Avegno v. Schmidt

This was an action brought in the civil district court for the parish of Orleans, in the state of Louisiana, by the plaintiffs in error, heirs of Bernard Avegno, deceased, two of whom, being minors, were represented by his widow, as their tutrix, against the defendants in error, to establish their title to certain real estate in the city of New Orleans, and to recover possession thereof. The case was tried by the court without a jury, and judgment was rendered for the defendants. Upon appeal to the supreme court of the state, the judgment of the civil district court was affirmed. To reverse that judgment of affirmance, the plaintiffs have brought this writ of error. The pleadings and evidence disclose the following facts:

On April 3, 1862, Bernard Avegno, being the owner of the property in dispute, executed a mortgage thereon to Israel C. Harris to secure promissory notes made by Avegno, payable to his own order and indorsed by him, amounting in the aggregate to $36,500, which he delivered to Harris. The mortgage contained the pact de non alienando, by which the mortgagor agreed not to sell, alienate, or incumber the mortgaged property to the prejudice of the mortgage. The notes and mortgage were afterwards transferred by Harris to Charles Morgan. The mortgage being still in force, on January 20, 1865. the United States filed, in the district court for the district of Louisiana, a libel of information against the mortgaged property, of which Bernard Avegno was still the owner, to condemn it as confiscated, under the act of July 17, 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, and confiscate the property of rebels, and for other purposes,' (12 St. 589,) for the offenses of its owner, Avegno. A writ of seizure was issued to the marshal, who, in his return, dated February 14, 1865, stated that he had seized and taken into his possession the property libeled.

Morgan, the mortgage creditor, intervened in the suit for confiscation, claiming to be paid out of the proceeds of the property the amount due on his mortgage. The district court, on August 1, 1865, made a decree condemning the property in question as forfeited to the United States, and ordering it to be sold, and dismissing the intervention of Morgan, on the ground that his mortgage 'could not be acknowledged.' The decree of condemnation made by the district court was not followed by a sale of the forfeited premises, nor were any proceedings taken under it. Afterwards, on June 25, 1867, Morgan filed his bill in the circuit court for the district of Louisiana against Avegno, for the enforcement of his mortgage. On July 11, following, the court made a decree, under which, on December 21, 1868, the property was sold by the marshal and purchased by Morgan, to whom, on December 26, the marshal made a deed therefor. On March 1, 1869, Morgan conveyed the premises to the defendants. On August 12, 1872, Bernard Avegno died, leaving the plaintiffs, who are his children, as his heirs at la. They claim title to the property sued for under Bernard Avegno as his heirs. The averment of their petition is 'that, by reason of such confiscation and forfeiture, all right, title, interest, and ownership of Bernard Avegno (deceased) was absolutely divested; that said real estate was during his life-time forfeited to the United States; but that the naked ownership thereof was then vested in your petitioners, who were his legitimate children, living at the time of the rendition of said decree and judgment of condemnation and forfeiture; that on the twelfth day of August, 1872, Bernard Avegno died, whereupon the title and interest of the United States in the said property came to an end, and said life-estate was terminated, your petitioners being therefore entitled to the full ownership thereof.'

Albert Voorhies, for plaintiffs in error.

[Argument of Counsel from pages 295-296 intentionally omitted]

Henry J. Leovy and Henry C. Miller, for defendants in error.

Mr. Justice Woods delivered the opinion of the court. He recited the facts as above stated, and continued: