Heirs of Ledoux v. Lavedan

52 La. Ann. 311

• Court: Supreme Court of Louisiana
• Decided: January 15, 1900
• Docket: No. 12,987
• Status: Published

Opinions

In original opinion Mu. Justice Rlaxchard concurs in the decree; Nicholls, G. J., recuses himself, having been of counsel in the original litigation; Moxroe, J., takes no part, not having been a member of the court when the case was submitted.

On the rehearing ithe opinion of the court was delivered by ifONROE, J.

(Breaux, J., and BlaNCiiard, J., concurring in the decree on the ground of the prescription pleaded; Nioholls, O. J., recused).

The opinion of the court was delivered by

WatiíiNS, J.

In the case of same title, No. 12,383, 49th Anji., 913, the issues which we are to decide in the instant case, are very fully stated, and reference is made thereto for particulars.

From that case we find, that the plaintiffs are the heirs of a creditor of the succession of the late Henry M. Hyams, whose claim was evb deneed by a judgment rendered in 1866, and since that time kept alive in the mode prescribed by law; and their action is for a decree against the defendant, declaring that the property described in the petition is that of said succession — deceased having died insolvent— and should be brought into the succession for sale, in order that its proceeds when sold should be applied to the payment of creditors mentioned in the account of the administrator..

Petitioners allege that the life interest of H. M. Hyams in said property had been confiscated by the United States Government and sold; and that, subsequently, Hyams was pardoned by the amnesty proclamation of the President of the United States, and restored to his rights.

That he and his wife died in 1875, and that an administrator for their successions was appointed in 1877, who filed a provisional account of administration.

Ameron Ledoux did not oppose the account; but an opposition to Said account was filed by Mrs. Camille Lewis, the transferrer of the claim of George W. Lewis, intervenor, wherein it was alleged that said property appeared to have been sold by IT. M. Hyams to his son. Isaac S. Hyams, title to which was simulated.

It is further charged therein that there are other properties which I. S. Hyams ostensibly purchased for himself, but which, really, belonged to the succession oí H. 11. ilyams; (1) because they were made in the vendee’s name, for the use and benefit of II. M. Ilyams, who furnished the funds; (2) that the vendors in those sales to I. S. ITyams had themselves only purchased the life interest or usufruct of the property at the confiscation sales made by the United 'States Marshall, and only sold to I. S. ITyams, the right which they had purchased — that is to say, the life interest therein; (3) and that although IT. M. Ilyams intervened in those acts of sale and made himself party thereto, he could not, thereby, ratify or confirm them to I. S. ITyams, so as to convey to the latter an absolute and enduring ownership in the property; (4) that by the death of IT. M. ITyams, the life interest or usufruct in the property became extinguished and the ownership reverted to his succession, subject to the rights of his creditors.

From the foregoing statement it appears, that the claims of the plaintiffs as the heirs of a creditor of IT. M. ITyams, are founded exclusively, upon the theory that the title of all the properties which are described in the petition, vested in the succession of IT. M. Hyams at 'his death in 1875, for the reason that only his life estate therein was confiscated by the government, and, as a consequence of that theory IT. M. Ilyams did not convey, and had not the capacity to convey any valid title to his son Isaac S. Ilyams, as related in the deeds of sale.

From the foregoing statement, it further appears, that the opponent, Lewis, makes two distinct charges against the titles of I. S. ITyams, and divides the property into two classes, to:wit:

(1) Those which appear to have been made by IT. M. ITyams to his son Isaac S. ITyams — his son and administrator — (2) those which I. S. ITyams purchased from those persons who had purchased said properties, or rather, the life estate of IT. M. ITyams, at confiscation sale by the government.

It further appears that the opponent seeks to have brought into the succession the property of the first class, because (1) the title thereto is simulated as well as confiscated; and (2) because I. S. ITyams purchased that of the second class from those who bought at the confiscation sale.

In the lower court the defendant filed a plea of res judicata, and that plea was sustained, and the plaintiffs and intervenors prosecuted to this court an appeal from the judgment of dismissal.

In this court that decree was altered in the particulars above enumerated, and remanded.

It appears from our opinion that the judgment on which the plea of res judicata, rests was rendered by the judge of the Second District Court for the Parish of Orleans, the substance of which is as follows:

That by the confiscation sale, the interest of H. M. Hyams was divested, but it did not vest a fee simple title in the purchaser of the property, and that the purchasers at such sale could not convey a title transferring- the property in full ownership; but, that at the death of IT. M. Hyams, his children took said properties which were once his, by virtue of the statute and the Federal Constitution, and that, consequently, they could not be brought into his succession, having descended to the heirs.

We find from our opinion that whilst sustaining the plea of res judicata, with respect to the intervenor, we held, that it could only apply to the title of property of the second class and not as to the first, with respect to which all issues were left open for determination — our opinion stating that “the issue, as we appreciate the judgment from which this appeal was taken, was res judicata vel non as to second class.”

Further reference to our opinion shows that we held, that plaintiffs as creditors of the succession were not estopped by the proceeding in the Second District Court between another creditor and the administrator, notwithstanding both “were parties to the provisional account which had been homologated so far as not opposed.”

