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abandonment was not devested out of the origNEEL'S EX'R et al. v. NOLAND'S HEIRS. | inal owner, who might obtain its restoration.
[Ed. Note. For other cases, see War, Cent. (Court of Appeals of Kentucky. Oct. 28, 1915.) Dig. S$ 105, 106, 108; Dec. Dig. Om 21.] 1. TRUSTS Omw 63 — RESULTING TRUST – PAY- 6. LIFE ESTATES On 23–REINVESTMENT-PRE
MENT OF CONSIDERATION FOR CONVEYANCE SUMPTION.
Under a deed of a farm, reciting the husKy. St. § 2353, relating to resulting trusts, band's payment of the purchase price, made to abolishes the old doctrine of resulting trusts, ex- the wife and her heirs for the separate use of cept in the two expressed cases where title is herself and any children thereafter born of the taken in the name of the nominal purchaser marriage, and enabling her, with the husband's without the consent of the real purchaser, and written consent, to sell any part of the land, where the grantee, in violation of some trust, and to reinvest any part of the proceeds, as buys the land with the money or property of she might deem expedient, which, if reinvested, another.
was to be held for the same purposes, and on [Ed. Note.-For other cases, see Trusts, Cent. her survival of her husband, giving her such Dig. $ 90; Dec. Dig. Omw 63.]
privilege without his consent, the proceeds to be
reinvested for such purposes, and on her de2. TRUSTS O89_RESULTING TRUST-WEIGHT cease the property, or its proceeds if reinvested, AND SUFFICIENCY OF EVIDENCE.
to go to the husband or his heirs on failure of To establish a resulting trust by parol ey issue, and in fee simple to any issue then lividence as against the holder of the legal title to ing, no presumption would be indulged, in the property, the proof of all the essential facts absence of evidence thereof, that money from and circumstances must be clear, convincing, the sale of a part during the husband's lifetime and satisfactory, and of such a character as to was received or spent by the wife, or reinvested disclose the exact rights and relations of the under the clause permitting, but not requiring, parties and take the matter out of the realm reinvestment during the husband's lifetime. of conjecture and presumption, especially after [Ed. Note. For other cases, see Life Estates, a long lapse of time.
Cent. Dig. $$ 21, 42-45; Dec. Dig. Om 23.] [Ed. Note. For other cases, see Trusts, Cent. 7. LIFE ESTATES Ow23—CONDITION OF DEED Dig. $$ 134-137; Dec. Dig. 89.]
-EXPENDITURE ON IMPROVEMENTS. 3. TRUSTS O89_RESULTING TRUST-SUFFI
Under such deed, the wife's expenditure of CIENCY OF EVIDENCE.
the amount received from a sale of part of the Evidence, in an action by the executor and land, after her husband's death, in making perdevisees of a decedent to establish a resulting manent improvements on the farm, to that extrust in a farm, on the theory that certain bales tent satisfied the terms of the deed as to reinof cotton originally belonged to the decedent's
vestment. first husband; that his title thereto was devest
[Ed. Note.-For other cases, see Life Estates, ed and placed in the federal military authorities Cent. Dig. SS 21, 42–45; Dec. Dig. 23.] by its seizure, that such authorities then gave 8. LIFE ESTATES Om 17-IMPROVEMENTS-REit to decedent; that she sold it and turned over COVERY AGAINST REMAINDERMEN. the proceeds of sale to her husband for invest- A life tenant is not bound to make any ment; and that he, in violation of the trust and permanent improvements on the estate; and, without her consent, bought the farm and took if he makes them, it will be presumed that they the deed in her name for life only, with a re- are for his own benefit, and he cannot recover version to his heirs-held not of that clear, full, anything therefor from the remaindermen or reand satisfactory character requisite to establish versioners. such a trust.
[Ed. Note.-For other cases, see Life Estates, [Ed. Note. For other cases, see Trusts, Cent. Cent. Dig. 88 37, 38, 42; Dec. Dig. Om 17.] Dig. $8 134-137; Dec. Dig. Om 89.]
Appeal from Circuit Court, Shelby County. 4. HUSBAND AND WIFE O11-WIFE'S PROPERTY — HUSBAND'S REDUCTION TO Posses
Action by Pearce Noland's Heirs against SION.
Bettie Neel's Executor and others. JudgUnder the law in Kentucky in 1864 prior ment for plaintiffs, and defendants appeal to the Married Women's Act of 1894 (Laws 1894, c. 76), the husband, by virtue of his mari- and plaintiffs take a cross-appeal. Affirmed tal rights, might reduce his wife's general estate on the original and the cross-appeals. to possession and thereby make it his own, so that money received by the wife from the sale
O'Rear & Williams, of Frankfort, for apof her cotton and her other money, used by the pellants. Hudson & McKay, of Vicks! urg, husband in the purchase of a farm taken in Miss., and Willis, Todd & Bond, of Shelbyher name, with reversion to his heirs, was re-ville, for appellees. duced to possession.
[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. SS 39, 40, 47–57; Dec. Dig. MILLER, C. J. In this action the appelOw11.]
lants, who are the executors and devisees of 5. WARO21-ENEMY PROPERTY-STATUTES. Bettie Neel (formerly Mary Elizabeth No
No act of the military forces, or of any land), are seeking to establish a resulting officer thereof, in the Civil War could, under the trust, in their favor, to a farm of 200 acres law, devest a citizen of his title to cotton, since private property on land not used in aiá in Shelby county. The facts upon which the of the war is not subject to confiscation by the claim is based are wide in range, and neburules of international law, which rule was rec- lous in character. Substantially, they are as ognized by the Captured Property Act (Act
follows: Cong. March 3, 1863, c. 120 (12 Stat. 820]), declaring that the title to any property except In May, 1858, Pearce Noland, a prosperous that used in actual hostilities could not be young planter, living near Vicksburg, in devested in the insurgent states unless by judg- Warren county, Miss., married Mary E. Mcment after due legal proceedings, so that the title to the proceeds of cotton coming into pos- Gaughey, of Shelby county, Ky. They imsession of the federal government by capture or mediately went to live upon his Mississippi Ky.)
NEEL'S EX'R V. NOLAND'S HEIRS
plantation, and continued to reside there un- livered to the Nolands was a part of 114 til late in October, 1863. Upon the surrender bales taken from the plantation of J. & M. of Vicksburg on July 4, 1863, to the federal Britton. The 69 bales were shipped to Yeatforces under Gen. Grant, the surrounding man, United States treasury agent at Memcountry was overrun and largely devastated phis, by C. A, Montross, treasury agent at by the troops. By general order No. 50, is- Vicksburg, per the steamer J. S. Pringle, on sued by Gen, Grant at Vicksburg on August October 24, 1863, before Pearce Noland's 1, 1863, it was provided that persons having mark ("P. N.") could be put on the bales. cotton or other produce not required by the Shortly after the 69 bales were received by army would be allowed to bring the same to Yeatman at Memphis, an order was presented any military post within the state of Missis- to him by the agent of the Nolands, signed by sippi, and abandon it to the agent of the Gen. Grant, for the 69 bales of the cotton Treasury Department at said post, to be dis- that had been shipped from Vicksburg. At posed of in accordance with such regulations first Yeatman declined to surrender the cotas the Secretary of the Treasury might es- ton; but the agent subsequently returned, tablish. Pearce Noland had 69 bales of cot- accompanied by Brigadier General James C. ton on his plantation, near the Big Black Veatch, the commander of the post at Membridge, and within shipping distance of the phis, who insisted on the delivery of the cotrailroad running out of Vicksburg, eastward-ton pursuant to Gen. Grant's order; and, ly. This railroad had been taken over by Gen. Veatch having indorsed his name upon the federal government, and was operated the order, Yeatman surrendered the cotton. as a United States military railroad. Pearce According to Yeatman, Mrs. Noland did not Noland was then in delicate health, although claim this cotton as her own, but said that it is not made clearly to appear to what ex- 69 bales of her cotton had been taken, and tent he was disabled from attending to busi- that Gen. Grant had given her an order for ness. It is claimed by the appellants that the delivery of the same number of bales, out Pearce Noland's cotton was seized by the of some other lot. The remaining 45 bales of federal troops and carried to Vicksburg. The the 114 bales were shipped to Cincinnati, and testimony, however, as to the seizure is sold for 7814 cents per pound. The Nolands quite vague and indefinite. The first bit of departed with their 69 bales, and presumareliable evidence relating to the story of bly sold it for about the same price, although Pearce Noland's 69 bales of cotton is found there is nothing in the record to show precisein the following receipt found in the archives ly what they received for it. Pierce Noland of the War Department:
and his wife thereupon returned to Shelby “Received, Vicksburg, Mississippi, October county, and spent the following winter of 8th, 1863, of Mr. P. Noland, three hundred and 1863-64 with Mrs. Noland's mother. forty-five dollars, being freight on 69 bales cotton transported to Vicksburg by United States
On January 23, 1864, Pearce Noland military railroad.
bought the farm of 303 acres (of which 200 "J. D. Bingham,
acres are now in controversy), from Field"Lieut. Col. and Chief Q. M. Dept. Tenn."
ing Neel and J. A. Glass, for $21,249.80. Of It will be observed that this receipt does this sum he paid $14,000 in cash, and gave not indicate that the 69 bales of cotton in his four notes for $1,812.45 each, for the requestion had been seized by the federal mainder of the purchase money. The deed troops. On the contrary, the fact that Pearce recited that Pearce Noland had made the Noland paid $345 freight thereon to Vicks- cash payment of $14,000, and had executed burg would raise the presumption that he his four notes for the deferred payments. was the shipper of his cotton. However that The deed contained the following clauses: may be, the Nolands experienced quite a good "To have and to hold the above two described deal of trouble in getting their 69 bales tracts of land, together with all and singular
the appurtenances thereunto belonging unto the shipped out of Vicksburg.
said Mary E. Noland, her heirs and assigns forIt is contended by the appellants that ever, for and to the sole and separate use and Pearce Noland, being a southern sympathizer, benefit of the said Mary E. Noland and such could accomplish nothing toward liberating children as may hereafter be born unto her by
her husband, Pearce Noland, and with the conhis cotton, and that Mrs. Noland, through sent of her said husband given in writing the her personal efforts with Gens. Grant and Lo said Mary E. Noland shall have the right and gan, finally succeeded in getting 69 bales of privilege to sell, transfer, exchange or dispose of cotton turned over to her, as appears from tioned, for such price and to such person or
all or any part of the land hereinbefore menthe following permit:
persons as she may desire, and to reinvest all or "Headquarters, Commander of the Post.
any portion of the proceeds or not, as she may "Vicksburg, Miss., October 12, 1863.
deem most expedient, but if reinvested to be
held by her as aforesaid ; and, for the purpose "Mrs. P. Noland has permission to ship 69 aforesaid, and in case she should survive her bales of cotton marked (P. N.) to Memphis, said husband, she shall have such rights and Tennessee.
privileges without his consent so given, the pro"By order of Maj. Gen. John A. Logan.
ceeds in this event shall be reinvested for the “Jno. S. Hoover, Lieut. and A. D. C."
purposes hereinbefore mentioned.
"This indenture further witnesseth: That Evidently Pearce Noland's 69 bales became intermingled with other cotton beyond iden- upon the decease of the said Mary E. Noland,
in tification, and that the 69 bales of cotton de proceeds thereof if reinvested shall go to the said Pearce Noland or his heirs, in the event land's death. The remainder of his testimony there is no issue of the body of the said Mary is immaterial. E. Noland by her husband, Pearce Noland, living at the time of her death, but if there be
The third and last witness is Miss Emma such issue then living then the same shall go in McGaughey, a niece of Mrs. Neel, who frefee simple to such."
