583.

Ship., 473; Wheat. Int. L., by Lawrence, 547; The William Bagaley, 5 Wall., 377, 18 L. ed., Attempt was made, in argument, to distinguish the first case from the second, upon the ground that the supposed notarial act of sale of the 6th of May, under which the plaintiff in the first suit claims title, was, on the 31st of that month, registered in the Parish of Orleans, where the land is situated; but it will be seen, by reference to the record, that the act of sale was made subsequent to the secession of the State, and during the period when the parish where the property is situated was temporarily within the confederate lines.

Enemy parties conveying or accepting conveyances of real properties, under such circumstances, must be understood to do so with the knowledge that the rightful sovereign, if he is successful in regaining the sovereignty of the State or district, may refuse to recognize the validity of such a transfer, in a case where it appears that the grantor before the act of transfer was executed, had been guilty of treasonable acts against his rightful sovereign, and that both grantor and grantee were at the time engaged in war against the rightful government. U. S. v. Huckabee, 16 Wall., 414, 21 L. ed., 457.

Proof of a decisive character is exhibited in the record, that the rule of the Confederate States over the parish where the property is situated ceased on the 2d of May, 1862, when the national army landed there and took possession of the parish. The Venice, 2 Wall., 258, 17 L. ed., 866; The Ouachita Cotton, 6 Wall., 521, 18 L. ed., 935.

Military possession by the Confederates followed secession; and the insurgents continued to hold the city from the date of secession to the time when our army landed there, or a few days before, when the mayor of the city declared that the city was undefended and at the mercy of the victors.

Both the vendor and vendees were engaged in open rebellion against the United States at the time the notarial act of sale was passed within the insurgent lines, the property at the time being situated within the federal lines; 302] from which it follows that the vendor was legally incompetent to make sale and delivery of the property to the vendees, and that the vendees were legally incompetent to accept sale and delivery from the rebel vendor. Actual delivery of the property could not lawfully be made, nor could the supposed act of sale be lawfully registered in the parish where the land is situated; the Proclamation of the President providing that all commercial intercourse between the insurrectionary State and the inhabitants thereof with the citizens of other States and other parts of the United States is unlawful, and will remain unlawful until such insurrection shall cease, or has been suppressed. 12 Stat. at L., 257, 1262.

Courts of justice, even with the consent of the opposite party, will not enforce a right or contract in violation of a statute, although not expressly declared void by the enactment. Powell, Cont.. 166; Com. Cont., 59; Bank v. Owens, 2 Pet., 527; Coppell v. Hall, 7 Wall., 542, 19 L. ed., 244.

In war, says Chancellor Kent, every individual

of the one nation must acknowledge every individual of the other nation as his own enemy, because the enemy of his country. It reaches to intercourse, transfer or removal of property, to all negotiations and contracts, to all communication, to all locomotive intercourse, to a state of utter occlusion to any intercourse but one of open hostility, and to any meeting but in actual combat. Griswold v. Waddington, 16 Johns., 438; The Rapid, 8 Cranch, 155.

All intercourse, says Story, between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the exercise of the rights of humanity. The Julia, 8 Cranch, 181.

If a plaintiff cannot open his case without showing that he has broken the law, courts of justice will not assist him to recover, whatever the equities of his case may be. Fowler v. Scully, 72 Pa., 456.

Support to the opposite theory, it is supposed, may be derived from the case of Kershaw v. Kelsey, 100 Mass., 561; but it is difficult to see what foundation there is for the supposition, if the decision is confined, as it should be, to the matters involved in the controversy. Take the facts as reported, and they are *as fol- [303 lows: that the defendant, a citizen of Massachusetts, being in Mississippi in February, 1864, took a lease for one year from the plaintiff, a citizen of Mississippi, of a cotton plantation situated in the latter State, for a rent of $10,000, half in cash and half to be paid out of the cotton crop; the lessor agreeing to deliver, and the lessee to receive and pay for, the value of the corn then on the plantation.

It did not appear whether the defendant went into that State before the war or after it began; nor was there any evidence of any intent on the part of either party to violate or evade the laws, or to oppose or injure the United States. Every presumption of that sort is negatived; but it appeared that the defendant paid the first installment of rent, took possession of the premises, used the corn there, provided the plantation with supplies to the amount of $5,000, planted and sowed it, and, in the early spring, was driven away by rebel soldiers, and never but once afterwards returned to the plantation.

How long the defendant had resided there prior to the contract of lease did not appear; but the report states that the plaintiff continued to reside on the plantation, raised a crop of cotton there, and delivered it to the son of the defendant, by whom, in the autumn of the same year, it was forwarded to the defendant, who sold it and retained the profits, amounting to $10.000.

Speaking of the facts, the court say, in effect, that the lease was made within the rebel territory, where both parties were at the time, and that it seems to contemplate that the lessee should continue to reside there throughout the term; that the rent was in part paid on the spot, and that the residue was to be paid out of the produce of the land; that the corn the value of which is sought to be recovered in the action was delivered and used on the plantation; that no agreement was made that the cotton crop should be transported, or the rent sent back, across the line between the belligerents; that no contract or communication appears to have been made across that line relating to the lease, to

to that effect are numerous; but, inasmuch as the question is one of decisive importance, it is deemed advisable to refer to all the leading cases. Lee v Darramon, 3 Rob. (La.), 160; Gradenigo v. Wallett, 9 Rob. (La.), 14; Crear v. Sowles, 2 La. Ann., 598; Tulane v. Levinson, 2 La. Ann., 787; Tear v. Williams, 2 La. Ann., 869; Sess. L. La., 1855, p. 345.

Third persons, with respect to a contract or judgment, are defined by the Code of 1824 to include all persons who are not parties to a judgment or contract; and the same definition 307] is given to the same phrase by the Code of 1870. which is more immediately applicable to these cases. Code 1824, art. 3522, n. 32, p. 1110; Code 1870, art. 3556, n. 32, p. 428.

Persons having no pecuniary interest in an appeal, and not aggrieved by the decree, are properly denominated third persons in respect to the appeal. Morrison v. Trudeau, 1 Mart. (N. S.), 384; Williams v. Trepagnier, 4 Mart. (N. S.), 342; Lafitte v. Duncan, 4 Mart. (N. S.). 622; Henderson v. Cross, 2 Rob. (La.), 391.

Those not parties to a written agreement or instrument by which their interest in the thing conveyed is sought to be affected are properly designated as third persons in the jurisprudence of that State. Brosnaham v. Turner, 16 La., 433; Wade v. Marshall, 5 La. Ann., 157; Williams v. Hagan, 2 La., 125; Code 1824, art. 3522, n. 32; McManus v. Jewett, 6 La., 537; Kittridge v. Landry, 2 Rob. (La.), 72.

When the act of sale of the 6th of May was first offered in evidence, it was not accompanied, by the certificate of registry, and was excluded, upon the grounds theretofore sufficiently explained. All that need be added in support of that ruling is to say that it is fully sustained by the statute law of the State, and by many decisions of the highest court of the State, to which reference has already been made. Ruled out, as it was, on that occasion, the plaintiff offered it again, with the certificate of registry annexed; and it was again excluded, upon the further ground that the registration was null and void, and inadmissible in evidence, because the vendees at the time, and before and afterwards, were sojourning in the Parish of St. Helena, and were enemies of the United States and, therefore, that the registration of the act of sale could not legally be made.

Sufficient has already been remarked to show that that ruling is correct, unless it be denied that the statute law of the State, and the repeated decisions of the highest court of the State for nearly seventy years, furnish the rule of decision. Since the 24th of March, 1810, it has been law in that State that "No notarial act concerning immovable property shall have any effect against third persons until the same shall have been recorded in the office of the 308] judge of the parish where such immovable property is situated." 3 Martin, Dig., 140, sec. 7; R. S., La., 1856, 453; R. S., La., 1870, 617.

