Argument for Plaintiffs in Error.

to whom, on December 26, the marshal nade 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 law. 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 lifetime 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 12th 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."

Mr. Albert Voorhies for plaintiffs in error.-The record shows a preliminary seizure before filing the libel for confiscation, and a subsequent seizure and actual possession by the marshal. This will be presumed to have continued till subsequent dispossession is shown. The judgment of confiscation vested the life estate in the United States, and the remainder in the presumptive heirs. Semmes v. United States, 91 U. S. 21. The title of the presumptive heirs does not spring from the sale, but from the forfeiture. See Wallach v. Van Ryswick, 92 U. S. 202; Pike v. Wassell, 94 U. S. 711; French v. Wade, 102 U. S. 132. Defendants are so impressed with the legal difficulties in the way of their title, resulting from want of proper parties in the foreclosure proceeding, that they fall back on the pact de non alienando contained in the mortgage act. There are in the Louisiana statutes, no textual provisions defining and regulating the pact de non alienando. Hence, when the Codes were adopted, it was at first objected that the pact itself was inconsistent with the provisions of both Codes-of 1808 and 1825. But the courts held otherwise, placing the matter upon

Argument for Plaintiffs in Error.

its true basis, to wit; a contractual stipulation, which parties are at liberty to make to the extent that the stipulation does not conflict with, or militate against existing legislation. Nathan v. Lee, 2 Martin, N. S. 32; Donaldson v. Maurin, 1 La. 29; Barrow v. Bank of Louisiana, 2 La. Ann. 453; Snow v. Trotter, 3 La. Ann. 268; Stanbrough v. McCall, 4 La. Ann. 324. Individuals have no right to stipulate against forced sales of their property under judicial sanction; nor can they shield their property against legal proceedings for its condemnation in cases of rebellion;-nor can they bind government against any expropriation for public purposes. In other words, a debtor may bind himself by contract not to alienate his property; but he cannot thereby estop or paralyze the action of courts of justice, or of the government. The defendants contend that the remedy of the mortgage creditor is by foreclosure against the confiscatee, or against him and the purchaser at the condemnation sale. There, is no support for this position. Day v. Micou, 18 Wall. 156, cited in support of it, does not sustain it. Morgan was a party to the suit below, by intervention, and his claim was rejected, on the merits. The agreement with the District Attorney, subsequently filed, left the judg ment of condemnation in full force, and without appeal. The record shows affirmatively that the court dismissed Morgan's intervention upon rejection of his demand, while it sanctioned the other claimants' demands as mortgage creditors. Defendants further contend that, before the appeal was finally disposed of, Avegno was pardoned, and that restored to him the property in question. There is a plain answer to this. The four lots had already been sold at the suit of Morgan v. Avegno, and had been purchased by the former for the amount of his mortgage notes, before the proclamation of amnesty. How then can defendants invoke the doctrine of Knote v. United States, 95 U. S. 149, 154?

Mr. Henry C. Miller for defendants Schmidt and Ziegler.

Mr. Henry J. Leovy for Morgan's estate.

Opinion of the Court.

MR. JUSTICE WOODS delivered the opinion of the court. He recited the facts as above stated, and continued :

It is plain, and is not disputed by the plaintiffs, that if there had been no proceeding instituted by the United States for the condemnation of the property, and no intervention therein by Morgan, he would have acquired a good title to the premises, by his purchase thereof at the sale made under the decree of the Circuit Court rendered upon his bill to enforce his mortgage, and his deed therefor to the defendants would have vested in them a good and indefeasible title.

The plaintiffs contend, however, that the title so conveyed is void, for two reasons, first, because the judgment of condemnation divested Avegno of all interest and estate in the forfeited premises, and the Circuit Court was, therefore, without jurisdiction to render a decree for the sale of the property in the suit brought to foreclose the mortgage to which Avegno was the only defendant; and, second, because the District Court dismissed Morgan's intervention on the ground that his mortgage "could not be acknowledged," and because this was, in effect, the judgment of a court of competent jurisdiction in a proceeding to which Morgan was a party, declaring his mortgage to be void, and he and those claiming under him were bound by that judgment. We do not think that either of these grounds is well taken.

The interest of Morgan as a mortgagee was not divested or affected by the judgment of condemnation rendered by the District Court. Day v. Micou, 18 Wall. 156; Claims of Marcuard, 20 Wall. 114. Notwithstanding the judgment of condemnation, therefore, he had a valid subsisting mortgage superior to any estate in the mortgaged property acquired by the judgment of condemnation, or which could be acquired under a sale made by virtue thereof. A decree for the foreclosure of his mortgage and a sale under such a decree would carry to the purchaser the entire estate in the mortgaged premises, provided the necessary parties were made to the proceeding to foreclose. It does not lie with the plaintiffs to object that the United States were not made defendants to Morgan's suit. The estate of the government in the property having been de

Opinion of the Court.

termined by the death of Avegno, it is now of no concern to any one, so far as it respects the title to the property, whether the government was represented in the suit of Morgan to enforce his mortgage or not. Without pointing out who were the necessary and proper parties to such a suit, the plaintiffs say that Avegno was neither a necessary nor a proper party, and that as he was the sole defendant the Circuit Court was without jurisdiction to make any decree in the suit brought by Morgan to enforce his mortgage.

One answer of the defendants to this contention of the plaintiffs is, that the proceedings and decree of the District Court, in the suit brought by the United States to enforce the forfeiture of the mortgaged premises, were void because there was no sufficient averment in the libel of a preliminary seizure, by authority of the President, of the premises against which the libel was filed, as required by the act of July 17, 1862, and that consequently the title of Avegno was never divested, and he was not only a necessary, but the only proper party to the suit of Morgan to foreclose his mortgage. We have not found it necessary to pass upon this question. Assuming that the decree of condemnation made by the District Court was valid, its effect was to vest in the United States an estate in the property condemned, for the life of Avegno, and it left in Avegno no estate or interest of any description which he could convey by deed or devise by will; but the ownership after his death was in nowise affected, except by placing it beyond his control while living. Wallach v. Van Riswick, 92 U. S. 202; Pike v. Wassell, 94 U. S. 711, and French v. Wade, 102 U. S. 132. The cases cited also declare that the joint resolution passed contemporaneously with the act of July 17, 1862, 12 Stat. 627, was intended for the benefit of the heirs of the person whose property was condemned, to enable them to take the inheritance after his death. And in the case of Pike v. Wassell, ubi supra, a bill filed during his lifetime by the children of the person whose life estate had been condemned and sold, to protect the property from the encumbrance arising from the failure of the purchaser of the life estate to pay the current taxes thereon, was sustained, the court declaring that, as there was

Opinion of the Court.

no one else to look after the interests of the succession, the children might be properly permitted to do so.

These decisions, alone considered, apparently sustain the contention of the plaintiffs, that a decree in a suit to foreclose the mortgage, to which Avegno was the sole defendant, was without the necessary parties, and was, therefore, void for want of jurisdiction in the court to render it.

The answer of the defendants to this contention of the plaintiffs is, that, as the mortgage executed by Avegno contained the pact de non alienando, he was a proper and the only neces sary party to the suit brought by Morgan to foreclose his mortgage.

The effect of the stipulation in a mortgage called the pact de non alienando, by which the mortgagor agrees not to alienate or encumber the mortgaged premises to the prejudice of the mortgage, is well settled in Louisiana. In Nathan v. Lee, 2 Martin, N. S. 32, the effect was decided to be, that "the mortgagee is not bound to pursue a third possessor, but may have the hypothecated property seized in via executina as if no change had taken place in its possessors, because any alienation or transfer made in violation of the pact de non alienando is ipso jure void as it relates to the creditor, and that this effect of the pact is not annulled by the provisions of the Civil Code in relation to mortgages, and the rules laid down for pursuing the action of mortgage."

In Stambaugh v. McCall, 4 La. Ann. 324, the court reviewed the cases on this subject, and held that where a mortgage contained the pact de non alienando, one who subsequently purchases the property from the mortgagor cannot claim to be in any better condition than his vendor, nor can he plead any exception which the latter could not, and that any alienation in violation of the pact is null as to the creditor.

These cases, and these cited in the note,* establish the rule

* Donaldson v. Maurin, 1 La. 29; Moss v. Collier, 14 La. 133; Lawrence v. Burthe. 15 La. 267; Nicolet v. Moreau, 13 La. 313; Guesnard v. Soulie, 8 La. Ann. 58; Succession of Vancourt, 11 La. Ann. 383; Smith v. Nettle, 13 La. Ann. 241; Murphy v. Jandot, 2 Rob. La. 378; New Orleans Gas Light & Banking Co. v. Allen, 4 Rob. La. 389; Dodd v. Crain, 6 Rob. La. 58.