Illinois Company v. Bosworth

This was an action brought by Millard Bosworth and Charles H. Bosworth, only surviving children of A. W. Bosworth, deceased, to recover possession of one undivided sixth part of a certain tract of land in New Orleans, which formerly belonged to their said father. The petition states that the latter having taken part in the war of the Rebellion, and done acts which made him liable to the penalties of the confiscation act of July 17, 1862, the said one-sixth part of said land was seized, condemned, and sold under said act, and purchased by one Burbank in May, 1865; that the said A. W. Bosworth died on the 11th day of October, 1885; and that the plaintiffs, upon his death, became the owners in fee-simple of the said one-sixth part of said property, of which the defendant the Illinois Central Railroad Company was in possession. The company filed an answer, setting up various defenses; among other things tracing title to themselves from the said A. W. Bosworth, by virtue of an act of sale executed by him and his wife, before a notary public, on the 23d day of September, 1871, disposing of all their interest in the premises, with full covenant of warranty. They further allege that said Bosworth had, before said act of sale, not only been included in the general amnesty proclamation of the president, issued on the 25th of December, 1868, but had received a special pardon on the 2d of October, 1865, and had taken the oath of allegiance, and complied with all the terms and conditions necessary to be restored to, and reinvested with, all the rights, franchises, and privileges of citizenship. The parties, having waived a trial by jury, submitted to the court an agreed statement of facts in the nature of a special verdict, upon which the court gave judgment in favor of the plaintiffs. To that judgment the present writ of error is brought.

Those portions of the statement of facts which are deemed material to the decision of the case are as follows, to-wit: '(1) The plaintiffs, Millard Bosworth and Charles H. Bosworth, are the only surviving legitimate children of Abel Ware Bosworth, who died intestate in the city of New Orleans on the 11th day of October, 1885, and have accepted his succession with benefit of inventory. (2) By act before Edward Barnett, notary, on the 25th day of April, 1860, Abel Ware Bosworth purchased from H. W. Palfrey and others a one-third undivided interest in fee-simple title and full ownership in and to the property described in the petition of the plaintiffs in this cause. (3) On the breaking out of the war between the states, Abel W. Bosworth entered the Confederate army, and bore arms against the government of the United States from about March, 1861, until April, 1865. (4) Under and by virtue of the confiscation act of the United States approved July 17, 1862, and the joint resolution contemporary therewith, the said property was seized by the proper officer of the United States, and on the 20th day of January, 1865, a libel of information was filed against the said property as the property of A. W. Bosworth, in the district c urt of the United States for the eastern district of Louisiana. Into these proceedings intervened Mrs. Rachel Matilda Bosworth, wife of said Abel Ware Bosworth, to protect her community interests in said property, and, after due proceedings had, the said court entered a decree of condemnation as to A. W. Bosworth, and a decree in favor of Mrs. Rachel Matilda Bosworth, recognizing her as the owner of one-half of said one-third undivided interest in and to said property. A venditione exponas, in due form of law, issued to the marshal for the sale of said property under said decree, and at said sale 'all the right, title, and interest of A. W. Bosworth in and to the one undivided third part of said property' (reserving to Mrs. Rachel M. Bosworth her rights therein, as per order of the court) was adjudicated on the ___ day of the month of May, 1865, to E. W. Burbank, for the price and sum of $1,700, and the marshal executed a deed in due form of law to said Burbank for the same.' '(6) That on the 2d day October, 1865, Andrew Johnson, president of the United States, granted to said A. W. Bosworth a special pardon, a duly-certified copy of which, together with the written acceptance by said Bosworth thereof, is hereto annexed, made part of this statement of facts, and marked 'Document A.' (7) That on the 23d day of September, 1871, by act before Andrew Hero, Jr., notary public, the said A. W. Bosworth and Mrs. Rachel Matilda Bosworth, his wife, sold, assigned, and transferred to Samuel H. Edgar, with full warranty, under the laws of Louisiana, all their right, title, and interest in and to the said property, including the one-sixth undivided interest claimed in this suit by the plaintiffs and described in the petition, for the price and sum of eleven thousand six hundred and sixty-six .66 2/3 dollars. (8) That on the 18th day of December, 1872, the said E. W. Burbank, by act before the same notary, transferred all his right, title, and interest in the nature of a quitclaim to S. H. Edgar aforesaid, for the price and sum of five thousand one hundred dollars. (9) That the said S. H. Edgar, by act executed before Charles Nettleton, a duly-authorized commissioner for Louisiana in New York city, on the 10th day of October, 1872, and duly recorded in the office of the register of conveyances for the parish for Orleans on the 30th day of October, 1872, sold and transferred the same property, with full warranty under the laws of Louisiana, unto the New Orleans, Jackson & Great Northern Railroad Company. (10) That by various transfers made since said date, as set forth in the answers filed in this suit, the said property has come into the possession of the Chicago, St. Louis & New Orleans Railroad Company, who has leased the same to the Illinois Central Railroad Company, which said company holds said property under said lease.' '(14) It is further agreed, as a part of this statement of facts, that the president of the United States, on the 25th day of December, 1868, issued a general amnesty proclamation, and the terms of said proclamation, as found in the Statutes at Large of the United States, are made part of this statement of facts.'

The following is a copy of the special pardon (Document A) referred to in the statement of facts, and of the written acceptance thereof, to-wit: 'Andrew Johnson, president of the United States of America, to all to whom these presents shall come, greeting: Whereas A. W. Bosworth, of New Orleans, Louisiana, by taking part in the late Rebellion against the government of the United States, has made himself liable to heavy pains and penalties; and whereas, the circumstances of his case render him a proper object of executive clemency: now, therefore, be it known that I, Andrew Johnson, president of the United States of America, in consideration of the premises, divers other good and sufficient reasons to me thereunto moving, do hereby grant to the said A. W. Bosworth a full pardon and amnesty for all offenses by him committed arising from participation, direct or implied, in the said Rebellion, conditioned as follows: (1) This pardon to be of no effect until the said A. W. Bosworth shall take the oath prescribed in the proclamation of the president dated May 29th, 1865. (2) To be void and of no effect if the said A. W. Bosworth shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor. (3) That the said A. W. Bosworth first pay all costs which may have accrued in any proceedings instituted or pending against his person or property before the date of the acceptance of this warrant. (4) That the said A. W. Bosworth shall not, by virtue of this warrant, claim any property, or the proceeds of any property, that has been sold by the order, judgment, or decree of a court under the confiscation laws of the United States. (5) That the said A. W. Bosworth shall notify the secretary of state, in writing, that he has received and accepted the foregoing pardon. In testimony whereof I have hereunto signed my name, and caused the seal of the United States to affixed. Done at the city of Washington this second day of October, A. D. 1865, and of the independence of the United States the ninetieth. ANDREW JOHNSON. By the President: WILLIAM H. SEWARD, Secretary of State. [Seal.]' 'Washington, D. C., October 5th, 1865. Honorable William H. Seward, Secretary of State-Sir: I have the honor to acknowledge the receipt of the president's warrant of pardon, bearing date October 2d, 1865, and hereby signify my acceptance of the same, with all the conditions therein specified. I am, sir, your obedient servant, A. W. BOSWORTH.' The proclamation of general amnesty and pardon issued on the 25th day of December, 1868, referred to in the last article of the statement of facts, is found in volume 15, pp. 711, 712, St. at Large. After referring to several previous proclamations, it proceeds as follows, to-wit: 'And whereas, the authority of the federal government having been re-established in all the states and territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions as at the dates of said several proclamations were deemed necessary and proper may now be wisely and justly relinquished, and that a universal amnesty and pardon for participation in said Rebellion extended to all who have borne any part therein will tend to secure permanent peace, order, and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the national government, designed by its patriotic founders for the general good: now, therefore, be it known that I, Andrew Johnson, president of the United States, by virtue of the power and authority in me vested by the constitution, and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally, and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or Rebellion, a full pardon and amnesty for the offense of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the constitution and the laws which have been made in pursuance thereof.'

James Fentress, Thomas J. Semmes, and Girault Farrar, for plaintiffs in error.

E. H. Farrar and E. B. Kruttschnitt, for defendants in error.

[Argument of Counsel from pages 97-99 intentionally omitted]

BRADLEY, J.