The bill was for the foreclosure of a mortgage, and the principal defence set up is that the mortgage and the debt secured by it had been confiscated under the act of Congress of July 17th, 1862. If it had been, the complainant was not entitled to a decree of foreclosure, and his bill was properly dismissed.
We are unable to perceive why the record of the proceeding in the District Court of the United States for the District of Kansas, on which the defendant chiefly relied, does not show an effective confiscation of the debt, and its forfeiture to the United States, as well as satisfaction thereof by the mortgagors. Doubtless it is true that the court had no authority to decree confiscation of anything which had not by seizure of the marshal been brought within its jurisdiction. Seizure is essential to confer jurisdiction. But the marshal's return that he had attached the bond, mortgage, and credit, conclusively establish that a seizure was made, and that the subjects of the seizure were within the jurisdiction of the court. In this collateral proceeding the complainant is not at liberty to traverse the marshal's return. An attempt was made to traverse it, in part at least, as appears from the agreed statement of facts. It is recited therein that from June, 1860, to September, 1865, continuously, Edward S. Brown had in his possession at his home in the State of Virginia the bond and mortgage, and that during this whole period they were not in the District of Kansas. From this we are expected to infer that the marshal could not have seized them. We can, however, make no such inference against the marshal's return, without disregard of the established rule that such a return is conclusive of the facts stated by it.
The next position taken by the appellant is that, at most, only the bond and mortgage were confiscated, leaving the debt, of which the bond and mortgage were mere evidences, still due. In support of this we are referred to Pelham v. Rose, and Pelham v. Way, more recently decided. If this were so, it would not be easy to see how the appellant could make use of the mortgage to collect the debt, when his title to the mortgage no longer exists-when it has been adjudged forfeited to the United States. But Pelham v. Rose, and Pelham v. Way furnish no support to the position that the debt due from the mortgagors was not confiscated as well as the instruments which the parties had adopted as the evidences of the debt. In those cases the information was against a promissory note, and nothing else. So was the warrant or monition. The marshal returned that he had arrested the property mentioned in the warrant, and the court decreed condemnation of 'the note.' The nature of the proceeding is clearly shown in the opinion of Mr. Justice Field in Pelham v. Rose, where he said: 'In the case at bar, a visible thing, capable of physical possession, is the subject of the libel. It is the promissory note of Pelham which constitutes the res against which the proceeding is instituted, and not a credit or debt, which the note is supposed by the defendant's counsel to represent. . . . The object of the present libel is to reach the note itself. This appears at every stage of the proceedings; in the information; in the monition to the marshal; in his return; in the decree of the court, and in the sale made.' It was for this reason it was ruled in Pelham v. Way that the debt was not confiscated.