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to any estate in the mortgaged property acquired by the judgment of con. demnation, or which could be acquired under a sale made by virtue thereof. A decree for the foreclosure of his mortgage and a sale under such a decree would carry to the purchaser the entire estate in the mortgaged premises, provided the necessary parties were made to the proceeding to foreclose. It does not lie with the plaintiffs to object that the United States were not made de fendants to Morgan's suit. The estate of the government in the property having been determined by the death of Avegno, it is now of no concern to* any one, so far as it respects the title to the property, whether the government was represented in the suit of Morgan to enforce his mortgage or not. Without pointing out who were the necessary and proper parties to such a suit, the plaintiffs say that A vegno was neither a necessary nor a proper party, and that as he was the sole defendant, the circuit court was without jurisdiction to make any decree in the suit brought by Morgan to enforce his mortgage.
One answer of the defendants to this contention of the plaintiffs is that the proceedings and decree of the district court, in the suit brought by the United States to enforce the forfeiture of the mortgaged premises, was void, because there was no sufficient averment in the libel of a preliminary seizure, by authority of the president, of the premises against which the libel was filed, as required by the act of July 17, 1862, and that consequently the title of Avegno was never divested, and he was not only a necessary, but the only proper party to the suit of Morgan to foreclose his mortgage. We have not found it necessary to pass upon this question. Assuming that the decree of condemnatio made by the district court was valid, its effect was to vest in the United States an estate in the property condemned for the life of Avegno, and it left in Avegno no estate or interest, of any description, which he could convey by deed or devise by will; but the ownership, after his death, was in nowise affected, except by placing it beyond his control while living. Wallach v. Van Riswick, 92 U. S. 202; Pike v. Wassell, 94 U.S. 711; French v. Wade, 102 U. S. 132. The cases cited also declare that the joint resolution passed contemporaneously with the act of July 17, 1862, (12 St. 627,) was intended for the benefit of the heirs of the person whose property was condemned, to enable them to take the inheritance after his death. And in the case of Pike v. Wassell, ubi supra, a bill, filed during his life-time by the children of the person whose life-estate had been condemned and sold, to protect the property from the incumbrance arising from the failure of the purchaser of the life-estate to pay the current taxes thereon, was sustained, the court declaring that, as there was no one else to look after the interests of the succession, the children might be properly permitted to do so.
These decisions, alone considered, apparently sustain the contention of the plaintiffs that a decree in a suit to foreclose the mortgage, to which Avegno was the sole defendant, was without the necessary parties, and was, therefore, void for want of jurisdiction in the court to render it. The answer of the defendants to this contention of the plaintiffs is that, as the mortgage executed by A vegno contained the pact de non alienando, he was a proper and the only necessary party to the suit brought by Morgan to foreclose his mortgage. The effect of the stipulation in a mortgage called the pact de non alienando, by which the mortgagor agrees not to alienate or incumber the mortgaged premises to the prejudice of the mortgage, is well settled in Louisi
In Nathan v. Lee, 2 Mart. (N. S.) 32, the effect was decided to be that “the mortgagee is not bound to pursue a third possessor, but may have the hypothecated property seized in via executina as if no change had taken place in its possessors, because any alienation or transfer made in violation of the pact de non alienando is ipso jure void, as it relates to the creditor, and that this effect of the pact is not annulled by the provisions of the Civil Code in relation to mortgages, and the rules laid down for pursuing the action of mortgage."
In Stanbrough v. McCall, 4 La. Ann. 324, the court reviewed the cases on this subject, and held that where a mortgage contained the pact de non alienando, one who subsequently purchases the property from the mortgagor cannot claim to be in any better condition than his vendor, nor can be plead any exception which the latter could not, and that any alienation in violation of the pact is null as to the creditor. These cases, and those cited in the note, establish the rule-that where a mortgage contains the pact de non alienando the mortgagee may enforce his mortgage by proceeding against the mortgagor alone, not withstanding the alienation of the property, and that all those claim. ing under the mortgagor, whether directly or remotely, will be bound, although not made parties.
