Pike v. Wassell, 94 U.S. 711

Pike v. Wassell.

Certain lands in Arkansas, liable to confiscation under the act of July 17, 1862 (12 Stat. 589), and belonging to A., a non-resident of the State, were seized Feb. 16, 1865, by the marshal, pursuant to instructions from the district attorney, who, on the 17th of that month, filed a libel of information against them in the proper District Court of the United States. On the following day, a warrant of arrest and monition was issued and duly served. The libel was amended April 5, so as to embrace other lands of A. On that day a decree of condemnation, forfeiture, and sale of all the lands was entered by that court, and they were sold on the 28th of that month by the marshal, under a venditioni exponas. The purchasers subsequently conveyed them to B. The decree of condemnation was affirmed by the Circuit Court. A writ of attachment, sued out of one of the courts of Arkansas, March 9,1865, at the suit of sundry creditors of A., was on that day levied upon the same lands. A., by his attorney, entered his appearance to the suit, and judgment was rendered against him ept. 29. All of said lands were sold by the sheriff under a fieri facias. B. ecame the purchaser, and refuses to pay taxes upon them, in order that, y buying them at a sale for delinquent taxes, his title may be perfected. • is still living, and his children brought this suit. Held, 1. That the appearance of A. did not discharge the lien of the attachment. 2. That the levy of lat writ by the sheriff upon the lands seized by the marshal was void, and at. s interest in them is determinable upon the death of A. 8. That the ecree of condemnation did not divest the rights of the attaching creditors in b e an s not seized by the marshal, and that B.’s title to them in fee, acquired y is purchase at the sheriff’s sale, was not affected by the proceedings in

confiscation, and the sale under them. 4. That the affirmance by the Circuit Court of the decree gave no validity to it as against the attaching creditors. 5. That the heirs apparent or presumptive of A. have, in regard to the lands so seized and sold by the marshal, a right to protect their estate from forfeiture or incumbrance, and that B.’s refusal to pay the taxes on them presents a proper case for relief in a court of equity.

Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.

Mr. Luther H. Pike for the appellants.

Mr. William M. Randolph for the appellees.

Mr. Chief Justice 'Waite delivered the opinion of the court.

In Wallach v. Van Riswick, 92 U. S. 207, 208, we decided that after a seizure and an adjudicated condemnation and sale, under the Confiscation Act of July 17, 1862, 12 Stat. 589, of the lands of one engaged in rebellion against the United States, there was “ left in him no estate or interest of any description which he could convey by deed, and no power which he could exercise in favor of another.” We also held, p. 213, that the joint resolution passed contemporaneously with the approval of the act, 12 Stat. 627, was “ intended for the benefit of his heirs exclusively, to enable them to take the inheritance after his death.” As to him, the forfeiture was complete and absolute; but the ownership, after his death, was in no wise affected, p. 209, except by placing it beyond his control while living.

In this case, it appears that the United States seized lot 10, nine feet off the east side of lot 9, and two and one-half feet off the west side of lot 11, in block 1, west of the Quawpaw line, and the undivided half of the west half of lots 1, 2, and 3, in block 81, Feb. 16; and on the next day filed their libel of information against this property in the District Court. A warrant of arrest and monition was issued on the next day, and duly served. The lots thus proceeded against were not levied upon under the attachment issued out of the Pulaski Circuit Court until March 9. Consequently, as to this property the attachment was defeated by the decree of condemnation, and the defendants acquired no title through the proceedings in the State court. All the interest they have in it comes through the confiscation sale, and terminates upon the death of Albert Pike, to whom it belonged when seized.

But as to the remainder of the property, there never was any seizure by the United States; and the amendment to the libel, upon which alone the decree of condemnation rests, was made long after the levy of the attachments. When levied upon, therefore, the property was open to attachment; and the subsequent condemnation, without a previous seizure, did not divest the attaching creditors of any rights acquired by their proceedings. As to them, the court had no jurisdiction, because it had never taken the property, and had never issued its warrant of arrest or monition. The affirmance of the decree under the writ of error to the Circuit Court, prosecuted by Albert Pike, operated only upon him. The creditors were no more a party to the proceedings in error than they had been to the original

The appearance of Albert Pike to the attachment suits did not, under the law of Arkansas, discharge the lien of the attac ent. No bond was given, such as was required for that purpose. Gould’s Dig. c. 17, sect. 15, p. 171; Delano n. Ken-

5 Ark. 459.

Our conclusion, then, is, that as to the property actually seized by the United States and condemned by the decree the defendants hold only by virtue of the confiscation sale, but that as to so much as was not actually included in the seizure the defendant Wassell did acquire, by the proceedings in the State court, all the title of Albert Pike at the time of the levy of the attachments. •

It only remains to inquire whether the children of Albert Pike stand in such a relation to the property confiscated, and not affected by the attachment proceedings, that they may maintain an action to require the defendants to keep down the taxes during the life of their father.

There can be no doubt but the defendants, as tenants for life, are bound in law to pay the taxes upon the property during the continuance of their estate. Vamy v. Stevens, 22 Me. 334; Cairns v. Chabut, 3 Ed. (N. Y.) Ch. 312. This the defendants do not dispute ; but they insist that, until the death of the father, the children have no interest in the property, and, therefore, cannot appear to protect the inheritance.

The defendants admit that they have determined not to pay the taxes upon the property. The danger of incumbrance by reason of this failure to perform their duties as tenants for life is, therefore, imminent, and the case a proper one for a court of equity to interfere and grant appropriate relief. In Cairns v. Chabut, supra, when the tenant for life failed to keep down the taxes, an order was made for the appointment of a receiver of so much of the rents and income of the estate as should be necessary to pay off and discharge the amounts then in arrear. We see no reason why similar relief may not be granted in respect to the accruing taxes, in case the tenants fail to perform their duties in that behalf ; but, without undertaking to direct specifically as to the form in which the protection asked shall be secured, we shall reverse the decree, and remand the cause to the Circuit Court, with instructions to proceed in conformity to this opinion, as law and justice may require ; and it is

Memphis v. Brown.

A., having a decree against the city of Memphis for the payment of money, obtained, by judgment rendered March 30, 1875, a mandamus, directing her, for the payment of the decree, to levy a tax upon all the taxable property of the city. She thereupon passed an ordinance levying a special tax of fifty-four cents “ on the $100 worth of property.” Under the laws of the State, taxable real and personal property, other than merchants’ capital, is embraced in one tax-list, and merchants’ capital in another. A., finding that such capital was not subjected to the special tax, although it was to that levied for all other purposes, and that the required sum would not be raised, moved for a further peremptory mandamus, requiring such capital, as it was assessed for other purposes in the year 1875, to be included in the property to be taxed for his benefit- Such mandamus was directed by judgment March 2, 1876. On the 20th o the following May, the city moved to set aside the latter judgment; but

On motion, 1. To dismiss a writ of error to the Circuit Court of the United States for the Western District of Tennessee. 2. To vacate the supersedeas.

Brown obtained a decree in the Circuit Court of the United States for the Western District of Tennessee against the city of Memphis for 8292,000, in conformity with the opinion of this court in the case reported in 20 Wall. 289.

Upon his petition, that court ordered, March 30, 1875, the issue of a peremptory writ of mandamus against the city, directing the levy of a tax for his benefit upon all the taxable property of the city. Under the laws of Tennessee, taxable personal and real property, other than merchants’ capital, is embraced in one tax-list, and merchants’ capital in another. In March, 1876, Brown discovered that the tax-collector, pursuant to an ordinance passed by the city Dec. 10, 1875, levying “ a special tax of fifty-four cents on the 8100 worth of property,” was collecting the tax levied for his account on personal and real property, but not on merchants’ capital, although the city, for all other purposes, was collecting a tax on merchants’ capital.

It appearing that the tax upon the personal and real property alone would not be sufficient to raise the required sum, a motion was made in the original suit by Brown for a further peremptory mandamus, requiring the city to include in the property to be taxed for his benefit the taxable merchants capital, as returned and assessed for taxation for other purposes in the year 1875. This motion was granted March 2, 1876, and a judgment entered accordingly. Afterwards, during the same term, May 20, the city appeared and moved the court to set aside the order of March 2; but this motion was refused, and that order re-entered as the final judgment of the court in the premises. A writ of error was sued out upon this last judg ment, and a supersedeas perfected, by giving the required bon within sixty days thereafter.

J/r. P. Phillips and Mr. W. M. Randolph in support of the motions.

By art. 2, sect. 28, of the Constitution of the State of Tennessee, all property is taxable. No one species is to be taxed higher than another of equal value, and all taxation is to be equal and uniform throughout the State.

The judgment of March 30, 1875, requiring that the tax should be levied on all the taxable property of the city, was rendered in a direct proceeding, to which the city was a party.

The subsequent orders were mere declarations of what that judgment contained, and to neither of them does error lie.

The only judgment which can be reviewed is that of March 30, 1875, which settled definitively the rights of the parties, and to which the city may now prosecute a writ of error. Her right to do so demonstrates that the present writ cannot be sustained.

The supersedeas is only to the order of May 20, 1876. Neither the judgment of March 30, 1875, nor the order of March 2, 1876, is affected by the present proceedings.

It is very evident that, if either March 30,1875, or March 2, 1876, be adopted as the day on which the final determination was had, the supersedeas cannot be maintained, as more than sixty days from either date had elapsed before the filing of the writ and bond.

Mr. IF. K C. Humes, contra.

Mr. Chief Justice Waite delivered the opinion of the court.

We think that the order made by the Circuit Court, May 20, 876, upon the motion to subject merchants’ capital to the tax was such a final judgment as may be brought here for reexamination by a writ of error. The precise question decided y t at order had never before been presented in the cause.

e city was then for the first time required, in express terms,

subject this particular class of property to the adjudged

axation. The writ was, therefore, properly sued out upon the judgment. J r