ERROR to the Circuit Court for the Southern District of Georgia. The case was thus:
On the 2d December, 1862, the executors of the will of C. J. McDonald, being fully authorized, sold and conveyed to the Confederate government certain land in Bibb County, Georgia, to be used (through the agency of certain laboratories built upon it for the preparation of ammunition) in promoting the rebellion against the government of the United States. This land remained the property of the Confederate government, and was used in aid of the rebellion, until the final surrender of the Confederate armies, when it was taken possession of and held by the military forces of the United States. On the 17th July, 1866, while it remained so in the possession of the military forces, one Titus filed with the district attorney an information against it under the act of August 6th, 1861, known as the Confiscation Act. This act provides, in substance, that if, during the (then) present or any future insurrection against the government of the United States, any person should, after the prescribed proclamation, purchase or acquire, sell or give, any property, of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed, in aiding or abetting or promoting such insurrection; or if any person, being the owner of such property, should knowingly use or employ, or consent to the use or employment of, the same for such purpose, all such property should be lawful subject of prize and capture wherever found, and the President was required to cause it to be seized, confiscated, and condemned. The proceedings for condemnation were to be had in the courts of the United States having jurisdiction of the amount, or in admiralty in any district in which such 'prizes and capture' might be seized, or into which they might be taken and proceedings first instituted. The Attorney-General, or the district attorney of the United States for the district in which the property might at the time be, was authorized to institute the proceedings of condemnation, and, in such case, they were to be wholly for the benefit of the United States; or any person might file an information with such attorney, and then the proceedings were to be for the use of an informer and the United States in equal parts.
The district attorney, in pursuance of the information filed by Titus, as already mentioned, and prosecuting 'for the United States and informant,' on the 15th January, 1867, commenced proceedings in the District Court of the Southern District of Georgia for the condemnation and sale of the property, alleging the conveyance to and use by the Confederate government, and averring that, by the surrender of the Confederate armies, it had become the property of the United States. No person appeared in the action to defend, or offered to claim the property, and, on the 26th February, the formal judgment of forfeiture and sale under the act was entered. A warrant of sale was issued on the 25th March, 1867, to which the marshal, on the 21st November, returned that, on the 8th May, he had postponed the sale upon the order of the district attorney. On the 17th June Titus filed a petition in the cause, asking to be made a party, and for a judgment, asserting his right to one-half the proceeds of the sale and directing its payment to him. The prayer of this petition was granted on the 8th April, 1868, and, on the 20th January, 1870, the marshal made a second return to the warrant of sale, to the effect that he had sold the property for $19,542.75, and had paid the purchase-money into the registry of the court. On the 19th April following, the Commissioner of the Freedmen's Bureau asked for and obtained an order for the payment to him of one-half the net proceeds of the sale.
The reader will perhaps recall that the act establishing the Freedmen's Bureau, passed March 3d, 1865, provides—
'That the commissioner, under the direction of the President, shall have authority to set apart for the use of loyal refugees and freedmen such tracts of land within the insurrectionary States as shall have been abandoned or to which the United States shall have acquired title by confiscation, or sale, or otherwise, and to every male citizen, whether refugee or freedman as aforesaid, there shall be assigned not more than forty acres of such land,' &c.
After providing that he shall be protected in the occupancy thereof, at an annual rental for the period of three years, the act concludes thus: