United States v. Dunnington

.after stating the case as above reported, delivered the opinion of the court.

If the case were the simple one assumed by the claimants of a piece of private property taken for the public use without compensation to the owners, their right to recover its value would be beyond question; but there are other facts which put the case in a somewhat different light. Under the confiscation act of July 17, 1862, 12 Stat. 589 , c.. 195, the lot had been seized as the property of a public enemy and sold to Shepherd; by these proceedings the estate of Charles W. C. Dunnington, the ancestor of the claimants, was-forfeited and vested in the purchaser. There remained, however, the reversionary interest, which upon his demise would become vested in these heirs.

. During his life, and on May 8, 1872, Congress passed an act for the enlargement of the Capitol grounds, by taking in square No. 688, which included the lot in question. 17 Stat. 61 , 83, c. láO, § 6. By section 7 it was made “the duty of the Secretary of the Interior to purchase, from the owner or owners thereof, at such price, not exceeding its actual cash value, as may be mutually agreed on, . . . such private property as may be necessary for carrying this act into effect.” By section 8 it was directed “that if the Secretary of the Interior shall not be able to agree with the owner or owners . . . upon the price ... it shall be his duty to make application to the Supreme Court of the District of Columbia, which court is hereby authorized and required, upon such application, in such mode, and under such rules and regulations as it may adopt, to make a just and equitable appraisement of the cash value of the several interests of each and every owner- of the real estate,” etc. ’ By section 9: “ that the fee simple of all premises so appropriated . . . shall, upon payment to the owner or owners, respectively,, of the appraised value, or in case the said owner or owners refuse or neglect for

The Secretary of the Interior, being unable to agree'with the owners upon a price, on June 11, 1872, informed the court to that effect, and applied for the appointment of commissioners to make a just and equitable appraisement of the cash value of the several interests of each and every owner of the real estate and improvements, etc. On October 16, 1872, the commissioners filed their report, appraising the property at $9858. This appraisement was approved, and on March 15, 1873, the court.made an order in the terms of the act, reciting that the owners -had neglected to demand of the Secretary of the Interior the appraised cash values of said lots for fifteen days after the appraisement thereof by the court, and directing that leave be granted to deposit the appraised values, in court to the credit of the owners, subject to be drawn therefrom only upon the order of the court for payment to the parties entitled, and-that upon the deposit of the money and notice to the clerk, possession of the property might be taken by the United States. In pursuance of this order the Nmoney was-deposited, and the United States took possession of the lot, which is now embraced within the ornamental grounds of the Capitol. Three days thereafter the entire appraised value of the lot, viz., $9858, was paid to the heirs of Martin King, who had become vested, through several intermediate conveyances, with the title acquired at the confiscation sale.

In the first case that arose under this act, Bigelow v. Forrest, 9 Wall. 339 , Mr. Justice Strong suggested anomalies presented by the forfeiture of lands of which the offender was seized in fee, during ids- life and no longer, without any corruption of his heritable blood, and declined to inquire how, in such a case, descent could be cast upon his heir notwithstanding he had no seisin at the time of his death. In Day v. Micou, 18 Wall. 156 , it was held that it was not the property itself of the offender which was made the subject of the seizure, even during his life, but it was his interest in the property, whatever that interest might be, and if he had, previously to his offence, mortgaged the land to a bona fide mortgagee, the mortgage was not divested, and the sale under the confiscation act passed the life estate subject-to the charge.

The subject was considered at length in the case of Wallach v. Van Riswick, 92 U. S. 202 , which was a bill for the redemption of a deed of, trust of propei’ty..in Washington subsequently confiscated, given by Wallach,- a public enemy, to secure the payment of a promissory note. ' Wallach’s interest in the'property was, therefore, an equity of redemption, which the purchaser at the confiscation sale acquired' and held with

In Pike v. Wassell, 94 U. S. 711 , the question arose whether the heirs of the person whose estate had been confiscated could maintain an. action to require the "purchaser to keep down the taxes during the life of the offender. The defendants insisted that until the death of the offender the children had no interest in the property, and, therefore, could not appear to protect the inheritance. It was held to be true, as a general rule, that so long as the ancestor lives the heirs have’ no interest in his. estate.; but without undertaking to determine where the fee dwelt during the life estate, it'was held that the heirs had an estate in expectancy, and as there was no one else to look after the interests of tfie succession, they might properly be permitted to do whatever was necessary" to. protect it. from forfeiture or incumbrance. The base was held a proper one for a court of equity to interfere and grant

The question what became of the fee was also discussed in Illinois Central Railroad v. Bosworth 133 U. S. 92 , 102, 103, and it was intimated,-as a logical consequence from the decision in Shields v. Schiff, 124 U. S. 351 , that the heirs took as heirs, and not by donation from the government; “ that after the confiscation of the property, the naked fee, . . . subject, for the lifetime of the offender, to .the interest or usufruct of the purchaser at the confiscation sale, remained in the offender himself; otherwise,” said Mr. Justice Bradley, “ how could his heirs take it from him by inheritance % But, by reason of his disability to dispose of, or touch it, or affect it in any manner whatsoever, it remained, as before stated, a mere dead estate, or in a condition of suspended animation. We think that this is, on the whole, the most reasonable view. There is no corruption of blood; the offender can- transmit by descent; his heirs take from him by descent; why, then, is it not' most rational to conclude that the 'dormant and suspended fee has continued in him ? ” It was further held in that case that if the disability of the offender be removed by a pardon or armistice, it restored him to the control of his property, so far as the same had never been forfeited or never become vested in another person.

In Jenkins v. Collard, 145 U. S. 546 , 560, the estate of a public enemy was confiscated and sold. Subsequently to the sale ho returned to Cincinnati, gave a deed in fee simple with covenants.of general Warranty, and it was held that he 'and all persons claiming under him were thereby estopped from asserting the title to premises, as against the grantee, or 'írom conveying it to any other parties. It was further held that no disposition was ever made by the government -of the reversion of the estate of the offending party; that it must, therefore, be construed to have remained in him, but without.

Upon the whole, we think the doctrine was too broadly stated in Wallach v. Van Riswick, that the effect of the confiscation was to divest the owner of every vestige of proprietary right over the property, and that the sounder view is that intimated in Illinois Central Railroad v. Bosworth, and Jenkins v. Collard, that the estate forfeited is the life estate of the offender, and that the fee remains in him, but without .the power of alienating it during his life, unless the disability be removed. The theory of the common law, that the fee can never be in abeyance, but must reside somewhere, though seemingly somewhat fanciful, is founded upon a consideration ©f good sense, that there shall always be some one in existence to represent it in actions brought for its recovery, and to project the interest of the heirs. In treating.of this subject, Mr. Fearne, in his work on Contingent Remainders, vol. 2, sec. 60, book I. c. 3, § 1, observes, “that if a person limits a freehold interest in the land, by way of use or devise, vvhich he may-do, though he could not do so at the common law, to commence .vnfutwro, without making any disposition of the intermediate legal seisin, . . . the legal seisin, property or ownership, except such part thereof, if any, as is comprised within "a prior disposition of a vested interest, of course remains in the grantor and his heirs, or the heirs at law of the testator, until the arrival of the period, when according to the terms of the future limitation, it is appointed to reside in the person to whom such interest in futuro is limited.” That, the fee is not forfeited by the confiscation is also the logical deduction from the ruling in Shields v. Schiff, 124 U. S. 351 , that the heirs

A necessary inference from the position assumed by the claimants, that neither Dunnington nor his heirs retained any interest in the forfeited estate, nor any right to intervene in these proceedings, is, that the government can obtain no title by condemnation to confiscated property during the life of the offender; that it can only condemn his life estate in the hands of the purchaser; and that, upon the termination of such estate, the heirs can recover the property, or at least compel the government to institute new proceedings for its condemnation. Such a construction would be intolerable. The march of public improvement cannot thus be stayed by uncertainties, complications or disputes regarding the title to property sought to be condemned; and the language of section 8 of the act of May 8, 1872, requiring the appraisement to be made of the several interests of each and every owner of the real estate, evidently contemplated an investiture of the entire title and of the interest of every owner, present and prospective, in the United States. Ve are, therefore, of opinion that the con: demnation in this case operated upon the fee as well as upon the life estate, and as the presumption is, that due and legal notice was given of the proceedings, the appraisement was valid and binding upon Dunnington and his heirs. Assuming that, after the confiscation proceedings, he held only the naked fee without the power of alienation, the amnesty and pardon proclamation of the President of December 25, 1868, before the proceedings to condemn, removed his disability in this particular, and restored to him the right to make such use of' the remainder as he saw fit.

2. A further question remains to be considered with regard to the proceedings taken after the payment of the money into court. It is insisted by the claimants that it was the duty of the United States, as plaintiffs in the condemnation proceedings, to take proper steps for the payment of the sum fixed by

It is evident that the gist of the petitioners’ complaint in ijhis connection lies in the order of the Supreme Court of the, District of Columbia of- April 3, 1873, directing the payment of the entire appraised value of the lot to the heirs of Martin King, the vendee of Shepherd, who had purchased the life .estate of Dunnington under the confiscation proceedings. Neither Dunnington, who was still living, nor his heirs, the present claimants, appear to have intervened in the condemnation proceedings, or to have raised a question as to the. propriety of this payment. The proceedings, however, appear to have been carried on in strict conformity with the act, which required the Secretary of the Interior, in case he should be unable to purchase at private sale, to apply to the court for an appraisement, and in case the owner neglected to demand of him the appraised value within fifteen days, to pay the same into' court, subject to being paid out to the persons entitled to it. Assuming that the payment of the entire amount to the heirs of King was a mistake, it is difficult to see how the United States can be held responsible for it. The courts of the-United States , are in no sense agencies of the Federal government, nor is the latter-liable for their errors or mistakes; they are independent tribunals, created and sup

We do not wish to be understood as holding that there was necessarily -an error in paying the money to the heirs of King. That question is' not^ before us for consideration, and Ave are not called upon to express an opinion with regard to it.

The case is doubtless a hardship for the claimants, but it would be a still greater hardship if the government, without

The judgment of the court below must be,

Reversed, and the case rema/nded, with directions to dismiss the fetiUon. -