapacitating him from conveying the fee subject to his forfeited life-estate.
3. Under the decisions of this court, the fee did not for any purpose vest in the United States. It must remain somewhere. The doctrine of a fee in abeyance, or in gremio legis, or in nubibus, is not now the law of real property. Fearne on Cont. Rem., 351, 361; Wms. on Real Prop., 256; 1 Brown & Hudley's Com., 547. If, however, Wallach had, after the proceedings in question, no seisin of the inheritance, the heirs cannot take by descent.
4. Under the amnesty proclamation of Dec. 25, 1868, Wallach was completely restored to the enjoyment of his rights of property and person, however they may have been suspended by the rebellion, except in those cases where his property had by judicial proceedings vested in other persons. Brown v. United States, 2 Kan. 230. Whether he be regarded, therefore, as never having lost his entire estate in his landed property, or as having been restored to its possession by virtue of amnesty, his deed to Van Riswick was sufficient to convey the title in fee to the lot in controversy. Its covenants of warranty, general and special, are binding upon his heirs. If executed before the restoration of his title, the latter are estopped, equally as he would have been in his lifetime, from questioning its operative force and effect. This familiar principle received forcible exposition in McWilliams v. Nesley, 2 S. & R. 507, 518.
MR. JUSTICE STRONG delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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