#### Elizabeth Gilbert and Others *versus*Nathaniel Bell.

Judgment of confiscation of the estate of an absentee vested such estate in the commonwealth, and is conclusive against such absentee and his heirs, without execution.

A sale by the commonwealth of an estate so confiscated is valid, although made after the return of the absentee to the *United States,*and his taking an oath of allegiance and fidelity to one of the states.

This was a writ of right, prosecuted by the demandants, to recover seisin of a messuage and tenement, with the land under and adjoining the same, situated in *Boston,*and described in the writ; and the demandants allege that *Gibbs Atkins,*their father, was seised thereof within forty years next before the date of their writ, and continued so seised until one *Nathaniel Hickman,*under whom the tenant claimed to hold, afterwards, on the 31st day of December, 1788, unjustly entered and disseised the said *Gibbs Atkins.*

* The tenant claimed the premises as lessee of *Mary Dolbeare*and others, heirs at law of the said *Hickman,*whom he vouched >n, and who appeared and vouched in the commonwealth, who conveyed the premises to their said ancestor, with warranty. And the commonwealth, by their *Solicitor-General,*appeared and pleaded that the said *Bell,*as lessee of the said *Mary Dolbeare*and others, had more right to hold the premises demanded than the said *Elizabeth Gilbert*and others had to recover the same. Upon which plea issue was joined.

At the trial of this issue, which was had before the *Chief Justice,*at the last November term in this county, it was agreed that. *Gibbs**49*Atkins,*father of the demandants, was seised of the demanded premises on the 2d day of January, 1781, and ■ that he died in *Boston*on the 22d day of February, 1806.

To maintain the issue on his part, the tenant produced a copy of the proceedings in the Inferior Court of Common Pleas for the county of *Suffolk,*in January, 1781 ; wherein was set forth a libel by the then *Attorney-General*of the state of *Massachusetts Bay,*aheging that the said *Gibbs Atkins*had levied war, and conspired to levy war, against the state, and had adhered to the enemies thereof, &c., and had become an alien; and that he was seised of certain messuages and lands, describing them, and among them the demanded premises, and thereupon praying process, &&. The record then states that the said libel was filed January term, 1780, when notifications were ordered to be issued agreeable to law; that such notifications had issued, and proclamation being made, and no person appearing, to claim the premises or defend the suit, judgment was rendered that the said messuages, &c., escheat, enure, and accrue, to the sole use and benefit of the government and people.

The tenant also produced a copy of a deed of *Richard Cranch*and *Samuel Barrett,*dated December 15, 1788, purporting to be the deed of themselves and one *Samuel Henshaw,*authorized by law to sell the estates of conspirators and * absentees, lying in the county of *Suffolk,*and to sell to the said *Hickman*the demanded premises, as the estate of the said *Gibbs Atkins,*an absentee, with a covenant, in behalf of the commonwealth, to warrant the premises against the lawful claims of all persons; the said deed being executed and acknowledged by the said *Cranch*and *Barrett*only, and recorded.

It was also in evidence that the said *Hickman,*immediately after the execution of the said deed, entered upon the premises, and that he and his heirs have ever since possessed the same.

The demandants offered evidence that the said *Gibbs Atkins,*on the 10th of April, 1783, took the oath of allegiance and fidelity to the state of *South Carolina;*and that he was married at *Boston,*on the 9th of June, 1788, his widow being still living.

A nonsuit was directed by the judge, which was to be set aside, and a general verdict entered for the demandants, if the Court should be of opinion, upon the facts aforesaid, that they were entitled to recover.

*Whitman,*for the demandants,

contended that the deed of *Cranch*and *Barrett,*not being pursuant to the authority vested in them by the government, passed nothing to *Hickman. Henshaw*was joined in the commission with them, and there is no provision in the act *50appointing them, that a majority shall be competent to the trust. (1)

But if all the commissioners had joined in the conveyance, the deed would have been void. Before the conveyance, *Gibbs Atkins*had returned to the *United States,*and had been received as a citizen thereof; and it was too late then to divest him of his estate as an absentee. (2) Besides which, the treaty of peace expressly provided that no confiscations should thereafter be made, and no person suffer any loss or damage in his property, by reason of the part he might have taken in the war. The confiscation was not perfected by the judgment, since no writ of possession was ever executed.

* *Aylwin*for the tenant.

(1)

*Stat.*1781, *March 2.*Vide *2 Mass. Laws, App.*c. 77, § 10.

(2)

*2 Mass. Rep.*266.

Parker, C. J.,

delivered the opinion of the Court. The judgment of confiscation is conclusive against the demandants; and the commonwealth became seised, without the execution of the *habere facias possessionem,*as was settled in the case of *M’Neil*vs. *Bright & Al.*(3) The ground taken by the counsel for the demandants, that the statute which provides for the confiscation of the estates of absentees did not operate upon the estate in question, because *Gibbs Atkins*did not remain out of the *United States*during the whole war, cannot be supported. For the obvious meaning of the statute is, that, to be subject to its penalties, the person informed against shall remain without at the time the process is instituted, or perhaps when judgment is rendered. *Atkins,*however, did remain without, until after the peace; that is, until after the provisional articles were signed; and he had no great merit in remaining with the enemy until all danger was over, giving them aid and encouragement, and then returning to secure his property.

There is no provision, in the treaty of peace, which affects his case. It provides that there shall be no future confiscations; this was complete before the treaty. The injunction upon Congress, to recommend to the states a restitution upon payment of the purchase money, is of no avail, as the government of the commonwealth passed no act pursuant to such recommendation.

The demandants take nothing by their motion to set aside the nonsuit.

(3)

4 *Mass. Rep.*282.