The opinion further states on this subject that “we think it would be going- out of fixed limits to hold, that the administrator represented the heirs and creditors in an action tó compel him to deliver property to which he claims title — the administrator in such an action, which involved his personal interest, representing himself only.”

The theory of our opinion was, that in such a suit, the succession had no legal defender; that he could not be both plaintiff and defendant — citing Harris vs. Pickett, 37 Ann., 740, and Thomas vs. Bienvenue, 35 Ann., 937.

Summarizing the foregoing statements of fact and recitals from our opinion, the situation of tjio litigation at present seems to be, (1) that the issue to be decided as between plaintiff and defendant is, the validity vel non of defendant’s title from II. M. Ilyams traced through the confiscation proceedings against II. M. Hyams; and (2) that between the intefvenor and defendant is the simulation vel non of the titles from II. M. Ilyams to I. S. Hyams, as well as to the confiscation of the title of H. M. Hyams — that is to say, those enumerated in the first class mentioned in his opposition.

But, a reference to the .record discloses that the plaintiff filed an amended and supplemental petition on the 12th of January, 1898, since' the remanding of the case, in which the following substantial averments occur, to-wit:

That “after the confiscation of the life estate in and to the property herein claimed, as set forth in the original petition, the deceased II. M. Ilyams caused a simulated sale to bo made of said property to I. S. Hyams, also deceased.

“That said simulation was declared by a judgment of this Honorable Court rendered on the 21st of February, 1818, in the cause entitled 'Succession of II. M. Ilyams,’ No. 339 of this Honorable Court, as will more fully appear by reference to a copy of said judgment, and the reasons thereto attached, herewith filed.

“That said property was ordered to be restored to said succession, but said judgment has never been carried into effect.”

Referring to plaintiffs’ original petition in record' No. 12,383, we find the plaintiffs claim stated to be, as follows, to-wit:

“That said estate owns the following property situated in this city, to-wit:

“A tract of land containing 22 19-100 acres, in the rear of Suburb Plaisance and St. Joseph, being the upper one-third of section 8, township ,13 south, of Range 11 East; the entire section containing 105 98-100 acres, according to survey made by G. A. Grandjean, United States Surveyor in 1888, approved by Calhoun Fluker, then Register of the United States Land Office.

“That said II. M. Ilyams, ’deceased, acquired one-half of said property íjrom .Thosv- R. Winston, on the llth day of June, 1855; * 'x- * one-sixth on the 28th of April, 1859, from George May’; * -x- -x- one-sixth on the 15th of February, 1862, from C. O. Beard; •x- * -x finally, Isaac S. Hyams acquired, for account of estate of H. M. Ilyams, one-sixth of C. C. Beard.”

All these sales were evidenced by notarial acts.

“That said property is now in the possession of Leon Lavedan, * * wlio claims to be the owner thereof. That he holds and possesses said property by no legal or valid title from the estate of PI. M. Ilyams, or any valid transfer thereof.”

Petitioners aver “that the lifetime interest in said property of II. M. Hyains was confiscated by the United States Government and sold.

“That thereafter, on the 25th of December, 1866, the said Plyams was pardoned by the general Amnesty Proclamation issued by the president, which restored him to all of his rights, except the life interest in said property.

“That after his death, the said property belonged to his estate, and no legal or valid alienation thereof could have been made, except by the order of this court to pay the debts due to the petitioners and other creditors.”

They aver that the present administrator of the succession has been called upon to bring this suit, but has neglected to do so.

That she and her co-heirs have taken possession of his estate, and, especially, of the above described property; and, they aver and are informed, that said heirs are the warrantors of the defendant, and that the estate of IT. IT. ITyams is insolvent, and said heirs have no interest therein.

That, it is necessary to cause the title standing in the name of Lavedan to be annulled, aiid the possession thereof restored to said succession, to be therein inventoried and sold to pay the debts of your petitioners in due course of administration.

It appears from the prayer of said original petition that Leon Lavedan and Miss Laura R. ITyams, administratrix of the estate of II. M. ITyams, were.the only parties cited, and that the property described was the only property claimed therein.

The contention of intervenor as stated in his opposition (after making a similar statement to that contained in the petition of plaintiff) is as follows:

That the remaining estate vested unconditionally in said ITyams. and that upon that date the full ownership vested in his succession, and subject to the charge upon it; and that by the administration of his estate “the beneficiary heirs ceased to be proprietors and possessors of any property depending in his succession, or left by him at his decease, and any alienation of any part thereof * * * became, thenceforth, impossible, except under order and supervision of this court.”

That said defendant, Lavedan, is a possessor, if at all, which is. denied, in bad faith, and that he and all his antecedent vendors are. and were fully aware of the defects of the title which they alleged as. a basis of ownership.

Opponents unite with the plaintiff in praying- “that the pretended sale by Wm. A. Dickson to Leon Lavedan, defendant herein, of .date 24th of October, 1893, * * * of the upper third of section 8, township 13, range 11 east, lying in the Sixth Municipal District,, containing- 22 19-100 acres, be declared null and void, and that same be restored, as has been heretofore ordered by judgment of February-21, 1878, rendered by the late Second District Oourt, to the succession of Ii, M. Hyams, Sr,, and sola in due course of administration.”

The opponent íorays for citation to Lavedan and Miss Laura Hyams, administratrix.

As. a peremptory exception,. Lavedan plead the prescription of three months and ten-years; also, the plea of res judicata founded on a judgment of the Second District Court on the 21st day of February, 1878, in the succession of H. M. Hyams, homologating the account of the administrator, and dismissing the opposition of the. creditors.

In the present suit, 12,987, Lavedan appears, and makes the following answer, reserving all his rights' under his peremptory excei>tion- — his plea of res judic-ata having been disposed of by our xorevious opinion has passed out of the case.

That he is in the actual and physical possession of a part of the property sued for, to-wit:

The upper undivided one-third of section 8, township 13 south, range 11 east, in the southwestern land district of Louisiana,' containing 22 19-100 acres,

That he acquired said property in good faith from W. A. Dickson for six thousand dollars cash, by notarial act dated October 24, 1893, and duly recorded in the conveyance office.

That W. A. Dickson acquired said property by purchase from Fergus Hernán by act under private signature, dated July 26, 1893, and duly recorded in the conveyance office.

That Hernán acquired one undivided half in said property by pur■■chase from, the succession of Ií. M. Hyams, Jr., by notarial act dated April 9, 1891, duly recorded in the conveyance office.

That he acquired the other undivided half of said property by purchase from Francis R. Wall by notarial act dated February 18th, .1891, and duly recorded in the conveyance office.

That Francis R* Wall and ITenry M. Hyams, Jr., acquired the whole of the above mentioned property, at public auction sale in the ■city of New Orleans, on July 19,1884, by virtue of a judgment of the 'Civil District Court, rendered on June 10, and filed on June 18, 1884, ordering a sale of said property to effect a partition thereof by licitation, between the co-heirs of the same in the suit entitled Henry M. Hyams et als. vs. Lelia L. Hyams, tutrix, evidenced by notarial acts dated February 13, 1885, and duly recorded in the conveyance office.

That said public sale to said Henry M. Hyams, Jr., and Francis R. Wall was made under a valid judgment, after proper citation to all parties in interest, and vested in them a good and valid title to Said property; that by said sale, said property passed to Wall and Hyams free and clear of all liens, privileges or mortgages inscribed against the same and against “their author, the late Henry M. Hyams, S;\, as appears from the mortgage certificate annexed to the act of sales.”

That he (Lavedan) and his authors having been in quiet peaceable and physical possession of said property for over ten years, and having so held same in good faith for that length of time, he now pleads against, and in bar of plaintiff’s recovery, the prescription of three months, and of five and ten years.

Wherefore, defendants prays that plaintiff’s demands be rejected.

To the intervention, Leon Lavedan’s answer is, substantially, the same as that to the original petition; and that of Laura Hyams, ad-ministratrix, is, substantially, the same as that of Lavedan.

A careful consideration of the foregoing analysis of the pleadings and issues which are at present open to discussion and presented for decision, disclose the fact to be, that there is but one piece of unimproved real estate involved in this litigation, and that is the upper undivided one-third of section eight (8) township thirteen (13) smith, of range eleven (11) east — consisting of twenty-two and 19-100 acres.

The record discloses — and the fact is one judicially admitted in thé pleadings, as well as having been made the subject of an admission by counsel — that same was, amongst other properties, confiscated by the United States Government and sold, during' the lifetime of II. II. Hyams; and that, treating the confiscation sale as having had the efxect of conveying a life interest or estate therein only, to the purchaser, II. M. Hyams subsequently made a title thereto to his son, Isaac S. Hyams.

These facts, necessarily result in placing this property in the first class — as above outlined — and bringing it within the range and scope of both the plaintiff’s and opponent’s demands; that is to say for the annulment of the title of Lavedan, on the ground that (1) the title from H. M. Hyams to Isaac S. Hyams was purely fictitious and simulated, and did not convey the ownership of the property; (2) that the confiscation sale having transferred only the life interest of II. M. Ilyams, the property in full and complete ownership was, at his death, transmitted to his succession for administration, according to law; (3) that the heirs of II. II. Hyams having taken possession of said property, amongst others, and partitioned it between themselves, and same having been omitted from the inventory of their ancestor’s estate, they, as creditors thereof, have a right and interest in having the title of defendant, which is derived from and through said partition, decreed null, and the property restored to the succession to which it belonged.

Considered from the standpoint of the plaintiffs and intervenor, as an original proposition, we are to determine the effect of the confiscation proceedings and sale in respect to the rights and interests of the heirs of II. If. Hyams, the adjudicatees, and that alone; because (1) the sale from II. M. Hyams to his son Isaac S. Hyams if simulated, convoyed no title to him, but left the ownership in siaiu quo; and (2) the defendant, Lavedan, traces his title back to the partition amongst the heirs of II. If. Hyams, and no further' — and does not set up any title as derived from Isaac S. Hyams.

But, in the record we find an act of renunciation by Isaac S. Hyams of his interest in the property in controversy amongst others, in favor of the heirs of H. M. Hyams, which contains the following recital, viz:

“Said property having been confiscated 'and sold by the United States Government as that of Henry If. Hyams (it) reverted by the latter’s (death) exclusively to his heirs, to-wit: Isaac S. Hyams, the undersigned; Henry M. Ilyams, Jr., Richard K. Hyams; Ingram R. Hyams; Clarence D. Sprigg, and the children of the deceased Kosciusko R. Hyams, viz: Emma, Bertha and Daisy — and in whose favor therefore its present holder, the undersigned, hereby renounces every claim of title to its ownership.”

That relinquishment was signed by Isaac S. Hyams on the 29th of August, 18'T'T, authenticated on the 30th of August, 18'fT, before a notary, and dulj registered in the conveyance office on the same date.

It further appears that on the 4th of May, 1866, Henry M. Hyams conveyed by notarial act to his son, Isaac S. Hyams the property in controversy, amongst many other properties therein described, for the expressed consideration of $16,400 for which the purchaser executed twenty-seven promissory notes, made payable to the order of the Citizens Bank, at different dates in the future, and secured by mortgage and vendor’s lien on the property sold.

In that act, the following stipulation was made, viz:

“He does by these presents, grant, bargain, sell, convey, transfer, “ assign, and set over, with all legal warranties, and with substitu- “ tion and subrogation to all his rights and actions of warranty, unto “Isaac Smith Hyams, here present, accepting- and purchasing, etc.”

That act of sale was duly registered in the book of conveyances.

Henry M. Hyams died in ’1815 — nine years subsequent to said sale — and it was two years after his death that Isaac S. Hyams made said relinquishment to the heirs — himself amongst the number.

In our opinion, that' transaction can not be viewed or fairly interpreted as a simulation; on the contrary, it possesses all the indicia of a real and serious sale for a valid and adequate consideration, on its face, when it is taken by itself. But, in the light of the renunciation, it would seem, that the act should be treated and considered as having been intended to convey a title to the heirs, originally, and that for convenience, the name of Isaac S. Hyams, alone, was employed.

But, conceding the sale to have been without consideration, and the situation of the property is not different; for, putting it out of the way, the rights of the heirs are just the same — the effect of the confiscation proceedings and sale having ceased a;t their ancestor’s death.

It was doubtless with a view to the renunciation of Isaac S. ITyams, that the partition proceedings were undertaken by the heirs of II. M. Hyams, in 1884; and they may have been, to some extent, justified in so doing, by reason of the fact that his succession had at that time been under administration for nine years, without any mention having been made of the aforesaid properties in the inventory of his estate — the act of sale to Isaac S. Hyams having been of record for a period of nine years prior to the death of II. M. Hyams, and during that period of time the assignor of the intervenor had a judgment against IT. M. Hyams, as securing the claim now sought to be enforced.

Necessarily, the jurisprudence established by the Supreme Court with regard to the construction to be placed upon, confiscation sales, and the legal effect to be given thereto in respect to heirs of the deceased confiscatee, is controlling, and that of this court must yield in case there is any doubt as to what is a proper interpretation to be placed thereon.

In Beard vs. Lufriu, 46th Ann., 875, this court had occasion to examine and review a question closely assimilated to the one under consideration.

That was a petitory action instituted by the plaintiff as the owner of property, which is described in the conveyance from II. M. Ilyams to Isaac S. Hyams of date-May 4, 1866, to which reference is herein made supra — the only difference being that no mention is made in that case of the relinquisment by Isaac S. Hyams. Plaintiff’s chain of title was by reconveyance from Arrowsmith to II. M. Ilyams in 1864; by the confiscation proceedings and sale against Ilyams in 1865, and adjudication to Jotham Potter; by conveyance from Potter to II. M. Hyams in February, 1866; and by reconveyance from Isaac S. Ilyams to the plaintiff in 1870.

The defendants derived title through the judicial partition amongst the heirs of II. M. Ilyams, in June, 1875 (above referred to) and from Ingram E. Ilyams, February, 1866.

Therefore, it appears that the plaintiff claimed through the act of sale of 1866, from H. M. Ilyams to Isaac 'S. Ilyams, while the defendant claimed through the partition proceedings of 1885. The only difference there seems to be between that case and the instant one is, in the renunciation of I. S. Ilyams to the heirs of II. M. Hyams; but same was not executed until 1877; seven years subsequent to the purchase of Beard from Isaac S. Hyams.

But, the court considered, and the parties treated the act of 1866 as binding and valid. There was in that case no question of simulation — the only question being whether the recitals in that act had the effect of excluding- the title of the heirs in the property.

In the opinion we say:

“The question for decision is, whether the plaintiff’s title from Isaac 8. Hyams is better than the title derived from Ingram B. Hyams — both titles being- derived from H. M. Hyams as a common author; and Isaac S., and Ingram R. Hyams being- heirs of H. M. Hyams.”

In the defendant’s answer it is alleged that Isaac S. Hyams never had any title to transfer to the plaintiff; and that, in consequence of the confiscation proceedings against II. M. Hyams, and the adjudication therunder, there was not left to said II. M. Hyams any interest of any kind which he could convey as he did, but that the ownership of said imoperty reverted to the heirs of H. II. Hyams at his death. The defendant’s counsel cites and relies on the following decisions of the Supreme Court as sustaining his view, to-wit:

“Wallach vs. Van Riswich, 92 U. S., 302.

“Chaffraix vs. Shiff, 92 U. S., 214.

“Pike vs. Wassell, 94 U. S., 711.

“French vs. Wade, 102 U. S., 132; Avegno vs. Schmidt, 113 U. S., 292.”

