made across that line relating to the lease, to the delivery of possession of the premises, or of the corn; or the payment of the rent of the one, or the value of the other.

| lawful and a nullity, as neither the grantor nor grantees could use the federal mails to send the document there for registration, nor could they travel there for that purpose in person, or send an agent there to forward the same for registra tion. Dean v. Nelson, 10 Wall., 158 [77 U. S., XIX., 926]; Lasere v. Rochereau, 17 Wall., 437 [84 U. S., XXI., 694]; Montgomery v. U. S., 15 Wall., 395 [82 U. Š., XXI., 97].

These limitations, with one other which follows, should be carefully observed, as they furnish the key to what the court subsequently decided. None of the facts as reported are of a character to require any modification of the laws of war as expounded by the great jurists, One of the immediate and important conseto whose decisions reference has already been quences of the declaration of war is the abmade; and the court in that case very justly re- solute interruption and interdiction of all commarked, that the fact that the cotton was sub-mercial correspondence, intercourse, and dealsequently forwarded by the son to the defending between the subjects of the two countries. ant, though it may have been unlawful, cannot 1 Kent, Com., 12th ed., 66. Nothing is better affect the validity of the lease, as the lease does settled in legal decisions than the doctrine that not contain any such stipulation. war puts an end at once to all dealing and all communication of the citizens of one belligerent country with those of the other belligerent country, and that it places every individual of the respective governments, as well as the gov ernments themselves, in a state of hostility. 1 Kent, Com., 12th ed., 67; Potts v. Bell, 8T. R., 548; Woods v. Wilder, 43 N. Y., 168. Judicial decisions to that effect are very

Based upon the reported case, as thus very clearly explained, the court decided that the facts did not contravene the law of nations or the public acts of the government, even if the plantation was within the enemies' lines, and that the plaintiff upon the case reported is entitled to recover the unpaid rent and the value of the corn. Many other matters are doubtless the subject of remark in the opinion, but the prop-numerous; and the Supreme Court of Massaositions as stated embody everything which the chusetts admit that the law of nations, as jujustices of the court decided in the case. dicially declared, prohibits all intercourse beTheir decision is plain and they make two tween citizens of the two belligerents inconsistadmissions, one direct and the other necessari-ent with the state of war, and that the rule in ly implied, which are equally plain: (1) That the act of forwarding the cotton to the defend ant was unlawful. (2) That if the lease had contained any agreement that the cotton crop should be transported or the rent sent back across the line between the belligerents, or if any contract or communication had been made across that line relating to the lease, the delivery of possession of the premises or of the corn, or the payment of the rent of the one or the value of the other, the agreement or contract would have been void, as contravening the law of nations and the public acts of the United States.

Viewed in the light of these suggestions and the authorities referred to, it is clear that the registration of the act of sale of the 6th of May was unlawful, and that the title in the first case cannot be distinguished from the title in the second case, where no registration was made in the parish where the land is situated, until December 8, 1870, nearly six years subsequent to the date of the decree of condemnation. Nor does the registration in the first case give any more effect in law to the title in that case than belongs to the title in the second, as it purports to have been made May 31, 1862, nearly a month subsequent to the time when the army of the United States landed in the City of New Orleans, and put an end for ever to the temporary and unlawful occupation of that city by the military forces of the Confederate States.

Suppose that such a registry, if it had been made during the confederate occupation, would have been valid as a transaction between Confederates within the confederate lines, still it is clear that a notarial act of sale, executed before a confederate notary within the confederate lines, could not be lawfully recorded in the Parish of New Orleans at any time after the army of the United States landed there and took permanent possession of the parish. Beyond all question, such a registration was un

that regard prohibits every act of voluntary submission to the enemy, and every act or contract which tends to increase his resources, and every kind of trading or commercial intercourse, whether by transmission of money or goods, or orders for the delivery of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships. Lawrence, Wheat., 557.

Neither delivery of the subject-matter nor registry of the act of sale could lawfully be made; and whatever was unlawfully done was a nullity, leaving the title of the property as if the unlawful act had not been done.

