#### T. ALONZO WALKER, Jr.; PEARL WALKER PUMPHREY AND J. N. PUMPHREY, HER HUSBAND; VIOLA WALKER WASHBURN AND J. E. WASHBURN, HER HUSBAND; GUSSIE WALKER NELSON AND ROBERT L. NELSON, HER HUSBAND; AUGUSTA C. TODD AND WILLIAM H. TODD, HER HUSBAND, v. THE UNITED STATES.

[No. 32734.

Decided February 3, 1919.]

*On the*Proofs.

*Cotton; ownership; guardian and ward.*— In determining tlie jurisdictional question of ownership, in cases brought under the provisions of section 162, Judicial Code, the validity of a sale of cotton to the Confederate States by the tutor of infant owners residing in Louisiana, may be inquired into by this court, even though the property at time of seizure by the Federal Government were in the possession of the purchaser.

*49
      *The Reporter's*statement of the ease:

*Mr. John S. Blair*for the plaintiffs.

*Mr. William F.*Norris, with whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants.

It appears that the Confederate Government had purchased the cotton in question. A bill of sale had been executed and accepted by the Confederate treasurer with an agreement on the part of the vendor to hold the cotton subject to the order of said treasurer, and it was held subject to such order for almost two years — until the Confederacy ceased to exist. The Government held the cotton for export and would have exported it had circumstances permitted. Whoever was the vendor and whatever his authority, his acts had been approved and affirmed by the General Government, and no one could go behind the approval and affirmation of the highest authority of the land, which can not be supposed to have sacrificed the interest of its citizens or to acquire possession of property of widows and orphans in a wrongful or illegal manner. The minor, when his property is sold to an individual without complying with the proper legal formalities as prescribed by law, may sue the tutor for damages, or the purchaser for return of the property, but no such suit could be brought against the General Government, and its acceptance of the property was an affirmation of the proceedings which could not be disputed.

The United States Treasury agent was justified in taking the cotton. He was not only justified but would have been guilty of neglect of duty in not taking it. The cotton was found at the place indicated by the Confederate records. It had been sold to the Confederate Government; bore the brand “ C. S. A.”; had been paid for in Confederate bonds and cash; and a bill of sale had been given. It was marked by the Government with its symbol of ownership. The Government had appropriated and held the cotton in its firm possession for nearly two years. The transaction was closed by the action of the highest power of the land. The heirs *50might sue an individual purchaser or the tutor under the State law and recover damages or return of the property; but because suit might be brought under the Louisiana law against the individual purchaser or the tutor, it does not follow that such suit could be brought against the Government and damages recovered therefrom.

The cotton was purchased by the supreme authority of the Confederate States; held in firm possession by that Government. Whatever the title of the former owner, or from whom purchased, that title w'as invested in the Government. *Whitfield*v. *United*States, 92 U. 'S., 105.

When property was found on a plantation, as described in the Confederate records, and which the Government agent was directed to appropriate by order of the United States Treasurer after the close of the war, and to which the Confederate Government claimed title by virtue of purchase for its bonds and cash, and which it had held waiting opportunity for exportation — it had been Confederate States property. It was the duty of the agent to take it in conformity with his instructions and it would have been a neglect of duty on his part not to have taken it. It was not the duty of the agent to inquire as to the title of the Confederate Government to the property or whether or not that Government had acquired title rightfully or wrongfully. If it had acquired that property during the war and held it until the close of the war, it was presumed to be the property of the Confederate States, and as such it became the property of the United States, and possession and title vested in the United States upon the downfall of the Confederacy. *United States et al*v. *Huchdbee,*16 Wall., 414; *Titus*v. *United States,*20 Wall., 475.

Discussing the law of *jus postliminii,*Mr. Wheaton says:

Grotius also states that by the more recent law established among the European nations a possession of twenty-four hours was deemed sufficient to divest the property of the original proprietor, even if- the captured thing had not been carried *infra praesidia.*And Loccenius considers the rule of twenty-four hours’ possession as the general law of Christendom at the time when he wrote. (Lawrence’s Wheaton, 653.)

*51The rule with reference to captures on land during the late Civil War is stated in *Titus*v. *United*States, supra, as follows:

In war the public property of an enemy captured on land becomes, for the time being at least, the property of the conqueror. No judicial proceeding is necessary to pass the title. * * * The capture was the result of many battles, but it was none the less, on that account, captured property, needing no judicial sentence of forfeiture to make it absolutely the property of the United States.

During the Civil War the relations between the United States and the Confederate States was the same as that between two hostile powers, the Confederate States being accorded the rights of a belligerent, their inhabitants becoming-public enemies, and the law relating to the transactions of the Civil War was international and not constitutional, as was held by this court in the case of *Stovell*v. *United*States, 26 C. CIs., 240, in the following language:

“ It has been held in an unbroken series of decisions * * * that the Civil War in all hostile operations must be regarded as international.”

And that — ■

“All property within enemy’s territory is in law enemy’s property, just as all persons in the same territory are enemies.

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“ When the United States accorded to the Confederate States the rights of a belligerent, they became a hostile power and their inhabitants public enemies.”

This court has also held that the Government is not liable for the proceeds of property taken by or captured from the public enemy, because it had belonged to a loyal citizen and been unlawfully confiscated; nor does a trust result from such a capture; nor can a contract be implied from the holding of the enemy. *Fawcett*v. *United*States, 25 C. CIs., 178.

Booth, Judge,

reviewing the facts found to be established, delivered the opinion of the court.

This is a suit under section 162 of the Judicial Code to recover the proceeds in the Treasury accumulated there from the seizure and sale of cotton subsequent to June 1, 1860, by *52a special agent of the Treasury appointed for the purpose. The facts are not in dispute. T. Alonzo Walker and Augusta C. Walker, afterwards Augusta C. Todd, were brother and sister, being the minor children and sole heirs at law of William G. Walker, deceased, a citizen and resident of Bienville Parish, La. Prior to July 17,1854, Jasper Gibbs, a resident of the same locality, was legally appointed tutor for said minor children, and continued to act as such until January 24,1860. On this latter date one John H. Walker succeeded Gibbs as tutor for Augusta O. Walker, Gibbs remaining as tutor for T. Alonzo Walker. On May 23,1863, Gibbs, acting-in his capacity as tutor, made and executed an alleged bill of sale in writing, wherein he undertook to sell to the Confederate States Government 198 bales of cotton, the joint property of T. Alonzo and Augusta O. Walker, accepting in payment for the cotton $17,000 in bonds of the Confederate States of America and $416.20 in cash. The written instrument is set forth *in haec vert a*in the findings. The cotton was never in the physical possession of the Confederate States of America, remaining on the Walker premises subject to order. On August 25,1865, it was seized by a special agent of the Treasury Department, sold, and the proceeds of sale deposited in the United States Treasury. The minor children of Walker never received the Confederate States of America bonds, no authority was ever granted the tutor to sell the cotton, and no account of the sale or the proceeds arising therefrom was ever made or reported to any court by either tutor. A claim was made by the original claimants for the loss of the cotton under the act of May 18, 1872, 17 Stat., 134, the same being-denied under the theory of a lawful seizure, the cotton belonging to the Confederate States Government.

If the cotton in issue was the property of the Confederate States Government, it is obviously true that no recovery could be had under the act of 1872 or under the present statute. Wh*itfield*v. *United*States, 92 U. S., 165; *Thompson*v. *United*States, 246 U. S., 547.

The single issue, therefore, is as to the ownership of the cotton. The invalidity of the sale to the Confederate States of America is manifestly predicated upon the then minority *53of the Walker children. T. Alonzo Walker did not attain his majority until 1869, and his sister, Augusta C., was the younger of the two. It seems from the face of the record to require little argument to sustain the case. The relationship of tutor and minor under the laws of Louisiana is set forth at length and in detail in the civil code of the State, edition 1861. It is quite unnecessary to repeat them here. Suffice it to say that all the salutary provisions looking toward the conservation and jealous care of the minor’s property and person obtain. The tutor’s authority in the premises is circumscribed by the usual wholesome restraints that absolutely preclude him from dealing with the minor’s estate in any other way than therein prescribed. *Abraham*v. *Lob,*A. D. 1883, 35 La. Annual, 377, 381; *Schiller*v. *N. O. R.*W., A. D. 1884, 36 La. Annual, 77; *Fix*v. *Koepke,*44 Ann., 745; *White*v. Nesbit, 21 La., 600.

The defendants contest the right of recovery, not upon an insistence' going to the validity of the sale as between the minors and the Confederate States of America, but, if we correctly grasp it, upon the theory of the transaction as an act of war by the Confederate Government; that while the minors unquestionably had a right of action against the tutor, nevertheless it does not inure to them under section 162 because the cotton had been sold to and was in the possession of the Confederate States of America at the time of taking by the special agent of the United States Treasury, and therefore his seizure was a lawful one, no duty resting upon him to ascertain more respecting title than was obvious from the written bill of sale before him.

The Supreme Court in *Whitfield's case*decided that the Confederate States Government could acquire title to personal property by purchase from the *owner*thereof. “ Contracts of sale made in aid of the rebellion will not be enforced by the courts, but completed sales occupy a different position.” If, then, power resided in the Confederate Government to make a contract of sale, can it be said that under the terms of section 162 of-the Judicial Code this court is precluded from going into the transaction to ascertain the validity of the same? Under section 162 of the code this *54court is granted jurisdiction “to hear and determine the claims of those whose property was taken subsequent to June first, eighteen hundred and sixty-five * * * and the Secretary of the Treasury shall return said net proceeds to the owners thereof, on the judgment of said court.” The vital issue, the jurisdictional fact under the law, preliminary to further investigation is *ownership.*Whatever merit there may be in defendants’ contention, it fails of applicability here, for the Congress of the United States by positive legislation has opened this court to a class of claimants, giving them both a right and a remedy whereby they may have redress for the seizure and sale of their cotton under the circumstances therein mentioned, a statute which by its terms supersedes the general rules applicable to war and brings the transaction to a justiciable issue. The intention of Congress is explicit and free from ambiguity. The fact of possession by the Confederate States of America can not possibly estop a rightful claim of ownership. If the Confederate States of America could by acceptance of possession thereby affirm and legalize a transaction admittedly illegal and Amid, then section 162 of the code would be decidedly impotent in reaching all of the class it was patently intended to reach. The special agent of the Treasury was put on notice that he was dealing with the property of minors; the bill of sale disclosed the fact; he seized the property at his oavii peril, in view of section 162 of the code, and it can no more be said that his acts are unquestionable than it can be successfully asserted that an acknowledged wrongdoer can by subsequent conduct convert the illegal transaction into one within the protection of the law to the detriment of the party wronged. The cotton in this case was not captured or seized by the Confederate States of America. The transaction was one of bargain and sale, similar in this respect to the *Whitfield*case, and the rules of international law do not apply.

The cotton in question was the acknowledged property of two infants. It was lawfully in the custody of tutors to be dealt with in conformity with the law authorizing their appointment. It could not be sold except in the way specifically marked out in the Louisiana Code, and the minors were remediless until 1872. The very instant they could dis*55avow the sale they did so. An adverse decision prolonged the repose of the claim, and it was not until the enactment of the present law that it could again be asserted. This, we think, constitutes a sufficient disavowal to preclude any assumption of ratification after the minors became *sui juris,*and in our opinion brings the case fairly within the law.

Judgment is awarded the plaintiffs in the sum of $17,305.84, to be paid as directed by section 162 of the Judicial Code. It is so ordered.