Some of these authorities have been cited by counsel in the instant case, without, however, making any reference to the decision of this court in Beard vs. Lufriu. On this subject our opinion says:

“That such was the theory entertained by counsel who had charge of and conducted the proceedings in the partition of the II. M. Hyams property, there can be no doubt, as it appears from the face of the proceedings themselves.”

But, we took occasion to state that in Jenkins vs. Collard, 145 U. S., 547, a somewhat different view had been entertained.

In speaking- of that case we said that it “was an action of eject-mem, brought by the heirs of Jenkins, the confiscatee, for the recovery of the property which had been confiscated, and the life estate in which had been sold, and of which (property) the defendant, Oollard, became the possessor during the lifetime of the confis-catee — plaintiffs alleging- they had become seized of the legal estate in the premises, by reason of the death of their father, and entitled to possession.”

That from the statement of fact given it appeared that in 1863 the property of Jenkins was confiscated and sold to one Bepler, who, afterward, conveyed to the defendant Oollard, to whom Jenkins, the confiscatee, subsequently made a formal deed of conveyance in August, 1865.

“On this state of facts/’ we said: “The Circuit Court held, that only the technical life estate of Jenkins was confiscated by the decree of the court in 1863, 'but there was left in him the reversion or remainder which he sold and conveyed to the defendant, by deed of August 26, 1865, and that consequently, the plaintiffs had no interest in the property.’ ' ,,

“The Supreme Court, in passing upon this question, examined and carefully reviewed all of their previous utterances in reference thereto, and announced their adherence to the doctrine, that a confiscation sale only disposed of the life estate of the confiscatee, but, at the same time held that Jenkins’ deed to Oollard, of August 26, 1865, operated as an estoppel against him, and all persons under him, from claiming title to the property sold as against the grantee and his heirs and assigns, or against his conveying it to other parties.

“The court gave effect to the conveyance, made by the confiscatee, subsequent to the confiscation sale, and several years antecedent to the president’s amnesty proclamation, on the authority of Van Renssalaer vs. Kearney, 11 Howard, 297, and Irvine vs. Irvine, 9 Wallace, 617.”

Our examination of Jenkins vs. Collard led us to the conclusion that it was precisely applicable to the case then at bar, Beard vs. Lufriu, because, “the purchaser at the confiscation sale had executed a reconveyance to the confiscatee, H. M. Hyams, soon after the adjudication, and II. M. Hyams had executed a conveyance to his son Isaac S. ITyams, on the*4th of May, 1866, prior to the amnesty proclamation.”

The following extract from Jenkins vs. Collard will serve to show the view entertained by the Supreme Court, of the effect of the confiscation sale, under the circumstances related, to-wit:

“Of the reversion or remainder of the estate of the offending party no' disposition was ever made by the government. It must, therefore, be construed to have remained in him, but, under the ruling in Wallach vs. Van Riswick, without any power in him to alienate it during his life. That disability was enforced, when he (Jenkins) executed, with his wife, the deed of the premises August 26, 1865. The proclamation of pardon and amnesty was not made by the president, until December 25, 1868. This deed, however, was accompanied with a covenant of seizin on his part, and that he would warrant and defend the -title against the lawful claims of all persons whomsoever.

“Admitting that he had no present estate in the premises, and none in expectancy, he was at liberty to add to his deed the ordinary covenants of seizin and warranty, and the same legal operation upon future acquired interests must be given to them, as when accompanying conveyances of parties whose property has never been subject to confiscation proceedings.

“That warranty estopped him and all persons claiming under him from asserting title to the premises against the grantee and his heirs and assigns, or conveying to any other parties.

“When, subsequently, the general amnesty and pardon proclamation was issued, the disability, if any, that had previously rested upon him against disposing of the remaining estate which had not been confiscated, was removed, and he stood, with reference to that estate, precisely as though no confiscation proceedings had ever been had.

“The amnesty and pardon in removing the disability, if any, resting upon him respecting that estate, enlarged his estate, the benefit of which enured equally to his grantee.

“The removal of his disabilities did not affect the purchaser’s right under the decree of confiscation. The latter remained in full enjoyment of the property during the life of the offending party, but, he had no claim upon the future estate, nor did the heirs of the offending party have any such claim upon it as to preclude the operation of any previous warranties by him respecting it.”

From the .foregoing-, it appears quite clear that the plaintiff was held to be- protected by the covenant of warranty which is contained in the act of sale from H. M. Hyams to Isaac S. Hyams, of May 4, 1866 — the one to which we have referred, and from which we have quoted the warranty clause.

If the present'record in the instant case disclosed no further fact, the decision of this court would, necessarily, be the same. But, the renunciation of Isaac S. Hyams in favor of the heirs, puts a different phase upon the rights of the heirs and operates a release in their favor of the bar of said warranty stipulations.

It bad the effect of leaving them free to assert their claims to the propei ty which had been confiscated.

This is illustrated by the following extract from our opinion in Beard vs. Lufriu, to-wit:

“The subsequent general amnesty which relieved the eonfiscatee of the disability that rested upon him, placed him in exactly the same position he would have occupied with reference to the, property, had no confiscation proceedings been had; but, the benefit of the relief enured equally to his vendee and to those holding under him.

“So that, at the death of II. if. Ilyams, his warranty title to I. S. Ilyams operated against his heirs and their assigns, and defeats-veeovery by either.”

As we have shown from the record, this condition of affairs continued to exist, until after the death of II. M. Ilyams in 1815; and it was only changed by the renunciation which Isaac S. Iiyams made in favor of the heirs, himself amongst the number, in August, 1877— two years subsequent to the death of H. M. Hyams.

This situation of the title continued to exist without change, until .1884-; when the partition amongst the heirs was made, under which the defendant, Lavedan, obtained title, for what seems to have been a fair consideration, to-wit: six thousand dollars.

We think it well to cite a few of the decisions of the Supreme Court, in relation to the rights of the heirs to confiscated property, resulting from the pardon or death of the eonfiscatee.

In Wallach vs. Van Riswick, 92nd U. S., 202, the Supreme Court considered the purport and effect of the joint resolution of Congress, which declared that, “no proceeding- shall work a forfeiture, beyond the life of the offender,” and said that it did not mean “beyond the life estate of the offender.”

“The obvious moaning is, .that the proceedings for confiscation and sale shall not affect the ownership of the property, after the termination of the offender’s natural life. After his death, the lands shall pass and bo owned as if it had not been forfeited. * * *

“The words of the resolution are not exactly those of the constitutional ordinance; hut, both have the same moaning, and both seek to limit the extent of the forfeiture. In adopting the resolutions, Congress manifestly had the constitutional ordinance in view; and, there is no reason why one should receive a construction different from that given to the other. What was intended by the constitutional provision is free from doubt. In England attainders of treason worked corruption of blood, and perpetual forfeiture of the estate of the person attained, to the inheritance of his heirs, or of those who would, otherwise, be their heirs. Thus, innocent children were made to suffer, because of the offence of their ancestor. When the Federal Constitution was framed, this was felt to be great hardship, and even rank injustice.

' “For this reason, it was ordained, that no attainder of treason should work corruption of blood or forfeiture, except during the life of the person attainted.

“No one ever doubted that it was- a provision introduced for the benefit of the children and heirs alone; a declaration that the children should not bear the iniquity of the fathers. Its purpose has never been thought to be a benefit to the traitor, by leaving in him a vested interest in the subject of forfeiture.”

In Pike vs. Wassell, 94 U. S., 711, the Supreme Court said:

“In Wallach vs. Van Riswick, 92nd U. S., 207, 208, we decided that after a seizure and an adjudicated condemnation and sale, under the confiscation act of July 17th, 1862, of the lands of one engaged in rebellion against the United States, there was ‘left in him no estate or interest of any description which he could convey by deed, and no power which he could exercise in favor of another.’

“We also held that the joint resolution passed contemporaneously with the approval of the act, was intended for the benefit of his heirs exclusiveh/j to enable them to take the inheritance after his death.”

Again:

“It is true, as a general rule, that so long as the ancestor lives, the heirs have no interest in his estate; but the question here is, as to the rights which the confiscation act has conferred upon the heirs apparent or presumptive of one whose estate in lands has been condemned and sold. In Wallach vs. Yan Riswick, without undertaking to determine where the fee dwelt during the life estate, we decided that it was withheld from confiscation exclusively for the benefit of the heirs.

“They, and they alone, could take it at the termination of the life estate.”

But, in our opinion, the best considered and most forcible statement of the question is found in Illinois Central Railroad Company vs. Bosworth, 133 U. S., 92, in which Mr. Justice Bradley, speaking for the court, said:

“The principal question raised in the present case is, whether by the effect of the pardon and amnesty granted to A. W- Bosworth by the special pardon of October, 1885, and the general proclamation of amnesty and pardon of December 25th, 1868, he was restored to the control and power of disposition over the fee simple or naked property in reversion expectant, upon the determination of the confiscated estate in the property in dispute.

“The question of the effect of pardon and amnesty on the destination of the remaining estate of the offender, still outstanding after a confiscation of the property during his natural life, has never been settled by this court.

“That’’the guilty party had no control over it in the absence of such pardon or amnesty, has been frequently decided.

“Wallach vs. Van Riswick, 92 U. S., 202; Chaffraix vs. Shiff, 92 U. S., 214; Pike vs. Wassoll, 94 U. S., 711; French vs. Wade, 102 U. S., 132 and Aveguo vs. Schmidt, 113 U. S., 293; Shields vs. Schiff, 124 U. S., 351.

“But it has been regarded as a doubtful question, what became of the. fee or ultimate estate, after the confiscation for life.

“'We are not called upon,’ said Justice Strong in Wallaeh vs. Van Eiswick, 'to determine where the fee dwells during the continuance of the interest of a purchaser at a'confiscation sale, whether in the United States, or in the purchaser, subject to be defeated by the death of the offender.’

“It has also been suggested that the fee remained in the person whose estate was confiscated, but without any power in him to dispose of or control it.

“Perhaps, it is not of much consequence, which of these theories, if either of them, is the true one; the important point being that the remnant of the estate,'whatever its nature, and wherever it went, was never beneficially disposed of, but remained, (so to speak), in a state of suspended animation. Both the common and the civil laws furnish analogies of suspended ownership of estates which may help us to a proper conception of that now under consideration.

