#### MARCELLUS O. MARKHAM ET AL., HEIRS, v. THE UNITED STATES.

[Congressional,

11137.

Decided April 12, 1909.]

*On the Proofs.*

The Senate refers a bill under the Tucker Act providing for the payment of a claim “ *for the use and occupation of buildings in Georgia by the military forces of the United States during the war of the*rebellion.” The claimants request the court to find that the late owner was loyal, and they produce a record of this court in a captured property case finding that the claimant was loyal throughout the war of the rebellion. The defendants produce documentary evidence not before the court on the previous trial which establishes the fact that the late owner did render aid and comfort to the Confederate governihent.

I. The fact that this court found a claimant loyal in a captured property case will not preclude it from finding in a Congressional case, for the information of Congress, the additional facts that the claimant served in a local Confederate military organization; that he contributed money to the support of other similar organizations; that he sold cotton to the Confederate authorities, and that he withheld these facts from the court on the former trial.

II. Though a claimant could not testify in his own behalf in a captured property case, that fact did not excuse his concealing from the court his personal relations with the Confederate government.

*The Reporters'*statement of the case:

The following are the facts as found by the court: •

This is a claim for use and occupation of real estate belonging to claimants’ decedent, William Markham, of Fulton County, State of Georgia, by the military forces of the United States during the late civil war.

On March 2, 1908, the following bill was referred to this court by resolution of the United States Senate, under the provisions of the act of March 8, .1887:

“A BILL For the relief of the heirs of William Markham, deceased.

*“Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That *520the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to the heirs of William Markham, deceased, late of Fulton County, Georgia, the sum of ten thousand two hundred and fifty dollars, for the use and occupation of buildings by the military forces of the United States during the late Avar of the rebellion.”

On March 12, 1903, the claimants filed in this court their petition, in which they make the folloAving allegations:

•That during the late civil war their decedent Avas the owner of certain real estate located in the city of Atlanta, State of Georgia; that during said war there were situated on said real estate large buildings used as hotels and stores; that during the said war the United States military forces, under proper authority, took possession of the said buildings and occupied the same as quarters and for other purposes; that said claim is made as follows:

To use and occupation of 5 stores on southwest corner of Alabama and Whitehall streets, fronting on Whitehall (all of them substantial brick buildings, the corner three stories and the remaining 4 two stories each), by General Sherman from September 1, 1864, to November 16, 1864, at $1,000 per month_$2, 500

To use and occupation of 6 stores on the west side of Whitehall street, between Hunter and Mitchell streets, known as the “ Empire Block ” or “ Johnson House " (all three-story brick buildings), *by*General Sherman from September 1, 1864, to November 16, 1864, at $1,600 per month_ 4, 000

To use and occupation of Washington Hall Hotel (Markham House), with furniture, located opposite Union Depot, on the northeast corner of Lloyd street and Georgia Railroad (the main building being a *two-story*wooden structure with large three-story annex of brick, containing in all at least 150 rooms), by General Sherman from September 1, 1864, to November 16, 1864, at $1,500 per month_ 3,750

Total_10,250

The following are the facts now found by the court:

I. During the late civil war the claimants’ decedent, William Markham, resided in Atlanta, Ga.

On March 19, 1866, said decedent filed a claim in this court under the abandoned and captured property act of March 12, 1863, for cotton taken from him by the military *521forces of the United States; and while the claim was pending in this court it was found, on the evidence then before it, “ that the said William Markham had proved to the satisfaction of said court that he, the said Markham, had never given aid or comfort to the recent rebellion waged against the United States.”

At the time of making that finding the court was not aware of the fact of the decedent having served in a local confederate military organization, or that he had contributed money to the support of other similar organizations, or that he had sold cotton to the confederate authorities or furnished them supplies — all of which was within the knowledge of said decedent and withheld from the court, the confederate archives not then being accessible to the court.

The court, therefore, on the evidence since adduced and now before it, finds that the claimants’ decedent, William Markham, was not loyal to the Government of the United States throughout the late civil war.

II. During said war the military forces of the United States, as a military necessity, took possession of the various pieces of property described in the petition and used and occupied the same for a period of about two and one-half months. The reasonable rental value of said property at the time and place was the sum of thirty-eight hundred and fifty dollars ($3,850) for the period of occupancy.