Any discussion of the facts is unnecessary, as it is conceded that the vendor and vendees were, at the date of the supposed act of sale, resident within the confederate lines, and that they were enemies of the United States; that the grantor was a member of the Confederate Congress; and that the grantees were officers in the Confederate Army, and were engaged in rebellion 96 U. S. U. S., Book 24.

against the lawful government; from which it follows that a lawful registry of the property could not be made in the parish where it is situated, without which, the express statute law of the State is that the supposed act of sale shall not have any effect against third persons. Nor is there any difficulty in supporting the decision of the court upon the other ground assumed in the ruling. to wit: that the supposed act was but the giving in payment, as understood in the jurisprudence of that State, which is never effectual to pass the title of property in that State, whether movable or immovable, without delivery. It is of the very essence of the dation en paiement, say the Supreme Court of the State, that delivery should actually be made. Neither a sale nor a dation en paiement can avail against an attaching creditor when there has been no delivery. Schultz v. Morgan, 27 La. Ann., 616.

Pothier says that a gift in payment is an act by which a debtor gives a thing to his creditor, who is willing to receive it in the place and in payment of a sum of money or of some other thing which is due to him. Pothier, by Cushing, sec. 601, p. 365; 7 Merlin, Répertoire, verba dation en paiement, p. 55.

Giving in payment, as defined in the jurisprudence of Louisiana, is an act by which a debtor gives a thing to the creditor who is willing to receive it in payment of a sum which is due; and the decision is that it differs from the ordinary contract of sale in this: that the latter is perfect by the mere consent of the parties, even before the delivery, while the giving in payment is made only by delivery. Code 1824, arts. 2625, 2626. And the Code of 1870 employs the same exact words. Arts. 2655, 2656; Durnford v. Brooks, 3 Mart. (La.), 222; S. C., 3 Mart. (La.), 269.

*Separate examination of the second [309 case in this behalf is quite unnecessary, as it is not pretended that the act of sale from the father to the sons was registered in the parish where the property is situated, until nearly six years subsequent to the pretended sale, so that if the universal rule of law is to prevail, that the transfer of immovable property depends upon the law of the place where it is situated, then it is clear that the supposed vendees acquired no title to the premises. Watkins v. Holman, 16 Pet., 57; Corbett v. Nutt, 10 Wall., 464, 19 L. ed., 976; McGoon v. Scales, 9 Wall., 23, 19 L. ed., 545; Lawrence, Wheat., 164, 165.

Wheaton says that the law of the place where real property is situated governs exclusively as to the tenure, the title and the descent of real property, and the notes of the editor fully confirm the proposition.

War, in our jurisprudence, is not an absolute confiscation of the property of the enemy, but simply confers the right of confiscation. Hence it was early determined that British property found in the United States, on land, at the commencement of hostilities with Great Britain, could not be condemned as enemy property, without a legislative Act authorizing its confiscation. Brown v. U. S., 8 Cranch, 110; Lawrence, Wheat., 530.

Discussion of that subject, however, is wholly unnecessary, as the property in question in the cases before the court was confiscated under an Act of Congress, which, it is admitted, gave 46

729

From the passage of the Act of Congress, it became the duty of the President to cause the seizure to be made; and it is not questioned that the power conferred was properly exercised, nor is it denied in argument that all the proceedings were correct, the only defense in the one case and ground of claim in the other being that the person named in the information as the guilty party was not the lawful owner of the property at the time of the seizure. Most of the grounds of that claim and defense have already been sufficiently examined and, it is believed, have been fully refuted. Only one more remains for examination, and that is, that the United States are not a third party, within the meaning of the state law and, therefore, 310] that an act of sale never registered in the parish where the property is situated is sufficient to defeat the title of a purchaser derived under the confiscation proceedings and the decree of condemnation.

Such a theory finds no support in the words of the Act of Congress, nor is there any authority to sustain it other than what is found in the opinion of the state court in the case now here for re-examination. Burbank v. Conrad, 27 | La. Ann., 152. Cases of the kind are never regarded as authority, for the reason that they are, by the express words of the Act of Congress providing for their review, subject to be modified or reversed; nor can it be admitted that there is any foundation for such a rule, as it would render the Confiscation Act a public snare and a delusion.

Subsequent purchasers and attaching creditors, it is admitted, would find protection in such a case; but the argument is, that enemies of the United States engaged in war against the lawful government, and resident in the enemy territory, may defeat the right of the government to punish treason by secret transfers of enemy property situated within the lines of the Federal Army, without its being possible for the officers of the United States to ascertain to whom any such transfer was made.

Unlawful registration is no better than none at all. for the reason that, being void, it does not operate as notice to any third party, and if so, then it follows that neither the United States nor the grantees of the United States had any knowledge that the title of the guilty party had been previously transferred under the laws of the rebel States. Fraud is not imputed to the United States, and it is as certain as truth that the purchasers of the properties were as innocent of fraud as their grantors.

Congress intended by the Confiscation Act, when it was duly executed, to deprive the guilty owner of the means by which he could aid the enemy, and it left in him no estate which he could convey for that or any other purpose. Wallach v. Van Riswick, 92 U. S., 202, 23 L. ed.. 473.

Where a party, domiciled at the beginning of the war in New Orleans, subsequently went within the rebel lines, and there engaged actively in business, and while so engaged purchased, 311] *cotton which, when our army at a later ¦ period re-occupied the city, was seized and sold, and the proceeds paid into the Treasury, it was held, by the unanimous decision of this court,

void, and that it gave the purchaser no title whatever. Mitchell v. U. S., 21 Wall., 350, 22 L. ed., 584; Desmare v. U. S., 93 U. S., GO5, 23 L ed., 959. Whatever interest he had in the property had been seized as forfeited to the United States and placed, pending the suit, beyond his reach or that of his creditors. All subsequently acquired rights were subject to the prior claim of the United States if perfected by a decree of condemnation. Pike v. Wassell [ante, 307].

Human ingenuity, however great, cannot distinguish the principle ruled in those cases from the case before the court; and still it is insisted in argument that the grantees in the deed from the guilty owner acquired a good title against the United States, without delivery of the property and without legal registration in the parish where the property is situated. Immovable property, says Woolsey, in his treatise on International Law, follows the lex rei sitæ, or place where it lies; and he adopts the rule promulgated by foreign writers, that he who wishes to gain, have or exercise a right to such property betakes himself for that purpose to its place, and subjects himself voluntarily to the local law which rules where the property is situated. Woolsey, Int. L., sec. 71.

Foreign codes, jurists and the decided cases, says Westlake, agree with the common law in maintaining the exclusive claims of the situs to the jurisdiction concerning immovables. Differences of opinion, it is said by Burge, exist among jurists as to the rule of decision where the contract affects the person as well as things; but he says there is no difference among them in adopting the lex loci rei sit in all questions regarding the modification or creation of estates or interests in immovable property. 2 Burge, Com. Col. & For. L., ch. 9, p. 841.

Obligations to convey if they be perfected secundum legem domicilii, may be binding; but the conveyances themselves of immovable property will not be effectual, unless executed according to the requirements of the local law. In the conveyance of immovable property or of any right affecting the same, the *gran- [312 tor must follow the solemnities of the law of the place in which the property lies, and from which it is impossible to remove it; for, though he be subject with respect to his person to the lex domicilii, that law can have no authority over property which has its fixed seat in another political jurisdiction, and which cannot be tried but before the courts and according to the laws where it is situated.

Two fatal defects, therefore, exist in the supposed title of the sons to the properties in controversy, as shown by the most conclusive evidence. (1) That the subject-matter of the respective sales was never delivered to the supposed grantees, as required by the lex loci rei sitæ. (2) That neither of the supposed acts of sale was ever lawfully registered in the parish where the property is situated, from which it follows, in case either of the alleged defects is shown, that the decree of condemnation vested the title to the same in the United States.

Apply those rules to the case before the court, and it is clear that the judgment in the first case should be affirmed, and that the judgment in the second case should be reversed.

Err.,

V.

CHARLES A. CONRAD et al.

(See S. C., Reporter's ed., 291-312.)

Sales between parties in hostile territory-Louisiana Act.

1. Parties, being public enemies in hostile territory, are competent to transfer or to accept the title to real property situated within the federal lines. 2. The Louisiana Registry Act was not intended to protect the United States in the exercise of its power of coniscation, from the consequences of previous unrecorded sales of the alleged offender. If the alleged offender possessed no estate in the premises at the time of their seizure under the Confiscation Acts, nothing passed to the United States by the decree, or to a purchaser under it. [No. 209.]

Argued Feb. 7, 1878. Decided Mar. 25,

1878.

In Error to the Supreme Court of the State of Louisiana.

The plaintiff in error, Burbank, brought suit in the Fifth District Court of New Orleans, against the two Conrads, praying for a decree of partition, and order for an inventory, and other interlocutory orders required in such an action. The State District Court decreed a partition of licitation. The Conrads appealed to the Supreme Court of Louisiana, where this judgment was reversed, and it was decreed that plaintiff's demand be rejected, and that defendants have a valid title to the property described in the petition, and that they be put in possession thereof. The case further appears in the opinion. Messrs. J. Q. A. Fellowes and Durant & Hornor, for plaintiff in error.

Messrs. C. M. Conrad, C. A. Conrad and L. L. Conrad, for defendants in error.

consideration. But it is contended that the parties, being public enemies in hostile territory, were incompetent at the time to transfer or to accept the title to real property situated within the federal lines. And if this position should not be sustained, it is further contended that the act of sale not having been recorded in the City of New Orleans until after the condemnation of the property by the District Court and its sale by the marshal, the plaintiff, as purchaser, took the title unaffected by the transaction; in other words, that his position is that of a third party buying upon the faith of the title standing in the name of the elder Conrad upon the public records.

We have recently had occasion, in Conrad v. Waples [ante, 721], to consider the first of these questions, and it will be unnecessary here to do more than refer to our opinion in that case. And the second question requires only a brief notice. The object of requiring a public record of instruments affecting the title to real property is to protect third parties dealing with the vendor, by imparting notice to them of any previous sale or hypothecation of the property. and to protect the purchaser against any subsequent attempted disposition of it. In Louisiana. the conveyance is valid between the parties without registration, and passes the title. The only consequence of a failure of the purchaser to place his conveyance on the records of the parish where the property is situated is that he is thereby subjected to the risk of losing the property if it be again sold or hypothecated by his vendor to an innocent third party, or if it be seized and sold by a creditor of his vendor for the latter's *debts. The second purchaser from the [293 vendor and the bidder at the judicial sale would, in that case, hold the property. The United States never stood in the position of the second purchaser of the property sold by the elder Conrad. They were not purchasers at any sale

This is a suit for a partition of certain real property situated in the City of New Orleans in the State of Louisiana. The plaintiff alleges that he is the owner of an undivided half of the premises; that the defendants are the owners of the other undivided half; and that from the nature of the property it cannot be conveniently divided in kind. He therefore asks a partition by licitation; that is, by a sale of the premises and a division of the proceeds.

The plaintiff asserts title to an undivided half by a deed of the marshal of the United States, executed to him upon a sale under a decree of the District Court, condemning and forfeiting 292] *the property to the United States, in proceedings taken against it as the property of Charles M. Conrad, under the Confiscation Act of July 17, 1862, 12 Stat. at L., 589.

The defendants assert title to the whole property by a sale by public act, made to them by their father, the said Charles M. Conrad, before the recorder and ex officio notary public of the Parish of St. Mary, in Louisiana, on the 3d of June, 1862. This parish was then within the confederate lines; and the Conrads, father and sons, were engaged in the rebellion against the United States. The act of sale was not placed on record in the City of New Orleans until 1870. The good faith of the parties in the transaction

the land, whatever that was, to be seized and condemned. By the decree of condemnation, that estate vested in them for the period of his life. His estate for that period was then their property. The statute declares that the property condemned "Shall become the property of the United States, and may be disposed of as the court shall decree." It was the property of the United States, therefore, which was sold and conveyed at the marshal's sale. The United States acquired by the decree, for the life of the offender, only the estate which at the time of the seizure he actually possessed; not what he may have appeared from the public records to possess, by reason of the omission of his vendees to record the act of sale to them; and that estate, whatever it was, for that period passed by the marshal's sale and deed; nothing more and nothing less. The Registry Act was not intended to protect the United States in the exercise of their power of confiscation from the consequences of previous unrecorded sales of the alleged offender. It was in the power of Congress to provide for the confiscation of the entire property, as being within the enemy's country, without limiting it to the estate remaining in the offender; but, not having done so, the court cannot enlarge the operation of the stringent provisions of the statute. The plaintiff had notice of the character and legal effect of the