■x- * -x- * * * *

“But, as already intimated, it is not necessary to be over curious about the intermediate state in which the disembodied shade of naked ownership may have wandered during the period of its ambiguous existence. Tt is enough to know that it was neither annihilated, nor confiscated, nor appropriated to any third party. The owner, as a punishment for his offences, was disabled from exercising any acts of ov nei ship over it, and no power to exorcise such acts was given to any oilier person. At his death, if not before, the period of suspen-s b on comes to an end, and the estate revives and devolves to his heirs at law.''"

The court in treating of the effect of the forfeiture by confiscation after the pardon of the confiscatee, but during his lifetime, made this statement:

“The property in question” — that of Bosworth — “had never vested “ in any person when these acts of grace were performed. It had not “ even been forfeited. Nothing' but the life interest had been for- “ feited. Tfis power to enjoy or dispose of it was simply suspended by “ his disability as an offender against the government of the United “ States.

“This disability was a part of his punishment. It seems to be per- “ fectly clear, therefore, in the light of the authorities referred to, “ that when his guilt, and the punishment therefor were expunged by “ his pardon, this disability was removed; in being restored to all his “ rights, privileges and immunities, he was restored to the control of “ so much of his property and estate as had not become vested, either “ in the government or in any othea? person — especially that part or “ quality of his estate which had never been forfeited, namely, the “ naked residuary ownership of the property, subject to the usufruct “ of the purchaser under confiscation proceedings.

“This result, however, does not depend upon the hypothesis that fhe “ dead fee remained in Bosworth after the confiscation proceedings “took place; it is equally attained if we suppose that the fee was in “ nuhihus, or that it devolved to the government for the benefit of “ whom it might concern.

-x- -x * *■ * *

“Regarding the substance of things, and not their forms, the truth “ is simply this: a portion of the estate, limited in time, was for- “ feited; the residue expectant upon the expiration of that time, “remained untouched, undisposed of; out of the owner’s power and “ control, it is true, hut not subject to any other person’s power or “ control.

“It was somewhere, or, possibly, nowhere. But, if it had not an “ actual, if had a potential, existence, ready to devolve to the heirs of “ the owner upon his death, or to be revived by any other cause that “ should call it into renewed vitality or enjoyment.”

The .foregoing- decisions fully sustain the view, that the act of Congress which authorized the confiscation of the estates and properties of persons who were engaged in the war of the rebellion against rlie authority of the United States, was intended as a punishment of the offender, and a sale thereunder, divested all his power and control over them, and left the title thereto in a state of suspension, until the offender obtained pardon, when it revived and became reinvested in his heirs; and their right became absolute at his subsequent death.

The motive and object of the constitutional ordinance declaring that confiscation should not work the corruption of blood in the con-fiscateo, was evidently to save the rights of his heirs, while divesting absolutely and entirely all his beneficial interest in the property confiscated. It was the manifest purpose of Congress, as an incident of the war power of the government, to deprive him of all control over his property, and that amnesty, while the property remained in the possession of the purchaser at confiscation sale, should only invest the confiscatee with the more perfect means of transmitting title to his heirs at his death.

The right and power of the offender, subsequent to his pardon, being subordinated to the control and use of the purchaser at confiscation sale during his life, the property was, necessarily, beyond the reach or control of his creditors, during that period.

In Beard vs. Lufriu, 46th Ann., 815, the record discloses that Jotham Potter became adjudicatee at the confiscation sale of the property of II. M. Hyams, on the 18th of May, 1865; that he recon-veyed the property to Hyams on the 3rd of February, 1866, and that Hyams conveyed it to his son Isaac S. Hyams, on the 4th of May, 1866; that, thereupon, this court decided, that the transferee of Isaac S. Hyams had a better title than the one derived by the defendant Lufriu from the heirs of Hyams.

In Illinois Central Railroad Company vs. Bosworth, 133rd U. S., 92, the heirs of Bosworth brought an action against the railroad company to recover possession of a tract of land — their father having died on the 11th of October, 1885.

The record discloses, that the property had been confiscated and sold ill 1868 to one Burbank, and that Burbank reconveyed to Bos-wortli, eonfiscatee, in 1872, and confirmed a sale made by Bosworth in 1871 to the railroad company, subsequent to Bosworth’s pardon; and that on this state of facts the court held that the heirs could fiot recover.

The material difference between those two cases and the one now under investigation is, that in each of the former, the purchaser at confiscation sale executed a reconveyance to the eonfiscatee, after his pardon, the result of which was to place matters in statu quo, and to defeat the action of his heirs; while, in this case, the purchaser at confiscation sale never made any reconveyance, hut held possession of the property up to the date of Hyam’s death.

It is unquestionably true — and there are decisions which sustain the proposition — that creditors with mortgage or liens, retain their claim against the property, notwithstanding the confiscation; but that’ is supposed to have grown out of the fact that such mortgage or lien was a quasi alienation of the property antecedent to the date of confiscation.

Otherwise, the authorities are unbending to the effect, that as soon as the eonfiscatee receives his pardon, the title devolves upon his heirs, subject to the right of the purchaser, and becomes perfect at the time of his death.

The claim of neither the plaintiff nor the intervenor was secured by either lien or mortgage on the real estate of II. 3VX. Hyams, anterior to its confiscation.

