Jenkins v. Collrd

STATEMENT BY MR. JUSTICE FIELD.

This is an action of ejectment brought by the plaintiffs to recover of the defendant two lots of land in the city of Cincinnati, Ohio, with the buildings thereon, known as 'Nos. 50 and 52 West Pearl Street,' in that city. The plaintiffs below, who are also plaintiffs in error here, are the children and only heirs of Thomas J. Jenkins, deceased. They are residents and citizens of West Virginia. Two of them, Albert Gallatin Jenkins and George R. Jenkins, are minors under the age of 21 years, and appear by their mother and guardian. The defendant is a citizen of Ohio and a resident of Cincinnati.

The petition, the designation given to the first pleading in the case, alleges that prior to 1863 Thomas J. Jenkins was the owner of the real estate mentioned, which is fully described, and that while such owner he joined the Rebel army, and such proceedings were had in the district court of the United States for the southern district of Ohio, in the year 1863, that the property was confiscated, and the life estate of Jenkins was sold, and the defendant William A. Collard, then or subsequently in the year 1865, and during the lifetime of Jenkins, became the owner of the life estate; that Jenkins died on the 1st day of August, 1872; and that thereupon the plaintiffs became seised of the legal estate in the premises, and entitled to the possession thereof; but that the defendant since that time has unlawfully kept them out of possession. The petition also sets forth that the defendant has been receiving the rents, issues, and profits of the premises from the 1st day of August, 1872, up to the commencement of this action without the consent of the plaintiffs, and has refused to account for them; that their yearly value has been, on the average, $1,800; and that the plaintiffs have been deprived of all profit and benefit from the premises since that time, to their damage of $40,000. They therefore pray judgment for the possession of the premises and for the damages alleged.

The defendant appeared to the action, and set up nine defenses. The first defense, which was substantially the general issue, was subsequently withdrawn. To the several other defenses demurrers were interposed, and all of them, except the one to the second defense, were sustained, and no further proceeding respecting them was taken. The second defense was as follows:

'For a second defense the defendant says that he denies that such proceedings were had in the district court of the United States within and for the southern district of Ohio, in the year 1863, or at any other time, that the said property was confiscated, but defendant avers that in a proceeding instituted in said court in the year 1863 a decree was entered in the words and figures following, to wit:

"District court United States, southern district of Ohio. The United States vs. Lots and Stores Nos. 50 and 52 Pearl Street, Cincinnati. This cause came on for hearing at this term, upon the libel of information filed herein, and upon the evidence in the case, and the court find that, in pursuance of law, the attorney of the United States for the southern district of Ohio did issue to the marshal of said district his warrant in writing bearing date March 9, 1863, commanding him to seize, for the cause set forth in said warrant, all the right, title, and interest of one Thomas J. Jenkins, in and to the real estate described in said warrant, and in said libel of information, and that in pursuance there of the said marshal, on the 12th day of March, 1863, seized said real estate, and notified the tenants thereof, and also W. A. Collard, agent of said Jenkins, of such seizure by notice in writing. That afterwards, on the 7th day of March, 1863, a writ of monition issued out of this court, under the laws thereof, to said marshal, by virtue whereof the usual notice prescribed by law and by the rules of this court to all persons interested in said real estate to appear in this court on the first Tuesday of April, 1863, to assert their claims, if any they have, in said real estate, was given by said marshal, which notice was duly published in the Cincinnati Daily Gazette, a newspaper printed and of general circulation in said district, for ten days from and after March 18, 1863, and all persons interested having made default, and the default of all persons being duly entered, and the court having heard the testimony of the witnesses proving that said Thomas J. Jenkins, of the state of Virginia, at the date of said seizure, was the owner of said property, and that ever since the 17th day of July, 1862, the said Thomas J. Jenkins was, and now is, in the army service of the rebels in arms against the United States, to wit, in the state of Virginia; and the court further find that the allegations in said libel are true in fact, and that the life estate of said Jenkins in said real estate is justly and legally forfeited to the United States in pursuance of law, for the causes set forth in said libel.

"It is further ordered, sentenced, and decreed that the life estate of said Thomas J. Jenkins be, and the same is, hereby condemned as enemies' property, and that the same be appraised, advertised, and sold in the manner pointed out by the rules of this court, and to that end the necessary process is ordered to be issued to the marshal to make sale of said real estate in the manner aforesaid, and that upon such sale he bring the proceeds into this court for distribution; and it is further ordered that the rights of all loyal people to share in such distribution are hereby reserved for further hearing.'

'Defendant says that the above was the only decree touching said property, except the decree of confirmation of the sale and distribution of proceeds.

'Defendant says that thereafter such proceedings were had in said cause that there was sold and conveyed by the marshal, in accordance with said decree, the life estate of said Thomas J. Jenkins to one Esward Bepler.

'Defendant says that by reason of the premises all the estate of said Jenkins in said property was not condemned and sold, but that there remained in him the reversion or remainder in fee of said property after said life estate sold to said Bepler. Defendant further says that after the termination of the Civil War said Thomas J. Jenkins bargained and sold to the defendant, in consideration of the sum of eighteen thousand dollars paid to said Jenkins by defendant, all the interest and estate of said Jenkins in said property, and did execute and deliver to the defendant, on the 26th day of August, 1865, a deed in fee simple, with covenants of general warranty, binding himself and his heirs; and Susan L. Jenkins, wife of said Thomas J. Jenkins, did join in said deed, and did release all her right and expectancy of dower in said property.

'Defendant further says that on the 6th day of June, 1865, said Edward Bepler did execute and deliver to the defendant a deed for said life estate purchased by him at said sale. Defendant says that by reason of the premises he became the owner in fee simple of the property, and entered into possession thereof, and so continued to the present time.'

To this defense the plaintiffs demurred, on the ground that it constituted no defense, and was insufficient in law on its face; and they claimed and asked the court to hold that by the decree set up there was an adjudicated forfeiture and sale of the lots described under the confiscation act of congress of July 17, 1862, and the joint resolution of even date therewith, and that there was not left in Thomas J. Jenkins any interest which he could convey by deed, but that all which could become the property of the United States, and could be sold by virtue of a decree of condemnation and order of sale, was the life estate of Thomas J. Jenkins, and that a decree condemning the fee could have no greater effect than to subject the life estate to sale, and therefore the deed executed and delivered by him on the 26th day of August, 1865, was a nullity, and the plaintiffs inherited and were entitled to the property as prayed for in their petition. But the court held that by reason of said decree all the estate of Thomas J. Jenkins in the property was not condemned and sold, but only a technical life estate therein, and that there remained in him the reversion or remainder in fee of the property after the termination of the life estate sold to said Bepler, which he could sell and convey by deed, and which he did sell and convey by the deed of August 26, 1865, and that consequently the plaintiffs had not inherited any interest in the property; and overruled the demurrer, to which the plaintiffs excepted. The plaintiffs then had leave to reply to the defense, and they replied as follows: 'That by the proceedings in the district court of the United States for the southern district of Ohio, in the year 1863, all the estate of Thomas J. Jenkins in the property was confiscated and sold, and there did not remain in him the reversion or remainder in fee after the sale to Bepler; that they admit the execution and delivery of a deed to the defendant on the 26th day of August, 1865, by Thomas J. Jenkins, at Cincinnati, in the state of Ohio, but deny that Jenkins had any interest in the property at that time which he could convey, and aver that defendant took nothing by the deed from him.' To which reply the defendant demurred, and, after hearing the case, the circuit court of the United States for the southern district of Ohio, at October term, 1888, held that only the technical life estate of Thomas J. Jenkins was confiscated by the said decree, and that there was left in him the reversion or remainder, which he sold and conveyed to the defendant by the deed of August 26, 1865, and that consequently the plaintiffs had no interest in the property; and sustained the demurrer, to which ruling the plaintiffs excepted. And the plaintiffs not desiring to plead further, the court gave judgment for the defendant for the reasons stated in overruling the demurrer.

To review that judgment the case is brought to this court on writ of error.

S. A. Miller, for plaintiff in error.

J. D. Brannan, for defendant in error.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court.