The opinion of tlie Court was delivered by
PochÉj J.
Plaintiffs sue as the sole heirs of blood of the late Eustace Surget, for the recovery of immovable property which he once owned in the city of New Orleans, and which was confiscated under the legislation of Congress, of July 17, 1862, generally known as the “Confiscation Act.”
They allege that under that legislation, the property in contest, which had been adjudicated under the confiscation proceedings to the defendant, Shift, reverted to them as the legal heirs of Surget, who died on the first of February, 1882.
For answer, the defendant pleaded a general denial, and asserted his ownership of the property under 'a title from the sheriff of the parish of Orleans, by virtue of a writ of seizure and sale, issued in June, 1880, in his suit against Eustace Surget, for the foreclosure of a mortgage securing the unpaid balance of certain promissory notes which he then held.
[647]*647Plaintiffs have taken this appeal from a judgment rejecting their demand and recognizing the defendant as the lawful owner of the property.
The salient and undisputed facts in this case are as follows:
Eustace Surget acquired the property in April, 1860, and as part of the purchase price, he assumed the payment of notes secured by mortgage on the same, executed by his vendor, amounting in capital to $24,000.
The property was confiscated in January, 1865, and sold in April following for $22,000, to the defendant, Shiff, who had in the meantime become the holder of the notes assumed by Surget at his purchase. After deducting costs and taxes, the balance of the proceeds of the sale were paid over to Shiff, who had intervened in the confiscation proceedings, and who applied said proceeds to the satisfaction pro tanto of his notes.
As the mortgage which secured his notes contained the pact' de non alienando, Shiff obtained executory process in June, 1880, by proceeding against Eustace Surget directly, for the payment of the unpaid balance due on his notes; and the defendant being an absentee, the proceedings were carried on contradictorily with an attorney appointed by the court to represent him. The property was adjudicated to Shiff on the third of August, 1880.
Eustace Surget died in France on the first of February, 1882, leaving a last will, in which he instituted his wife, who survived him, his universal legatee.
Plaintiffs are shown to be the relatives of Surget in the nearest line, and to be his sole heirs at law.
Under our views of the controversy, in the light of the established jurisprudence on the true and correct meaning of the Confiscation Act, the pivotal issue in the case hinges upon the validity of the sale effected under the executory process instituted against Surget by the defendant, Shiff, in June, 1880. A proper solution of that issue involves a consideration of the question of the effect of the confiscation on the perpetual ownership or fee of the confiscated property.
In the recent case of Avegno et al. vs. Schmidt & Ziegler, 35 An. 585? we had occasion to consider some of the effects of proceedings instituted under that legislation.
Under the guidance of numerous decisions of the Supreme Court of the United States, we established in that Court the following propositions, which are, to some extent, involved in the present controversy, and which we shall, therefore, abstain from discussing in this opinion .
[648]*6481. The act of Congress, of July 17,1862, generally known as the “ Confiscation Act” and the joint resolution of the same day explanatory thereto, must he construed together.
2. In a sale of property confiscated thereunder, all that could be sold was a right to the property seized, terminating with the life of the person for whose offense it had been seized.
3. Such proceedings and sale do not affect the rights of mortgage existing in favor of third persons on the property which goes to the government or to the purchaser cum onere„
4. A mortgagee, under an act containing the pact de non alienando, can proceed against the mortgagor, after the latter’s expropriation through confiscation proceedings, as though the latter had never been divested of his title. Bigelow vs. Forrest, 9 Wall, 339; Day vs. Micou, 18 Wall. 160; Waples vs. Hays, Morrison’s Transcript, vol. 5, No. 2. Under the principles thus laid down, resting on the high authority of the first tribunal of the land, and which we do not understand to be contested by either party in the case at bar, we conclude that the following propositions can be considered as fully established in the present controversy.
1. That the title which Sliiff acquired at the confiscation sale in May, 1865, expired with Surget at his death in 1882.
2. That the mortgage rights of Shiff on the fee of the confiscated property for the security of the unpaid balance of his notes were not affected by that sale; but remained in full force, notwithstanding his acquisition of a life-estate in the property, and his possession and enjoyment of the same under his title; and that in this case there was no extinction of either the debt or the security by reason of confusion, as provided in our Code.
In this connection, we must here remark that we are in perfect accord with plaintiff’s counsel in their well supported argument that the “Confiscation Act”, a Federal statute', must be construed and interpreted in all its effects, under the rules and principles of the common law. To hold otherwise would be to run counter to all the decisions on this subject of the Supreme Court of the United States, the tribunal of all others so eminently, not to say exclusively, qualified to expound in the last resort all legislation emanating from the Congress of the United States, but above all to interpret a legislation so peculiar in its character, the outgrowth of a terrific civil war, and a relic of the feudal system once prevalent in England.
Hence we cannot consider with any favor, the contention of the defendant’s counsel in their advocacy of the proposition that after coniis- ■ [649]*649cation, the offender had any right or interest, or remainder in and to the property thus wrested from him by the strong arm of the govern-, ment.
Under the common law the absolute ownership of the confiscated property was irrevocably vested in the sovereign. If the act of July 17, 1862, had not been immediately followed, and naturally modified, by the joint resolution explanatory thereto, it follows as a logical conclusion that its intended effect in the minds of its framers would have been to completely forfeit the property from the offender and to vest it absolutely in the government, with full power to transfer it to a purchaser under an absolute title. But, in our opinion, that intention would have been controlled by, and would have yielded to the counter check of that portion of the Constitution, which had its effect on the legislators and drew from them the restrictive declaration contained in their joint resolution. But the effect of that restriction operated only on the nature of the title which the government acquired under the confiscation, and not on the divesture of the offender’s title, which remained complete and final.
Hence, in treating of this subject in the case of Wallach et al. vs. Van Riswick, 92 U. S., p.
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The opinion of tlie Court was delivered by
PochÉj J.
Plaintiffs sue as the sole heirs of blood of the late Eustace Surget, for the recovery of immovable property which he once owned in the city of New Orleans, and which was confiscated under the legislation of Congress, of July 17, 1862, generally known as the “Confiscation Act.”
They allege that under that legislation, the property in contest, which had been adjudicated under the confiscation proceedings to the defendant, Shift, reverted to them as the legal heirs of Surget, who died on the first of February, 1882.
For answer, the defendant pleaded a general denial, and asserted his ownership of the property under 'a title from the sheriff of the parish of Orleans, by virtue of a writ of seizure and sale, issued in June, 1880, in his suit against Eustace Surget, for the foreclosure of a mortgage securing the unpaid balance of certain promissory notes which he then held.
[647]*647Plaintiffs have taken this appeal from a judgment rejecting their demand and recognizing the defendant as the lawful owner of the property.
The salient and undisputed facts in this case are as follows:
Eustace Surget acquired the property in April, 1860, and as part of the purchase price, he assumed the payment of notes secured by mortgage on the same, executed by his vendor, amounting in capital to $24,000.
The property was confiscated in January, 1865, and sold in April following for $22,000, to the defendant, Shiff, who had in the meantime become the holder of the notes assumed by Surget at his purchase. After deducting costs and taxes, the balance of the proceeds of the sale were paid over to Shiff, who had intervened in the confiscation proceedings, and who applied said proceeds to the satisfaction pro tanto of his notes.
As the mortgage which secured his notes contained the pact' de non alienando, Shiff obtained executory process in June, 1880, by proceeding against Eustace Surget directly, for the payment of the unpaid balance due on his notes; and the defendant being an absentee, the proceedings were carried on contradictorily with an attorney appointed by the court to represent him. The property was adjudicated to Shiff on the third of August, 1880.
Eustace Surget died in France on the first of February, 1882, leaving a last will, in which he instituted his wife, who survived him, his universal legatee.
Plaintiffs are shown to be the relatives of Surget in the nearest line, and to be his sole heirs at law.
Under our views of the controversy, in the light of the established jurisprudence on the true and correct meaning of the Confiscation Act, the pivotal issue in the case hinges upon the validity of the sale effected under the executory process instituted against Surget by the defendant, Shiff, in June, 1880. A proper solution of that issue involves a consideration of the question of the effect of the confiscation on the perpetual ownership or fee of the confiscated property.
In the recent case of Avegno et al. vs. Schmidt & Ziegler, 35 An. 585? we had occasion to consider some of the effects of proceedings instituted under that legislation.
Under the guidance of numerous decisions of the Supreme Court of the United States, we established in that Court the following propositions, which are, to some extent, involved in the present controversy, and which we shall, therefore, abstain from discussing in this opinion .
[648]*6481. The act of Congress, of July 17,1862, generally known as the “ Confiscation Act” and the joint resolution of the same day explanatory thereto, must he construed together.
2. In a sale of property confiscated thereunder, all that could be sold was a right to the property seized, terminating with the life of the person for whose offense it had been seized.
3. Such proceedings and sale do not affect the rights of mortgage existing in favor of third persons on the property which goes to the government or to the purchaser cum onere„
4. A mortgagee, under an act containing the pact de non alienando, can proceed against the mortgagor, after the latter’s expropriation through confiscation proceedings, as though the latter had never been divested of his title. Bigelow vs. Forrest, 9 Wall, 339; Day vs. Micou, 18 Wall. 160; Waples vs. Hays, Morrison’s Transcript, vol. 5, No. 2. Under the principles thus laid down, resting on the high authority of the first tribunal of the land, and which we do not understand to be contested by either party in the case at bar, we conclude that the following propositions can be considered as fully established in the present controversy.
1. That the title which Sliiff acquired at the confiscation sale in May, 1865, expired with Surget at his death in 1882.
2. That the mortgage rights of Shiff on the fee of the confiscated property for the security of the unpaid balance of his notes were not affected by that sale; but remained in full force, notwithstanding his acquisition of a life-estate in the property, and his possession and enjoyment of the same under his title; and that in this case there was no extinction of either the debt or the security by reason of confusion, as provided in our Code.
In this connection, we must here remark that we are in perfect accord with plaintiff’s counsel in their well supported argument that the “Confiscation Act”, a Federal statute', must be construed and interpreted in all its effects, under the rules and principles of the common law. To hold otherwise would be to run counter to all the decisions on this subject of the Supreme Court of the United States, the tribunal of all others so eminently, not to say exclusively, qualified to expound in the last resort all legislation emanating from the Congress of the United States, but above all to interpret a legislation so peculiar in its character, the outgrowth of a terrific civil war, and a relic of the feudal system once prevalent in England.
Hence we cannot consider with any favor, the contention of the defendant’s counsel in their advocacy of the proposition that after coniis- ■ [649]*649cation, the offender had any right or interest, or remainder in and to the property thus wrested from him by the strong arm of the govern-, ment.
Under the common law the absolute ownership of the confiscated property was irrevocably vested in the sovereign. If the act of July 17, 1862, had not been immediately followed, and naturally modified, by the joint resolution explanatory thereto, it follows as a logical conclusion that its intended effect in the minds of its framers would have been to completely forfeit the property from the offender and to vest it absolutely in the government, with full power to transfer it to a purchaser under an absolute title. But, in our opinion, that intention would have been controlled by, and would have yielded to the counter check of that portion of the Constitution, which had its effect on the legislators and drew from them the restrictive declaration contained in their joint resolution. But the effect of that restriction operated only on the nature of the title which the government acquired under the confiscation, and not on the divesture of the offender’s title, which remained complete and final.
Hence, in treating of this subject in the case of Wallach et al. vs. Van Riswick, 92 U. S., p. 209, the Supreme Court of the United States uses the following strong and unambiguous language:
“It was not doubted that Congress might provide for forfeitures effective during the life of the offender. The doubt related to the possible duration of a forfeiture, not to the thing forfeited, or to the extent and efficacy of the forfeiture which it contained. It was to meet the doubt that did exist, that the resolution was adopted. * * * * * Plainly it should be so construed as to leave it in accord with the general and leading purpose of the act of which it is substantially a part, for its object was, not to defeat, but to qualify. That purpose, as we have said, was to take away from an adherent of a public enemy his property, and thus deprive him of the means by which he could aid the enemy. * * * * * The obvious meaning is, that the proceedings for condemnation and sale shall not affect the ownership of the property after the termination of the offender’s ‘natural life. After his death, the land shall “ pass or be owned as if it had not been forfeited. Nothing warrants the belief that it was intended that, while the forfeiture lasts, it should not be complete, viz: a devolution upon the United states of the offender’s entire right.” The same doctrine was announced in the case of Pike vs. Wassel, 94 U. S. 711, and was re-affirmed in the case of French vs. Wade, 102 U. S. 134; [650]*650and in the language of that exalted tribunal we may hold that “It must now be construed as the settled rule of decision in that Court.”
The practical effect of that rule on the case now before „us, is that after the condemnation, the property was completely and absolutely wrested from Surget, who lost all control over or connection with it, to such an extent that a transfer of that property from Shiff under his confiscation titles, to Surget, would have vested in the latter nothing more than a life-estate. 102 U. S. 134.
Hence it is a safe, and in fact, an unavoidable conclusion that he could make no disposition whatever of the property which could bind the government, his presumptive heirs or any other party. Hence his honest intention in ratifying the title acquired by Shiff at the confiscation sale could produce no effect, and did not complete the latter’s title. Chaffraix vs. Shiff, 92 U. S. 214.
It is, therefore, clear that he could not dispose of the property by will, and that the status of that property was not, as it could not be, affected by his last will, made in France in the year 1872.
These considerations justify the conclusion that at the death of Sur-get, in 1882, the property reverted to plaintiffs, his legal heirs, unless the fee was divested by the executory process instituted by Shiff in 1880.
It will be noticed that in our decision of the Avegno case, we guardedly omitted to express any opinion as to the effect of the confiscation on the fee, which we intimated to have been vested either in the government or in the purchaser at the confiscation sale. The decision of that point was not necessary to the solution of the issues in that case but the necessities of this case require a discussion of that important question. As the Supreme Court of the United States has thus far eschewed that discussion, the task is hazardous and not free of difficulty.
But although that exalted tribunal has not yet undertaken to finally “determine where the fee dwelt during the life-estate,” we are not left without some guidance from the wisdom of its utterances in our search for light on the subject.
As we have shown above, the absolute forfeiture of the offender’s title has been held by that Court as the immediate effect of the confis- ‘ cation — and the Court has also settled that the second effect was “a devolution upon the United States of the offender’s entire right.” This certainly and inevitably includes the fee, but under the effect of the joint resolution, the fee in the government was not to be perpetual; its duration depended upon, and was limited by, the duration of the life [651]*651of the offender, at whose death the fee reverted absolutely and forever to his heirs at law. Hence we conclude that during the life estate, the fee dwelt in the government in trust for, and for the use of, the presumptive heirs of the offender. This conclusion is fortified by the language of the Supreme Court in the case of Pike vs. Wassell, 94 U. S. 711, in which the presumptive heirs of the offender attempted, and were allowed, to regulate the administration of the property in some particulars by the life tenants. The Court said :
“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. Van 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. The children of Albert Pike, as his heirs apparent, are also apparently the next in succession of the estate. Either they or their representatives must take the title when their father dies. ,If they do not hold the fee they are certainly the only persons now living who represent those for whose benefit the join resolution of Congress was passed. They, at least, appear to have the estate in expectancy. Under these circumstances, as there is no one else to look after the interests of the succession, we think that they may be properly permitted to do. whatever is necessary to protect it from forfeiture or incumbrance.”
We have made this copious quotation from that masterly opinion, not only because it amply bears out our conclusion that during the life estate the fee was held by the Government and owned in expectancy by the presumptive heirs, but for the additional reason that it effectually explodes the very erroneous theory advocated by plaintiffs’ counsel to the effect that the reversion of the fee to the next of kin by the act of the Government has no foundation in law, but depends entirely on its generosity. The very reverse is the truth •, the whole policy of the joint resolution was to restrict the effect of the condemnation so as not to affect the rights of the heirs of blood — hence it provided that “ no pxxnishment or proceedings under said act shall be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.” The next of kin, therefore, succeeds to his author, through the laws of nature and of descent, and not through the effect of the confiscation law, which was shaped and circumscribed so as not to sus[652]*652pend or interfere with the natural and legal preexisting rights of succession of the heirs of the blood.
The advocacy of this extraordinary theory by plaintiffs’ counsel was dictated by the necessities of their case; for under their system of attack against the validity of defendant’s executory process, it becomes urgent that during the life of the offender they should have occupied the status of third parties towards the property in litigation. For the purpose of attack they claim to be third parties, but for the purpose of realizing the fruits of succession they are transformed into heirs of the blood. The position is manifestly contradictory and absolutely untenable. If they are the donees of the United States and not the legal representatives or presumptive heirs of Eustace Surget, they are strangers in the cause — and there is no case before us.
But under their own allegations, supported by the best of evidence, they are the nearest living relations, and they were in 1880 the presumptive heirs of Eustace Surget; and, therefore, they were not third parties quoad the mortgage foreclosed by defendant in his executory process.
Hence, it follpws that they can draw no comfort or relief from the want of re-inscription of defendant’s mortgage, and hence it follows that they are concluded by the failure or refusal of Surget to plead the prescription on Shiff’s notes, which is now set up for the first time by them as a bar to the foreclosure of defendant’s mortgage in 1880.
Could they be allowed to set up the plea of prescription in bar of the exercise of a right which has been exhausted by judicial enforcement, a line of attack not sanctioned by our jurisprudence; this plea would be met and defeated by a codicil in Surget’s will, added thereto in 1879, in which codicil he solemnly charged his executrix with the noble mission of doing everything in her power to complete the title of defendant to the very property now in litigation, as an honest satisfaction of the very debt which his heirs at law now seek to avoid and defeat. Under the principles announced by the Supreme Court of the United States in the Pike case, these plaintiffs who were then, as they are now, the only presumptive heirs of Surget, could and would have been permitted to defend the seizure and sale of this property in 1880. Evidently they were not third or disinterested parties quoad that proceeding and they are bound by its effect.
All these considerations naturally lead to the legal conclusion that the fee was vested in the purchaser at the Shiff’s sale in August, 1880, [653]*653and that the defendant, Shiff, is the lawful owner of the property claimed hy plaintiffs.
Judgment affirmed.
I concur in the decree, Todd, J.