New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-03-16
DECISION BY JUDGE WOODS
A CONFISCATI CASE
Plantation of BraxtOn Bragg

|
Braxton Bragg VS.. Desire II. Lorio ct ais.
This cause is submitted to the court on the
questions of law and fact, the parties hav-
| ing waived the Intervention OF jury.
The plaintiff brings his action to establish
| his title to and secure possession OF GER
| tain plantation. situated in the parish of
| LafOurche, in the State of Louisiana, known
as the Greenwood plantation. OF which he
AYERS he is seized rs of an estate in fee sim
pie, and whereof, for many years prior to
| the third day of January, 1866, he was in
possession. Hesalleges that on the day last
named the defendants wrOngfully and forci-
| bly, elected him from said plantation, and
took possession of the same, which they still
hold.
The defendants, by way of defense. set
up title in themselves, claiming under a
sale made by the United States marshal on
the third of January. 1866, by virtue of a
writ of venditioni exponas, issued from the
District Court of the United States for
the Eastern District of Louisiana, in the
suit Of the United States VS.. the Greenwood
plantation, the property of BraxtOn Bragg.
This was a proceeding to cbnfiscate said
plantation as enemies property, COM
menced and concluded under the act of
Congress, approved July H. 1862, entitled
IAN act to suppress insurrectiOn. to punish
treason and rebellion, to seize and confis
cate the property of rebels, and for other
purposes.
1t is admitted that prior to the third of
January, 1866, Bragg was seized and in
possession of the lands sued for, and that
he is entitled to recover unless his title has
been divested by said proceedings and sale.
1t Is well settled that irregularities in the
cOntiscation proceedings, mere, errors of
law, can not be taken advantage of in this
collateral proceeding No error can be re-
garded here that does not go to the extent
Of showing want of jurisdiction in the
court which rendered the judgment con-
demning the property. Cooper VS.. Rev-
nolGs, 10 Wall, 30S: Tyler VS.. Defreese, ii
Wall 344. But plaintiff AYERS that the pro-
ceedngs were so defective that the court
acquired no jurisdiction over the property.
and that therefore the decree of c0ndemna-
ton, the marshals sale and deed are abso-
iutely void. The defendants claim that the
court acquired jurisdiction. a nd having juris-
dictiOn, the proceedings are valid until re-
yersed, and that the sale aud deed of the
marshal convey title. This presents one OF
the questions for our determination.
"When we are called upon to sit in review
on the judicial proceedings of the inferior
courts in the enforcement of the contisca-
ton statutes, we are to be governed bv the
reasonable and sound rules applicable to
analogous cases in the courts. and not by a
system of procedure so captious, so narrow.
so difficult to understand or to execute. a.
to amount to a notification of the statute
Tyler VS.. Defrees. II Wall. 3i5:
The record in this case shows that on
September | 1865. the property III question
was seized by the United States marshal
under written authority of the District At
torney. as forfeited to the Uuited States,
and that said property was within the juris-
diction of the court That on the twelfth of
September, 1864 a libel was filed reciting
said seizure. and praying the condemnation
of the property, and that on the same dav a
writ of seizure was issued to the marshal.
directing him to seize and take in possession
the property aforesaid, which was returned
October ,, 1860. with the Endorsement that
he had seized the property in the hands of
Thomas W. Conway. Assistant Commits
sioner of the Freedmen S Bureau. and served
notice of SAID seizure personally on SAID
Conway, etc.
The record. in our opinion. amply slows
a seizure, sufficient to give the court juris-
diction. In the case OF Tyler VS.. Detrees.
IL Wallace, 34S, the only seizure was the
one made by the marshal on the order OF
the district attorney. preliminary to the Ill
ing of the libel. The record showed no
other. Yet in that case, it was held that
the court acquired Jurisdiction. The court
says: The proceeding inauguratet by the
district attorney is designed to bring the
property into court 1t can have no other
purpose or end unless released by his order.
The district attorney and marshal are both
officers of the court. and for that reason are
selected to institute the proceedings by
which the power of :he court is called into
exercise. When, therefore, the property Is
in the course OF this proceeding. seized BY
the marshal, and when. with the filing of
the libel. all that has been done is brought
before the court. and it adopts and recog
nizes their seizure. the property is held by
him subject to the order of the court, and
is under its control. and no second seizure
by the same officer can be necessary
SO in Cooper VS.. Reynolds, 10 Wallace,
800, the court. speaking of the various
modes of ac4 uiring jurisdiction. said:
while the general mode in regard to
jurisdiction in rem requires the actual
seizure and possession of the res by the of
ticer of the court, such jurisdiction may be
acquired BY acts of equivalent import and
which stand for and represent the dominion
of the court over the thing and in effect
subject it to the control OF the court
Among this latter class is the levy of writ
of attachment or seizure OF real estate.
which being incapable of removal and being
within the territorial jurisdiction of the
court, is for all practical purposes brought
under the jurisdiction of the court by the
officers levy Of the writ and return of that
fact
In this case we have not only prelimi-
nary seizure. which the Supreme Court. in
Tyler VS.. Defrees, held to be sufficient to
give the court jurisdiction, but a subsequent
seizure made after the fling of the libel. by
order of court. and the return Of the officer
showing the seizure.
Beyond doubt. therefore. the court ac-
guired jurisdiction.
The plaintiff has pointed out what he
conceives to be numerous irregularities and
errors of law in the subsequent proceedings.
but the fact that the court had jurisdiction
being established then. they do not render
void the decree of the court 1t is binding
until reversed in direct proceeding, and
can not be impeached cOllateraily.
Exception is taken 10 the writ OF yenGi-
toni under which the marshal made the
sale to the defendants, and it is claimed
that this writ is void and conferred no al-
thority ON the marshal, and that his pro-
ceedlngs and sale under it are void and
conveyed no title.
An inspection of the writ shows that it
is in the name of the President of the
United States; that it bears title of the
Judge. and is under the seal of the court.
1t is. however, signed by w. S. Benedict,
deputy clerk. and not by the clerk himself.
This fact, it is claimed. avoids the writ.
By the act of March 3, 1921 q Stat. al
Large 643, the clerk of the District Court
of the United States for the district of
Louisiana is authorized ''to appoint a dep
uty to aid him in the discharge of the du-
ties of his office, for whose acts the clerk
shall in all respects be liable We think
it clear that the deputy appointed by vir-
tue of this act may do any act which the
clerk is authorized to do. Among other
acts, he may sign process N his own name.
narrower construction of the statute
would, under it. be vain and useless With