Provision is made by law for the appointment of a register of conveyances in that parish, and it is made his duty to register all acts of transfer of immovable property passed in that city and parish, in the order in which the acts shall be delivered to him for that purpose; and it is provided that acts, whether they are passed before a notary public or otherwise, shall have no effect against third persons but from the day of being registered. R. S., La., 1870, p. 613, sec. 3159.

Conveyances of the kind must be registered in the public registry of the parish or district where the premises are situated. Sess. Acts La., 1827, p. 136; R.S., La., 1870, p. 613; Dooley v. Delaney, 6 La. Ann., 67; Code 1824, arts. 2242, 2250, 2417; Code 1870, arts. 2246-2266.

Sales of immovable property made under private signature do not have effect against the creditors of the parties nor against third persons in general only from the day such sale was registered according to law, and the actual delivery of the thing sold took place. Art. 2442.

Registration of such a conveyance in another and different district is not notice to third persons, subsequent purchasers, or attaching creditors. Pierse v. Blunt, 14 La. Ann.,345; Carraby v. Desmarre, 7 Mart. (N. S.). 661; Wells v. Baldwin, 5 Mart. (N. S.), 146; Smith v. Creditors,

21 La. Ann., 241. State authorities to that effect against the lawful government; from which it are numerous; but, inasmuch as the question is follows that a lawful registry of the property one of decisive importance, it is deemed advis- could not be made in the parish where it is sitable to refer to all the leading cases. Lee v. Dar-uated, without which, the express statute law ramon, 3 Rob. (La.), 160; Gradenigo v. Wallett, 9 Rob. (La.), 14; Crear v. Sowles, 2 La. Ann., 598; Tulane v. Levinson, 2 La. Ann., 787; Tear v. Williams, 2 La. Ann., 869; Sess. L. La., 1855, p. 345.

Third persons, with respect to a contract or judgment, are defined by the Code of 1824 to include all persons who are not parties to a judgment or contract; and the same definition is given to the same phrase by the Code of 1870, which is more immediately applicable to these cases. Code 1824, art. 3522, n.32, p. 1110; Code 1870, art. 3556, n. 32, p. 428.

Persons having no pecuniary interest in an appeal, and not aggrieved by the decree, are properly denominated third persons in respect to the appeal. Morrison v. Trudeau, 1 Mart.(N. S.),384; Williams v. Trepagnier, 4 Mart. (N. S.), 342; Lafitte v. Duncan,4 Mart. (N.S.), 622; Henderson v. Cross, 2 Rob. (La.), 391.

Those not parties to a written agreement or instrument by which their interest in the thing conveyed is sought to be affected are properly designated as third persons in the jurisprudence of that State. Brosnaham v. Turner, 16 La.,433; Wade v. Marshall, 5 La. Ann., 157; Williams v. Hagan, 2 La., 125; Code 1824, art. 3522, n. 32; McManus v. Jewett, 6 La., 537; Kittridge v. Landry, 2 Rob.(La.), 72.

of the State is that the supposed act of sale shall not have any effect against third persons.

Nor is there any difficulty in supporting the decision of the court upon the other ground assumed in the ruling, to wit: that the supposed act was but the giving in payment, as understood in the jurisprudence of that State, which is never effectual to pass the title of property in that State, whether movable or immovable, without delivery. It is of the very essence of the dation en paiement, say the Supreme Court of the State, that delivery should actually be made. Neither a sale nor a dation en paiement can avail against an attaching creditor when there has been no delivery. Schultz v. Morgan, 27 La. Ann., 616.

Pothier says that a gift in payment is an act by which a debtor gives a thing to his creditor, who is willing to receive it in the place and in payment of a sum of money or of some other thing which is due to him. Pothier, by Cushing, sec. 601, p. 365; 7 Merlin, Répertoire, verba dation en paiement, p. 55.

Giving in payment, as defined in the jurisprudence of Louisiana, is an act by which a debtor gives a thing to the creditor who is willing to receive it in payment of a sum which is due; and the decision is that it differs from the ordinary contract of sale in this: that the latter is perfect by the mere consent of the parties, even before the delivery, while the giving in payment is made only by delivery. Code 1824, arts.2625,2626. And the Code of 1870 employs the same exact words. Arts. 2655, 2656; Durnford v. Brooks, 3 Mart. (La.), 222; S. C., 3 Mart. (La.), 269.

When the act of sale of the 6th of May was first offered in evidence, it was not accompanied, by the certificate of registry, and was excluded, upon the grounds heretofore sufficient ly explained. All that need be added in support of that ruling is to say that it is fully sustained by the statute law of the State, and by many decisions of the highest court of the State, Separate examination of the second case in to which reference has already been made. this behalf is quite unnecessary, as it is not Ruled out, as it was, on that occasion, the pretended that the act of sale from the father to plaintiff offered it again, with the certificate of the sons was registered in the parish where the registry annexed; and it was again excluded, property is situated, until nearly six years subupon the further ground that the registration sequent to the pretended sale, so that if the was null and void, and inadmissible in evi-universal rule of law is to prevail, that the dence, because the vendees at the time, and be- transfer of immovable property depends upon fore and afterwards, were sojourning in the the law of the place where it is situated, then Parish of St. Helena, and were enemies of the it is clear that the supposed vendees acquired United States and, therefore, that the registra- no title to the premises. Watkins v. Holman, tion of the act of sale could not legally be made. 16 Pet., 57; Corbett v. Nutt, 10 Wall.,464 [77 U. Sufficient has already been remarked to show S., XIX.,976]; McGoon v. Scales, 9 Wall.,23 [76 that that ruling is correct, unless it be denied U.S., XIX.,545]; Lawrence, Wheat., 164, 165. that the statute law of the State, and the repeated decisions of the highest court of the State for nearly seventy years, furnish the rule of decision. Since the 24th of March, 1810, it has been law in that State that "No notarial act concerning immovable property shall have any effect against third persons until the same shall have been recorded in the office of the judge of the parish where such immovable property is situated." 3 Martin, Dig., 140, sec. 7; R. S., La., 1856, 453; R. S., La., 1870, 617.

Wheaton says that the law of the place where real property is situated governs exclusively as to the tenure, the title and the descent of real property, and the notes of the editor fully confirm the proposition.

War, in our jurisprudence, is not an absolute confiscation of the property of the enemy, but simply confers the right of confiscation. Hence it was early determined that British property found in the United States, on land, at the commencement of hostilities with Great Britain, could not be condemned as enemy property, without a legislative Act authorizing its contiscation. Brown v. U. S., 8 Cranch, 110; Lawrence, Wheat., 530.

Any discussion of the facts is unnecessary, as it is conceded that the vendor and vendees were, at the date of the supposed act of sale, resident within the confederate lines, and that they were enemies of the United States; that the grantor Discussion of that subject, however, is wholly was a member of the Confederate Congress; unnecessary, as the property in question in the and that the grantees were officers in the Con- cases before the court was confiscated under federate Army, and were engaged in rebellion | an Act of Congress, which, it is admitted, gave See 6 OTTO.

U. S., Book 24.

46

729

unquestioned jurisdiction to the District Court | the purchase of the cotton was illegal and void, which entered the decree of condemnation.

From the passage of the Act of Congress, it became the duty of the President to cause the seizure to be made; and it is not questioned that the power conferred was properly exercised, nor is it denied in argument that all the proceedings were correct, the only defense in the one case and ground of claim in the other being that the person named in the information as the guilty party was not the lawful owner of the property at the time of the seizure. Most of the grounds of that claim and defense have already been sufficiently examined and, it is believed, have been fully refuted. Only one more remains for examination, and that is, that the United States are not a third party, within the meaning of the state law and, therefore, that an act of sale never registered in the par-erty and without legal registration in the parish where the property is situated is sufficient to defeat the title of a purchaser derived under the confiscation proceedings and the decree of condemnation.

1. Parties, being public enemies in hostile territory, are competent to transfer or to accept the title to real property situated within the federal lines. 2. The Louisiana Registry Act was not intended to protect the United States in the exercise of its power of confiscation, from the consequences of previous unrecorded sales of the alleged offender. If the alleged offender possessed no estate in the premises at the time of their seizure under the Confiscation Acts, nothing passed to the United States by the decree, or to a purchaser under it.

[No. 209.]

Argued Feb. 7, 1878. Decided Mar. 25, 1878.

IN ERROR to the Supreme Court of the State

of Louisiana.

The plaintiff in error, Burbank, brought suit in the Fifth District Court of New Orleans, against the two Conrads, praying for a decree of partition, and order for an inventory, and other interlocutory orders required in such an action. The State District Court decreed a partition of licitation. The Conrads appealed to the Supreme Court of Louisiana, where this judgment was reversed, and it was decreed that plaintiff's demand be rejected, and that defendants have a valid title to the property described in the petition, and that they be put in possession thereof. The case further appears in the opinion. Messrs. J. Q. A. Fellowes and Durant & Hornor, for plaintiff in error.

Messrs. C. M. Conrad, C. A. Conrad and L. L. Conrad, for defendants in error.

Mr. Justice Field delivered the opinion of

the court:

United States. The act of sale was not placed on record in the City of New Orleans until 1870. The good faith of the parties in the transaction is not questioned, nor is the sufficiency of the consideration. But it is contended that the parties, being public enemies in hostile territory, were incompetent at the time to transfer or to accept the title to real property situated within the federal lines. And if this position should not be sustained, it is further contended that the act of sale not having been recorded in the City of New Orleans until after the condemnation of the property by the District Court and its sale by the marshal, the plaintiff, as purchaser, took the title unaffected by the transaction; in other words, that his position is that of a third party buying upon the faith of the title standing in the name of the elder Conrad upon the public records.

We have recently had occasion, in Conrad v. Waples [ante, 721], to consider the first of these questions, and it will be unnecessary here to do more than refer to our opinion in that case. And the second question requires only a brief notice. The object of requiring a public record of in

struments affecting the title to real property is to protect third parties dealing with the vendor, by imparting notice to them of any previous sale or hypothecation of the property, and to protect the purchaser against any subsequent attempted disposition of it. In Louisiana, the conveyance is valid between the parties without registration, and passes the title. The only consequence of a failure of the purchaser to place his conveyance on the records of the parish where the property is situated is that he is thereby subjected to the risk of losing the property if it be again sold or hypothecated by his vendor to an innocent third party, or if it be seized and sold by a creditor of his vendor for the latter's debts. The second purchaser from the vendor and the bidder at the judicial sale would, in that case, hold the property. The United States never stood in the position of the second purchaser of the property sold by the elder Conrad. They were not purchasers at any sale of his property. They had caused his estate in the land, whatever that was, to be seized and condemned. By the decree of condemnation, that estate vested in them for the period of his life. His estate for that period was then their property. The statute declares that the property condemned "Shall become the property of the United States, and may be disposed of as the court shall decree." It was the property of the United States, therefore, which was sold and conveyed at the marshal's sale. The United States acquired by the decree, for the life of the offender, only the estate which at the time of the seizure he actually possessed; not what he may have appeared from the public records to possess, by reason of the omission of his vendees to record the act of sale to them; and that estate, whatever it was, for that period passed by the marshal's sale and deed; nothing more and The defendants assert title to the whole prop-nothing less. The Registry Act was not inerty by a sale by public act, made to them by their father, the said Charles M. Conrad, before the recorder and ex officio notary public of the Parish of St. Mary, in Louisiana, on the 3d of June, 1862. This parish was then within the confederate lines; and the Conrads, father and sons, were engaged in the rebellion against the

This is a suit for a partition of certain real property situated in the City of New Orleans in the State of Louisiana. The plaintiff alleges that he is the owner of an undivided half of the premises; that the defendants are the owners of the other undivided half; and that from the nat ure of the property it cannot be conveniently divided in kind. He therefore asks a partition by licitation; that is, by a sale of the premises and a division of the proceeds.

The plaintiff asserts title to an undivided half by a deed of the marshal of the United States, executed to him upon a sale under a decree of the District Court, condemning and forfeiting the property to the United States, in proceedings taken against it as the property of Charles M. Conrad, under the Confiscation Act of July 17, 1862, 12 Stat. at L., 589.

tended to protect the United States in the exercise of their power of confiscation from the consequences of previous unrecorded sales of the alleged offender. It was in the power of Congress to provide for the confiscation of the entire property, as being within the enemy's country, without limiting it to the estate remaining

in the offender; but, not having done so, the court cannot enlarge the operation of the string ent provisions of the statute. The plaintiff had notice of the character and legal effect of the decree of condemnation when he purchased, and is therefore presumed to have known that if the alleged offender possessed no estate in the premises at the time of their seizure, nothing passed to the United States by the decree, or to him by his purchase.

We see no error in the ruling of the Supreme Court of the State of Louisiana, and its judgment is affirmed.

Court of California.

The cases originate in two actions of replevin brought by Page, who died during the progress of the litigation, and is now represented by Atherton, his executor, and the plaintiff in these writs. The plaintiff below obtained possession of the hay, which was the subject of the writ of replevin; but, on trial before a jury, they found he was not entitled to the possession, and judgments for the value of the hay were rendered against him. These judgments were affirmed on appeal to the Supreme Court of the State, and are now brought before us for review on questions which relate to the rights acquired in

*Head notes by Mr. Justice MILLER.

The history of the title to that ranch is given in the report of Frisbie v. Whitney, 9 Wall., 187 [76 U. S., XIX., 668). The claim of Vallejo to the confirmation of the grant was finally decided against him in this court, March 22, 1862. By virtue of the Act of Congress the land embraced within his claim became public land of the United States whenever it was finally decided to be invalid. See, sec. 13, Act of March 3, 1851, 9 Stat. at L., 633.

No public survey had been extended over these lands at that time, and the whole of the Soscol ranch was held in possession, and had been for years, under the Mexican patent to Vallejo, and by tenants or purchasers under his title.

Nevertheless, a large number of persons who had previously no interest in or claim to or possession of any part of this land invaded it by force, tore down the fences, dispossessed those who occupied it, and built on and cultivated parts of it, under pretense of establishing a right of preemption to the several parts which they so seized. The general character of this movement is well described in Frisbie v. Whit ney, already cited.

The defendants in this case, though taking no part in the night invasion mentioned in that case, did, during the spring and summer of 1862 and 1863, enter upon the lands in the possession of Page, land which in every instance was enclosed within fences, and which was in actual cultivation. And this entry was without asking the consent, or having in any way the permission, of those in possession, but by forcibly driving them out. The hay, which is the subject of the controversy, was cut from meadows or grounds set in grass by plaintiff. These facts are stated, or evidence from which the jury had a right to infer them, in a case made by the parties, on which the Supreme Court finally decided it.

12 Stat. at L., 808, enacted that all settlers on But Congress, on the 3d day of March, 1863, land held by them to the extent of their actual the land claiming under Vallejo might enter the possession at $1.25 per acre, and have a patent for the same as soon as the surveys were extended over the ranch. So that, when the hay in controversy was cut, the defendants knew, or should have known, that they were mere trespassers on the lands of Page, and had no right to the hay.

It is, however, to be considered that there is the doctrine that a person having the legal title to land, but out of possession, cannot maintain the action of replevin for hay or timber cut on the land. This general doctrine has been modi fied both by statute and by judicial decision in the several States, until it is not easy to say exactly how much of it is left in any one of the

NOTE.-Preemption rights. See note to U. S. v. States. In the case before us, the court, on the Fitzgerald, 40 U. S. (15 Pet.), 407.