That of Ameron Ledoux, plaintiff’s ancestor, was for a debt contracted, it is true, in 1861, but not liquidated by judgment until 1866, subsequent to the confiscation sale, and prior to the date of the pardon of the eonfiscatee; while that of Camille Lewis, transferrer of the intervenor, was not liquidated by judgment until the administrator’s account in the succession of- II. M. Hyams was homologated in 1877, several years subsequent to the termination of the state of suspension, in which the legal title of Hyams was held by the Confiscation Act of Congress; and long subsequent to that date that it had vested in the heirs by the effect of the amnesty proclamation, and subsequently confirmed by his death.

This theory is strengthened by giving effect to the sale from H. IT. Hyams to his son Isaac 8. Hyams, during the period of time that the property was subject to the use and control of the purchaser at confiscation sale, and the renunciation of I. S. Hyams afterward.

But, if this proposition be considered of doubtful application, it seems perfectly clear that the creditors of Hyams have acquiesced in the situation of affairs which we have described, through a long series of years, and remained silent when they could have spoken, and should have opposed the proceedings which led up to the partition and sale, whereunder the defendant obtained title to the property in controversy; and, in equity, they should be considered as estopped from asserting any adverse pretensions thereto at this time.

For, whatever right the administrator or creditors of the succession may have once had in respect to this property, the title of the defendant can not be at this time disturbed. His deed, and those of his predecessors, had been duly recorded for more than ten years, without any complaint having been urged against them, or any effort made to subject the property to administration for the benefit of the creditors. The records of the District Court clearly show, that the heirs asserted and exercised their rights as such publicly, openly and notoriously, and without any objection, during the administration of the succession of their ancestor, and at a time when the plaintiffs had a judgment for the amount of the debt now claimed, and the facts and circumstances of the case must have been fresh and well known to all the parties in interest. Heirs of McGehee vs. McGehee, 41st Ann., 657.

In Hammond vs. Hopkins, 143 U. S., 224, Chief Justice Fuller, in speaking for the court, said:

“No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith and reasonable diligence, but will discourage stale demands, for the peace of society, by refusing to interfere where there have been gross laches in prosecuting rights, or where long acquiescence in the assertion of adverse rights has occurred.”

In Willard vs. Wood, 164 U. S., 502, the court said:

“But the recognized doctrine of courts of equity to withhold relief from those who have delayed the assertion of their claims for an unreasonable length of time may be applied in the discretion of the court, even though the laches are not pleaded or the bill demurred to.”

In Penn Mutual Life Insurance Co. vs. Austin, 168 U. S., 685, Mr. Justice White speaking for the court, after citing numerous authorities, used this language:

“The reason upon which the rule is based is not alone the lapse of time during which the neglect to enforce the right has existed, but the changes of condition which may have arisen during the period in which there has been neglect. In other words, where a court of equity finds that the position of the parties has so changed, that equitable-relief can not be afforded without doing injustice, or that the intervening rights of third persons may be destroyed or'seriously impaired, it will not exert its equitable powers in order to save one from the consequence of his own neglect.”

In Galliher vs. Caldwell, 145 U. S., 368, the court used this language:

“The adjudicated eases proceed on the assumption that the party to whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of his delay the adverse party has good reason to believe that the alleged rights are worthless or have been abandoned; and that, because of the change in condition or relations during this period of delay, it would be an injustice to .the latter to permit him now to assert them.”

In Lafitte vs. Godchaux, 35th Ann., 1162, this court used this language:

“The genius of our law does not favor the claims of those who have long slept on their rights, and who, after years g£ inertia, conveying an assurance of acquiescence in a given state of things, suddenly wake up at the welcome vision of an unexpected advantage, and invoke the aid of courts for relief, under the effect of a newly discovered technical error in some ancient .transaction or settlement.”

After a careful investigation of this case, and, in the light of the decision of this court, and those of the Supreme Court, our conclusion is (1) that the legal title to the property of II. M. Hyams passed at his death to- his heirs, and from ihem to the defendant Lavedan; and (2) if that be a doubtful question, that the plaintiffs and intervenor .are equitably estopped from attacking the defendants’ title, because of their silence and apparent acquiescence in the action of the heirs in having taken possession of the property as owners so long ago, having judicially partitioned it among themselves, and sold it- to strangers and third persons for a valuable consideration — particularly in view of the decree of the Second District Court which was rendered contemporaneously with their taking- possession — affirming the validity and legality of th'eii" pretensions. Heirs of Ledoux vs. Lavedan, 49 Ann., 913.

While it is not correct to say, and as we held in our former opinion, that the plea of res adjudicata predicated upon the judgment of the Second District Court was not good with respect to either the plaintiffs or intervenor, yet, it does come to the aid of the. estoppel against, them; and it may be justly considered and treated as possessing the effect of the estoppel of res adjudicata — that decree having been rendered in a litigation over an administrator’s account to which they were both parties, and it having had the immediate effect of diverting: from the estate to the heirs, the very property they now seek to hold liable for their claims.

On reason and authority the title of the defendant which is; derived from the heirs of II, M. Ilyams, confiscatee, must be recognized and enforced.

This was the view entertained by our learned brother of the District Court, and we concur in his opinion.

Judgment affirmed.