In the present case, and in the later case of Shields v. Shiff, 36 La. Ann. 645, the supreme court of Louisiana has held that there was such a privity between a person whose life-estate had been condemned under the act of July 17, 1862, and his heirs, that the latter were bound by a suit and decree to enforce a mortgage executed by their ancestor containing the pact de non alienando, to which the ancestor alone had been made a party defendant. We think this decision is right. It is sustained by the case of Wallach v. Van Riswick, ubi supra, as will appear by the following passages from the opinion of the court in that case, delivered by Mr. Justice STRONG:
"If it be contended that the beirs of Charles S. Wallach," the person whose property had been condemned, “cannot take by descent unless their father, at his death, was seized of an estate of inheritance, e. g., reversion or a remain. der, it may be answered that even at common law it was not always necessary that the ancestor should be seized to enable the heir to take by descent. Shelley's Case is that where the ancestor might have taken and been seized, the heir shall inherit. FORTESCUE, J., in Thornby v. Fleetwood, 1 Strange, 318. If it were true that at common law the heirs could not take in any case where their ancestor was not seized at his death, the present case must be determined by the statute. Charles S. Wallach was seized of the entire fee of the land be fore its confiscation, and the act of congress interposed to take from him that seizin for a limited time. That it was competent to do, attaching the limitation for the benefit of the heirs. It wrought no corruption of blood. In Lord de la Warre's Case, 6 Coke, la, it was resolved by the justices that there was a difference betwixt disability personal and temporary, and a disability absolute and perpetual; as where one is attainted of treason and felony, that is an absolute and perpetual disability, by corruption of blood, for any of his posterity to claim any inheritance in fee-simple, either as heir to him or any ancestor above him; but when one is disabled by parliament (without any attainder) to claim the dignity for his life, it is a personal disability for his life only, and his heir, after his death, may claim as heir to him or to any ancestor above him.' There is a close analogy between that case and the present. Without pursuing this discussion further, we repeat, that to hold that any estate or interest remained in Charles S. Wallach after the confiscation and sale of the land in controversy, would defeat the avowed purpose of the confiscation act and the only justification for its enactment; and to hold that the joint resolution was not intended for the benefit of his heirs exclusively, to enable them to take the inheritance after his death, would give preference to the guilty over the innocent. We cannot so hold.”
These extracts show that it was the opinion of the court that the children of a person whose estate was condemned under the act of July 17, 1862, took, at his death, by descent as his heirs, the fee-simple, and did not derive their title from the United States or by virtue of the confiscation act. Avegno,
1 Donaldson v. Maurin, I La. 29; Moss v. Collier, 14 La. 133; Lawrence v. Burthe, 15 La. 267; Nicolet v. Moreau, 13 La. 313; Guesnard v. Soulie, 8 La. Ann. 58; Succession of Vancourt, 11 La. Ann. 383; Smith v. Nettles, 13 La. Ann. 241; Murphy v. Jandot, 2 Rob. 378; Gas-Light & Banking Co. V. Allen, 4 Rob. 389; Dodd v. Crain, 6 Rob. 58.
the mortgagor, was, therefore, the only person necessary to be made a party to the suit brought by Morgan to foreclose his mortgage, and the proceedings and sale were valid and binding on the plaintiffs, and vested in Morgan a good title to the premises in dispute, which he conveyed to the defendants. But the plaintiffs insist that the mortgage bad been declared inoperative and void by the district court, in dismissing the intervention of Morgan in the proceeding to condemn the mortgaged property, and that the defendants are bound by that judgment. There are two answers to this contention: The first is that this defense-if it be a defense--should have been pleaded in Morgan's suit brought to enforce his mortgage. The decree of a court of competent jurisdiction cannot be collaterally attacked by averring and proving that there was a good defense to the suit, if the defendant had chosen to make it. The second answer is that the district court was without jurisdiction to pass upon the validity of the mortgage in the suit for the condemnation of the mortgaged property. Bigelow v. Forrest, 9 Wall. 339; Day v. Micou, 18 Wall. 156; Claims of Marcuard, 20 Wall. 114. It does not clearly appear from the record that the district court intended, by its decree dismissing the intervention of Morgan, to pass upon the validity of the mortgage; but if its decree is to be interpreted as declaring the mortgage to be invalid and void, the court exceeded its jurisdiction, and the decree was without efs fect upon the mortgage. In our opinion, therefore, Morgan acquired a good title to the premises in controversy by his purchase at the sale made to satisfy his mortgage lien, and his deed to the defendants having vested them with his title, the judgment of the supreme court of Louisiana in their favor was right.
(113 U. S. 310)
THORNLEY 0. UNITED STATES.
(February 2, 1885.) 1. OFFICERS OF THE NAVY-LONGEVITY PAY.
There has been given no authority at any time by congress for the giving of lon. gevity pay to officers of the navy, except those on duty at sea or on the active list
of the navy. 2. STATUTES-MODE OF CONSTRUCTION BY COURTS.
When the meaning of a statute is plain, it is the duty of the courts to enforce it according to its obvious terms. Appeal from the Court of Claims.
Roht. B. Lines and John Paul Jones, for appellant. Sol. Gen. Phillips, for appellee.
Woods, J. The appellant brought this suit against the United States to recover a balance due him, as he contended, on his pay as an officer of the navy. His petition alleged that, on September 1, 1855, he was commissioned a surgeon in the navy; that on June 1, 1861, while he still beld the grade or rank of surgeon, he was, by order of the secretary of the navy, issued by di. rection of the president, placed on the retired list, in accordance with the provisions of section 3 of the act of congress approved February 21, 1861, (12 St. 150,) by reason of incapacity for further service at sea, but that for some years after said retirement be was assigned to and performed active duty; that by section 3 of the act of congress approved July 15, 1870, the sea-pay of an officer on the active list of the navy of the grade or rank held by the appellant at the time of his retirement was fixed, for the first five years. from date of commission, at $2,800 per annum; for the second five years from the date of commission, at $3,200 per annum; for the third five years from the date of commission, at $3,500 per annum; for the fourth five years from the date of commission, at $3,700 per annum; and after 20 years from the date of commission, at $4,200 per annum.
The petition further alleged that section 1 of the act of congress approved March 3, 1873, (17 St. 247,) fixed the pay of officers of the navy, who were then or might thereafter be retired on account of incapacity, resulting from sickness or exposure in the line of duty, at 75 per cent. of the sea-pay of the grade or rank which they held at the time of their retirement; that the act of congress approved April 7, 1882, (22 St. 41,) entitled “An act for the relief of Medical Director John Thornley, United States navy," the appellant, directed that he be considered as having been retired from active service as a•surgeon and placed on the retired list of officers of the navy, June 1, 1861, on account of physical incapacity originating in the line of duty, and that he be paid accordingly. The petition also referred to section 1 of the act approved August 5, 1882, which provided that all officers of the navy should "be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and receive all the benefits of such actual service, in all respects, in the same manner as if said service had been continuous in the regular navy."
The petition further alleged that the appellant, under a proper construction of said acts, should have received pay since March 3, 1873, at the following rates, to-wit: from March 3, 1873, to September 1, 1875, $2,775 per annum, or 75 per centum of the sea-pay of a surgeon on his fourth lustrum from the date of his commission; and from September 1, 1875, to the time of filing his petition, $3,150 per annum, or 75 per centum of the sea-pay of a surgeon after 20 years from the date of his commission; that such pay had been wrongfully withheld from him, and he had only been paid since March 3, 1873, at the rate of $2,400 per annum. The petitioner, therefore, demanded judgment for $6,343.67.
The findings of fact made by the court of claims, January 29, 1883, were as follows: “On the third of September, 1855, the petitioner was commissioned a surgeon in the navy. On the first of June, 1861, on account of physical incapacity to perform further service at sea, he was placed on the retired list as a surgeon, under the third section of the act of February 21, 1861, (12 St. 147, 150.) From March 3, 1873, to November 16, 1882, he was paid at the rate of $2,400 per annum, but the accounting officers of the treasury have refused to allow him any more than that amount.” From these facts the court deduced the conclusion of law that the petitioner was not entitled to a recover, and dismissed his petition. From this judgment the petitioner appealed.
*It is not seriously contended that section 1 of the act of August 5, 1882, referred to in this petition, has any application to the case. The controversy arises upon the third section of the act of July 15, 1870, (16 St. 321,) enti. tled “An act making appropriations for the naval service for the year ending June 30, 1871, and for other purposes," and the second clause of the first section of the act of March 3, 1873, entitled “An act making appropriations for the naval service for the year ending June 30, 1874, and for other purposes.' 17 St. 547. These sections have been reproduced in the Revised Statutes, and read as follows, respectively:
“Sec. 1556. The commissioned officers and warrant officers on the active list of the navy of the United States, and the petty officers, seamen, ordinary seamen, firemen, coal-heavers, and employes, in the navy, shall be entitled to receive annual pay at the rates hereinafter stated, after their respective designations: The admiral, thirteen thousand dollars; * surgeons, pay. masters, and chief engineers, who have the same rank with paymasters during the first five years after date of commission, when at sea, two thousand eight hundred dollars; on shore duty, two thousand four hundred dollars; on leave or waiting orders, two thousand dollars; during the second five years after such date, when at sea, three thousand two hundred dollars; on shore duty, two thousand eight hundred dollars; on leave or waiting orders, two
thousand tour hundred dollars; during the third five years after such date, when at sea, three thousand five hundred dollars; on shore duty, three thousand two hundred dollars; on leave or waiting orders, two thousand six hundred dollars; during the fourth five years after such date, when at sea, three thousand seven hundred dollars; on shore duty, three thousand six hundred dollars; on leave or waiting orders, two thousand eight hundred dollars; after twenty years from such date, when at sea, four thousand two hundred dollars; on shore duty, four thousand dollars; on leave or waiting orders, three thousand dollars."
*"Sec. 1588. The pay of all officers of the navy who have been retired after * forty-five years' service after reaching the age of sixteen years, or who have been or may be retired after forty years' service, upon their own application to the president, or on attaining the age of sixty-two years, or on account of incapacity resulting from long and faithful service, from wounds or injuries received in the line of duty, or from sickness or exposure therein, shall, when not on active duty, be equal to seventy-five per centum of the sea-pay provided by this chapter for the grade or rank which they held, respectively, at the time of their retirement. The pay of all other officers on the retired list shall, when not on active duty, be equal to one-half the sea-pay provided by this chapter for the grade or rank held by them, respectively, at the time of their retirement."
Section 1 of the act of March 3, 1873, upon which section 1588 is based, also provided that no officer on the retired list of the navy should be employed on active duty except in time of war. This provision is now reproduced in section 1462, Rev. St. The contention of the appellant is that upon these enactments he is entitled to what is known as “longevity pay.” The contention of the United States is that longevity pay is only given to officers on the active list of the navy, and not to retired officers, to which latter class the appellant belongs.
Where the meaning of a statute is plain, it is the duty of the courts to enforce it according to its obvious terms. In such a case there is no necessity for construction. Benton v. Wickwire, 54 N. Y. 226; Woodbury v. Berry, 18 Ohio St. 456; Bosley v. Mattingly, 14 B. Mon. 72; Ezekiel v. Dizon, 3 Kelly, 146; Farrel Foundry v. Dart, 26 Conn. 376; Sussex Peerage Case, 11 Clark & F. 85, 143; Bish. Written Law, 8 72. Applying this rule, we are of opinion that the case of the appellant finds no support in any act of congress.
The effect of the act for the relief of the appellant referred to in his peti. tion was simply to allow him the rate of pay of the grade in which he was on retired, prescribed by section 1588 of the Revised Statutes, for officers retired on account of incapacity-resulting from long and faithful service, from wounds * or injuries received in line of duty, or from sickness or exposure, therein. It placed him on the same footing in respect of his pay, and no other, as section 1588 placed the retired officers therein mentioned. There have been but three acts of congress giving longevity pay to officers of the navy. The first was the act of March 3, 1835, (4 st. 755,) by which longevity pay was given to surgeons only. At that time retired officers were unknown to the navy. The second was the act of June 1, 1860, (12 St. 23,) which gave it to commanders, lieutenants, surgeons, engineers, pursers, boatswains, gunners, carpenters, and sailmakers, when on duty at sea; and the third was the act of July 15, 1870, which gave it generally to officers on the active list of the navy, including surgeons. By no act, therefore, since the foundation of the government, has congress ever given longevity pay to officers of the navy, except those on duty at sea, or on the active list of the navy; and the statute book is now bare of any enactment which awards to any officer of the navy, not on the active list, any increase of pay for length of service.
The appellant seeks to find a reversal of this persistent policy of congress,