III. The claim for cotton under the abandoned and captured property act, as aforesaid, was presented to the court in March, 1866, but the claim herein for the use and occupation of real estate now claimed for was not presented to any officer or department of the Government until its presentation to Congress in March, 1903, when the United States Senate transmitted to the court the bill referred to in the statement of the case hereinbefore made, and no sufficient reason is adduced showing why the claim was not earlier presented.

*Mr. El/win G. Brandenburg*for the claimants. *Brandenburg <& Brandenburg*were on the brief.

*Mr. Clark McKercher*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

*522Atkinson, J.,

delivered the opinion of the court:

On the 19th day of March, 1866, the claimants’ decedent in this case filed a claim under the captured and abandoned -property act approved March 12, 1863 (12 Stat. L., 820), for cotton taken from him by the military forces of the United States during the late civil war; and on June 25, 1867, the court found “ that the said William Markham had proved to the satisfaction of the court that he, the said Markham, had never given aid or comfort to the recent rebellion waged against the United States,” and a judgment, in conformity with said act, was rendered in the sum of $3,602.70, which amount was duly paid to him.

Thereafter, on the 2d day of March, 1903, said Markham, by the reference of a bill from the United States Senate, filed ■another claim against the United States for rental and use of certain buildings occupied by the United States Army in Atlanta, Ga., owned by him, for which he claimed the sum ■of $10,250. October 28, 1907, claimants’ attorneys filed a brief of the testimony as to the merits of the claim, but did not present any testimony as to their decedent’s loyalty, contending that inasmuch as the court had found him loyal under the captured and abandoned property act the matter of loyalty was *res judicata.*October 31, 1907, defendants filed a motion to strike claimants’ brief from the files for the reason that they had presented no evidence in the case as to their decedent’s- loyalty to the United States during the war of the rebellion. January 6, 1908, said motion was overruled by the court because it was held to be a matter of defense. The case was thereafter duly argued before the court, the main point in the hearing being whether the former finding of lo_yalty of claimants’ decedent under the captured and abandoned property act was *res judicata*in the case now before the court.

The defendants insist that the former decision of the court in a claim under the captured and abandoned property act can not be invoked in this case; that by such reference an independent jurisdiction is conferred upon the court under which all the facts must be reported, and if it should appear that any new material facts are presented touching the question of the loyalty of said decedent, it is not within the power or dis*523cretion of the court to exclude them by the application of the doctrine of *res judicata;*that before said rule can be pleaded it’ must be clearly shown that there was no concealment of important facts from the court or fraud of any kind perpetrated which would lead to a mistake or in any way affect its judgment. *(Le More*v. *United*States, 39 Ct. Cls. R., 485.)

Claimants’ counsel rest their contention mainly upon the plea of *res judicata,*as the court has hitherto decided in the case of *Rymarkiewicz*v. *United States*(42 Ct. Cls. R., 1) and *Daigle*v. *United States*(ibid., 124), in which it was held in both of these cases that the rule of *res judicata*extends to all judicial determinations and to the findings of this court upon the issue of loyalty in certain congressional cases, and where it does not appear that competent evidence was overlooked by the court in a former trial or that the decision of the court was procured by fraud or was based on false testimony the question of a claimant’s loyalty can not be retried in a second suit under another statute.

In the case at bar the claimants’ decedent, when he filed his petition under the captured and abandoned property act, knew that loyalty to the Government of the United States was essential to enable him to recover payment for the cotton taken from him by the armies of the United States; and although under the then existing law he was not allowed to testify in his own behalf, yet that did not excuse him from making known to the court his relations to the Confederate government as a soldier in the state militia and also in furnishing supplies to said government.

While it is not charged that the evidence procured since the hearing of the case under the captured and abandoned property act reveals fraud directly, it does show a concealment of important facts which should at that time have been revealed to the court by the claimants’ decedent in order to enable it to arrive at a just and proper conclusion. The confederate archives were not then available, or at least they had not been classified and published, so that the Government could use the same in its defense. It is clearly evident, therefore, that all of the important facts, although in the breast of said decedent at the time, were not before the court *524in the original trial; hence, we must overrule the claimants’ plea of *res judicata*and decide on the evidence before us that their decedent was not loyal to the Government of the United States throughout the late civil war.

It is ordered that the findings of fact, together with a copy of this opinion, lie certified to the Congress.