Rice v. United States

(Decision by a divided court.)

The facts sufficiently appear from the following petition, which was filed February 17, 1886, and from the opinion of the court of claims, set out below.

'To the Honorable, the Court of Claims:

'The claimant, Lepine C. Rice, a citizen of the United States, resident in the city of Savannah, in the state of Georgia, respectfully represents:

'(1) Under the provisions of Rev. St. U.S. tit. 'Bankruptcy,' he is the duly appointed and qualified assignee of Robert Erwin and Charles S. Hardee, late partners trading as Erwin & Hardee, in the said city of Savannah, as appears more fuly from certified copies of the adjudication of bankruptcy, and of the order making his appointment, herewith filed, marked, respectively, 'Claimant's Exhibit L. C. R. No. 1,' and 'L. C. R. No. 2,' and as such assignee he now brings this suit for the benefit of the trust so reposed in him.

'(2) The said Robert Erwin, then a citizen of the state of Georgia, on the twenty-first day of December, 1864, was the exclusive owner, in his own right, of two hundred and eighty-three (283) bales of upland cotton stored in the said city of Savannah, which on or about that day was seized and captured by persons duly authorized and acting in behalf of the United States, and the proceeds of the sale made thereof, amounting, as is believed and it is here charged, to the net sum of forty-nine thousand six hundred and eighteen dollars and thirty-nine cents, ($49,618.39,) were paid into the treasury of the United States, pursuant to the provisions of the act of congress approved March 12, 1863, c. 120, commonly called the 'Captured and Abandoned Property Act.' And on or about the first day of July, 1865, he was also the owner, exclusively and in his own right, of another lot of two hundred and sixty-one (261) bales of sea-island cotton then stored at and in the warehouse of Evans & Parnell, in the town of Thomasville, in said state of Georgia, which on or about that day was also so seized and captured by persons duly authorized and acting in behalf of the United States, was removed to and stored at the government cotton-press in the city of Savannah, where it remained in the custody of said agents of the United States until in the month of August following, when it was by them forwarded, upon the schooner Enchantress, to Simeon Draper, the United States treasury agent in the city of New York, by whom it was subsequently sold for the account of the United States, and the proceeds thereof, amounting, as is believed, and it is here charged, to the net sum of one hundred and nineteen thousand eight hundred and fifty-seven dollars and thirty-four cents, ($119,857.34,) were duly accounted for by said Simeon Draper, and were paid into the treasury of the United States in conformity with the said captured and abandoned property act.

'(3) On the thirty-first day of December, 1868, the firm of Erwin & Hardee, of which said Robert Erwin was a member, filed their petition in bankruptcy under the provisions of the acts of congress relating thereto, in pursuance of which, on the fifteenth day of January, 1869, they were duly adjudged bankrupts, as more fully appears in Exhibit L. C. R. No. 1. And, in the proceedings had in such bankruptcy, one Robert H. Footman was appoit ed and qualified as assignee of said Erwin & Hardee, and proceeded in the administration of the trust until February 23, 1877, when, upon his resignation thereof, your petitioner, the claimant, as appears more fully from Exhibit L. C. R. No. 2, was appointed to succeed him, and was duly qualified as assignee of said bankrupts; and the claimant now avers that under and in virtue of the assignment in bankruptcy of the property and estates of said Erwin & Hardee, and each of them, and of the proceedings had in the court in that regard, the claims of said Erwin, hereinbefore mentioned, against the United States, and for which this suit is prosecuted, became and now are vested in the claimant, who is now duly qualified and acting as assignee of said bankrupt, as is hereinbefore alleged.

'(4) Inasmuch as the right of said Erwin to maintain the action provided of and on the fifth day of February, act for and upon the said claims was barred by the limitation of suits under said statute, a special act of congress was passed and became a law as of and on the fifthe day of February, 1877, the same being entitled 'An act for the relief of Robert Erwin;' being found in 19 St. c. 51, which enacts and reads as follows: 'Be it enacted by the senate and house of representatives of the United States of America in congress assembled that the court of claims may take jurisdiction under the provisions of the act of March 12, 1863, entitled 'An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts within the United States,' of the claims of Robert Erwin, of Savannah, Georgia, for property alleged to have been taken from him, which claims were by accident or mistake of his agent or attorney, and without fault or neglect on his part, as is claimed, not filed within the time limited by said act.'

'(5) The claimant now avers that, under and because of said last-recited act of congress, jurisdiction was given anew to this court to hear and determine the said claims of the said Erwin in the manner and by the proceedings provided in the captured and abandoned property act. But, at the time of the enactment of said law, all the property and rights of said Erwin which existed on the thirty-first day of December, 1868, had vested, as aforesaid, in his assignee in bankruptcy; and the said claims, then and now, were and are assets of the estate of said Erwin in bankruptcy, for which the claimant alone as such assignee could, or now can, maintain the proceedings prescribed by said captured and abandoned property act, and under and in virtue of the said special and enabling act hereinbefore recited. And he now comes and brings this suit in pursuance thereof.

'(6) He further avers and charges that the said cotton was never abandoned nor condemned as forfeited to the United States, but that the said United States retain the net proceeds thereof only as trustees for the owner thereof; and in and by the said private act, as herein recited, it has recognized the claimant's right to the proceeds thereof, upon the preferment of his claim in conformity with the provisions of the said captured and abandoned property act.

'(7) He further avers that, except the assignment made as required by the bankrupt act, no assignment has been made at any time of the said claims, or either of them, or of any part of them, or either of them, but the same remain as assets of the said bankrupt estate; and he now claims payment thereof for the benefit of the said estate; and as such assignee he charges that he is justly entitled to have and receive the amounts herein claimed from the moneys in the treasury of the United States, so held in trust for the benefit of those who shall establish their claim to it under the provisions of the captured and abandoned property act.

'He therefore prays for judgment against the United States for the proceeds of the said cotton so as aforesaid seized for and under the authority of the said United States, of which, at the time of its seizue, the said Robert Erwin was sole owner, and which was so sold, and the net proceeds of which, amounting in the aggregate to the sum of one hundred and sixty-nine thousand four hundred and seventy-five dollars and seventy-three cents, ($169,475.73,) have been paid into the treasury, and now remain there as a part of the fund arising under said act.

'ALBERT SMALL, Attorney and Solicitor for Claimant.

'SHELLABARGER & WILSON, of Counsel.'

There was a demurrer filed on the part of the United States, coupled with a motion to dismiss. The court (RICHARDSON, C. J.) thereupon handed down the following opinion: