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not raised, but the same doctrine of the want of jurisdiction in the courts of common law was affirmed by Lord MANSFIELD in a learned and elaborate judgment.
In Elphinstone v. Bedreechund, the seizure was by military force on land. A judgment had been rendered by the Supreme Court of Bombay, from which an appeal was taken. Lord TENTERDEN, delivering the opinion of the Privy Council, said :
“We think the character of the transaction was that of a hostile seizure made, if not flagrante, yet nondum cessante belloregard being had both to the time, the place, and the person, and consequently that the municipal court had no jurisdiction to adjudge upon the subject; but that if anything was done amiss, recourse could only be had to the government for redress. We shall, therefore recommend it to his majesty to reverse the judgment:” 1 Knapp P. C. R. 300.
“ It should also be observed that according to the English law —which, in this respect, is in accordance with the principles of general law and public jurisprudence—no action can be maintained in a court of municipal law against the captor of booty or prize. If an English naval commander seizes property as belonging to the enemy, which turns out clearly to be British property, he forfeits his prize in the Court of Admiralty, and that court awards the return of it to the party from whom it was taken ; but the case of Lecaux v. Eden decided the question that no British subject can maintain an action against the captor. like manner, property taken under color of military authority falls under the same rule. If property be taken by an officer under the supposition that it is the property of an enemy, whether of a state or of an individual, which ought to be confiscated, no municipal court can judge of the propriety or impropriety of the seizure. It can be judged only by the authority delegated by the Crown:" 3 Phil. International Law 192, $ 130.
See also Alexander v. The Duke of Wellington, 2 Russ. & M. 54; The Army of the Deccan, 2 Knapp's P. C. R. 106; Nichol v. Goodall, 10 Ves. 156; Hill v. Reardon, 2 Sim. & S. 431; Duckwork v. Tucker, 2 Taunt. 2,7; 1 Chit. Gen. Pract. 2, 18, notes; Porte v. U. S., Devereux (Ct. of Claims) 171. These authorities are decisive upon the subject. If the action would not lie against General Curtis, obviously it will not against his vendee. The principal fact and the incident which followed are governed
by the same rule: The case of The Admiralty, 13 Co. 53; Anonymous, Cro. Eliz. 685; King v. Broom, Carth. 398; Turner f. Cary v. Neele, 1 Lev. 243; Ridley v. Egglesfield, 2 Id. 25.
It was competent for Congress to give the jurisdiction; but it has not seen proper to do so : Const. U. S., Art. 1, $ 8. We hold this objection to the plaintiff's right to recover well taken. This conclusion does not conflict with the ruling of the Supreme Court in Mitchell v. Harmony, 13 How. 115. There the property in question belonged to a citizen, and not to an enemy.
II. It remains to consider the second proposition relied upon by the defendant. Chancellor Kent says:
“In a land war, movable property, after it has been in the complete possession of the enemy twenty-four hours (and which goes by the name of booty, and not prize), becomes absolutely his without any right of postliminy, in favor of the original owner; and much more ought this species of property to be protected from the rule of postliminy, when it has not only passed into the complete possession of the enemy, but been bona fide transferred to a neutral:" 1 Kent's Com. 120, last ed.
“ The title to property lawfully taken in war may, upon general principles, be considered as immediately divested from the original owner, and transferred to the captor.” * “ As to personal property, or movables, the title is, in general, considered as lost to the former proprietors as soon as the enemy has acquired a firm possession, which, as a general rule, is considered as taking place after the lapse of twenty-four hours, or after the booty has been carried to a place of safety infra præsidia of the captor:” Lawrence's Wheat. 629.
“If the hostile power has an interest in the property, which is available to him for purposes of war, that fact makes it, primâ facie, a subject of capture. The enemy has such an interest in all convertible and mercantile property within his control, or belonging to persons who are living under his control, whether it be on land or at sea, for it is a subject of taxation, contribution, and confiscation:" Dana's Wheat. $ 256, n. 171.
Vattel says: “We have a right to deprive our enemy of his possessions of every kind which may augment his power and enable him to make war."
“Whenever we have an opportunity, we seize on the enemy's property and convert it to our own use; and thus, besides
diminishing the enemy's power we augment our own, and obtain at least a partial indemnification or equivalent, either for what constitutes the subject of the war, or for the expenses and losses incurred in its prosecution. In a word, we do ourselves justice.” * * “ As the towns and lands taken from the enemy are called conquests, all movable property taken from him comes under the denomination of booty. This booty naturally belongs to the sovereign prosecuting the war, no less than the conquests ; for he alone has such claims against the hostile nation as warrant him to seize on such property and convert it to his own use. His soldiers, and even his auxiliaries, are only instruments, which he employs in asserting his right. He maintains and pays them. Whatever they do is in his name and for him:” Vat. Law Nat. pp. 364, 365, Book 3, chap. 9.
It is usual to allow those making the capture to appropriate more or less of the property to their own use; but the paramount right and title are nevertheless in the sovereign, who may assert them whenever it is deemed proper.
Congress, in passing the Act of March 12th 1863, in relation to “captured and abandoned property,” proceeded upon this ground.
The doctrines thus laid down are in accordance with those of all approved publicists. (See the authorities cited by the authors from whom we have quoted.)
There can be no doubt that the facts, as found, bring this case within these authorities. The commanding general caused the cotton to be seized and brought within his lines. IIe had a firm possession of it there for more than the requisite time. There is no question as to the right of postliminy. The possession by both the general and the purchaser was unchallenged by the enemy. The purchaser conveyed the property to New York, and there sold it.
Under the law arising upon these facts there can be but one result.
We hold the second objection fatal, also, to the right of the plaintiff to recover in this action. If he has any right which can be recognised, it is against the Government, and must be asserted elsewhere.
Judgment must be entered for the defendant, with costs.
Supreme Court of New York,—Broome General Term.
SAMUEL FREEMAN v. JULIA ANN FREEMAN AND JAMES W.
Where A. makes a parol gift of land to B. and wife as long as they live, and the latter move on the land with the assistance of A., pay part of the taxes, make valuable improvements and continue to reside on it for six years, the gift will be treated in equity as in the nature of a contract executed, and A. will not be allowed to recover possession of the land during the life of B. or his wife.
If B. should abandon the land and either directly or by neglecting to appear and defend, connive with A. to eject the wife, the latter will nerertheless be entitled to a judgment in her favor for her own life.
This action was brought to recover the possession of about 45 acres of land situated in the town of Taylor, in the county of Courtland. It was tried before a referee. Upon his decision judgment was entered and docketed in Courtland county in favor of the plaintiff. The defendant, Julia Ann Freeman, who alone defended the action, has appealed from the judgment to the general term of this court.
Waters f. Waters, for plaintiff.
Balcom, P. J.-The conclusions of fact, found by the referee, are as favorable to the defendant, Julia Ann Freeman, as are necessary to present the question as to the correctness of his conclusion of law, that the plaintiff was entitled to recover the possession of the land in dispute, notwithstanding the facts. The answer, so far as the facts are concerned, is substantially sustained by the conclusions of fact found by the referee.
The plaintiff purchased the land and paid $700 therefor on the 7th day of February 1860. He immediately wrote to the defendants, who were then residing in the town of Smithville, in the county of Chenango, as follows: “February 1860. James and Julia Freeman; I have just succeeded in buying a small place for you. There is a small but comfortable log-house and barn on it. You can get a good living on it after a few years. It is for you and yours as long as you live, or as long as you have a mind to stay on it. It is about half a mile from school. I shall be down with teams to move you on to it as soon as the going will permit. SAMUEL FREEMAN.”
Before the end of February 1860, the defendants and their children, in pursuance of a parol gift of the land by the plaintiff to the defendants, went into possession of the same and occupied the same to the time of the trial of this action in March 1867.
When the defendants took possession of the land, only about 3 acres of it had been cleared. They cleared about 12 or 15 acres more of the land and fenced the same, and they also built an addition to the house on the land, being assisted more or less each year by the plaintiff who resided not a great way off. The defendants paid a portion of the taxes on the land during their occupancy of the same.
The evidence, aside from the plaintiff's letter, clearly sustains the conclusion of the referee, that the plaintiff gave by parol the land to the defendants and the use thereof so long as they or either of them should live.
The plaintiff is the father of the defendant James W. Freeman. For some cause, not explained by the evidence, James W. Freeman left his wife and the land and went to live with the plaintiff, his father, the last of April 1866, and did not thereafter return to the land or live with his wife, the defendant Julia Ann Freeman.
James W. Freeman has not defended the action; and it is probable (though there is no finding of the referee on the question), he connived with the plaintiff to turn his wife and children, who remained on the land, out of the possession thereof. But as the gift of the land was to the defendants, husband and wife, jointly, James W. Freeman, the husband, could not do any act that would deprive his wife of her rights, if she has any, by reason of the gift and what she and her husband did upon the land.
The plaintiff sent his team after the defendants, when they moved from Smithville upon the land in question, on the 16th day of February 1860.
It is fair to infer from the evidence that all the plaintiff diil upon the land after the defendants went into possession of the same, was prompted by the love and affection he had for the defendants and their children, and that he was actuated by the same motive when he paid portions of the taxes on the land. According to his letter to the defendants, he did not think they could get