quently saw her aunt while she lived with Pearce Noland occupied the Kentucky the witness' grandmother after her return to farm, as a home, from 1864 until his death Kentucky in the winter of 1863-64. The in 1876. Under the power thus given her, witness was then less than 16 years of age. Mrs. Noland sold 103 acres of the farm to Her testimony consists of a narrative of famReuben Scobee in February, 1875, for $4,- ily lore, and is largely concerned with the 120, and Pearce Noland signed the deed in war conditions of the South, which she acindication of his consent thereto. Pearce No-quired from hearsay. She says her parents land died in 1876, leaving no issue, and his and other relatives told her that Pearce Nowidow, Mary E., married Fielding Neel in land's cotton had been confiscated; that Mr. the winter of 1878. She was ever after. and Mrs. Noland and the witness father had wards known as "Bettie Neel." Fielding obtained an order for the cotton and transNeel died on September 21, 1881; and his portation for it and the family to Memphis widow, Bettie Neel, died on October 8, 1913, in 1863; and that both Mr. and Mrs. Noland leaving a will by which she devised the Shel- and the witness' father went to Memphis, by county farm to her nieces and nephews, sold the cotton, and collected the proceeds. who are the appellants.
Miss McGaughey is the only witness by whom This action was instituted by the heirs at appellants attempted to prove that Pearce law of Pearce Noland against the devisees Noland agreed to invest the cotton money in under Bettie Neel's will, to recover the farm the farm and take the title to his wife; and in question. The devisees claim that, Bettie her testimony is found in the following quesNeel having furnished the consideration, and
tions and answers: the deed having been taken in the form it tween Mr. P. Noland and his wife, Bettie Noland,
“Q. 40. What was the agreement, if any, bewas taken, without her consent, a trust there-concerning that investment? State what they by resulted to her, whereby she held and each said to the other so far as you heard it, or owned the farm in question; and, the circuit heard Mr. P. Noland recite it? Å. I know of no court having decided against them they ap- ous times, 'as to the safest investment. My aunt
agreement, but heard them discussing, at varipeal.
seemed to prefer investing in a farm, and they The appellants introduced only three wit- looked at several and decided to buy, which he
did. nesses to sustain their claim.
Q. 41. Relate the circumstances of the
investment by Mr. P. Noland in the farm bought John T. Ballard testified that he wrote the from Neel and Glass, in Shelby county, Ky., deed in 1864, in the presence of Pearce No- January 7, 1864, so far as you heard Mr. P. land, the grantee, and Neel and Glass, the Noland state them to his wife, Bettie Noland, or grantors therein; that Pearce Noland direct- presence and hearing. A. I was at my grand
as she may have stated them in Mr. P. Noland's ed him to add the clause which created a mother's, in the living room with my parents, remainder in the heirs of Pearce Noland upon grandmother, and my aunt Mrs. Noland. Mr. the failure of issue of his marriage with that he had bought the farm from Neel and
Noland returned from town and told his wife Mary E. Noland; that Pearce Noland told Glass for her, and had Mr. John Ballard write him he had paid the $14,000 in cash; and the deed in her name, and record it." that when the witness suggested to Pearce She further testified that her aunt did not Noland that he had already given the farm to know, at the time of the purchase of the his wife to do with as she pleased, and to sell Shelby county farm, that the title had been and to reinvest the proceeds as she pleased, taken to her for life only, with remainder to Pearce Noland answered that he wanted the the heirs of Pearce Noland upon failure of reversionary clause added to the deed, and issue. But it should not be overlooked that it was done.
practically all of her testimony, with the exBallard further testified that James Mc-ception of that part which related to the Gaughey, a brother of Bettie Neel, was the statement of Pearce Noland to his wife at first to notify her, in 1881, after the death of the time he bought the farm, is hearsay given her second husband, Fielding Neel, of the re- 50 years afterwards. Furthermore, the stateversionary clause in the deed. It is claimed ment attributed to Pearce Noland that he' she did not know of it at the time the deed had bought the farm for his wife, and had was made, or at any time before 1881. But taken the deed in her name, was not inconBallard's testimony upon this point is but a sistent with the deed as it was written, since repetition of what James McGaughey told it did convey the land to her upon the reahim.
sonable conditions therein stated. John R. Deering, the executor and principal It appears that Pearce Noland subsequentdevisee under the will of Bettie Neel, iden- ly became insolvent through endorsements for tified a diary which Pearce Noland had kept, his brothers; and, at the time the Kentucky in which he spoke of the farm in controversy farm was bought, his Mississippi plantation as "my farm," and further testified that Mrs. was, by reason of war conditions, an incumNeel spent exceeding $850 for improvements brance rather than an asset. And there is
NEEL'S EX'R v. NOLAND'S HEIRS
Mrs. Noland certainly knew the provisions and wife, or father and son, the evidence must of the deed which she, at first, claimed was be positive and free from all ambiguity; and a mistake, as early as 1881, 31 years before loose and general expressions of intention, in
common conversation, acknowledging a general her death, she never took any action towards obligation, etc., will not be sufficient.” correcting the mistake, or asserting her al
See Devlin on Real Estate (3d Ed.) vol. 2, leged title.
$ 1183, to the same effect. The argument of counsel for appellants
In the late case of May v. May, 161 Ky. rests upon the following propositions: (1)
114, 170 S. W. 537, the question was considThat the 69 bales of cotton originally be- ered at length. In that case one Allen Leslie, longed to Pearce Noland; (2) that his title in 1847, conveyed a tract of land to his sonthereto was devested, and placed in the fed-in-law Thomas P. May, the deed reciting the eral military authorities by the seizure of the consideration to be the love and affection cotton; (3) that Gen. Grant then gave the which the grantor had for his daughter, the cotton to Mrs. Noland; (4) that she sold it wife of May, and $1,100 in cash paid by and turned over the proceeds of sale to her Thomas P. May. The deed contained no rehusband for investment; and (5) that he, in strictions upon the title, but certain grandviolation of the trust, and without her con-children of Thomas P. May, being dissatisfied sent, bought the Shelby county farm and took with the provision made for them by their the deed in her name, for life only, instead of grandfather's will, brought an action, claimin fee.
ing a resulting trust for the benefit of the  Section 2353 of the Kentucky Statutes children and heirs at law of their grandunder which appellants claim a resulting mother, who was the wife of Thomas P. May. trust, reads as follows:
The opinion called attention to the fact that “When a deed shall be made to one person, it had not been shown that the grandmother and the consideration shall be paid by another, no use or trust shall result in favor of the had ever claimed the land was held in trust latter, but this shall not extend to any case in for her; and there, as here, the deed truly which the grantee shall have taken a deed in his recited that the cash payment had been made own name without the consent of the person
Allen Leslie lived 30 years paying the consideration, or where the grantee, by the husband. in violation of some trust, shall have purchased after making the deed; in the case at bar the lands deeded with the effects of another per- Pearce Noland lived twelve years after the son."
deed was made to the Shelby county farm, This statute abolishes the old equitable doc- and Mrs. Noland lived forty-nine years theretrine of resulting trusts except in two cases: after. After conceding that a resulting trust (1) Where the title is taken in the name of might be established by parol proof, and that the nominal purchaser without the consent of numerous cases so holding appear in the the real purchaser; and (2) where the gran- books, the court, in the May Case, quoted tee, in violation of some trust, buys the land with approval the following passage from the with the money or property of another. Fou- opinion in Nelson v. Nelson, 96 S. W. 794, shee v. Foushee, 163 Ky. 524, 173 S. W. 1115. 29 Ky. Law Rep. 885:  In view of the well-established doc
"But these were cases in which it was clearly trine in this jurisdiction upon the subject of made to appear, either that the deed to the land resulting trusts, we hardly deem it necessary conveyed was received by the grantee under an to again review the authorities, at length. It agreement with the grantor, or one paying the will be sufficient to point out the general rule, third person, or where the grantee in violation
consideration, to hold the title in trust for a and to refer merely to the leading cases upon of a trust purchased the land with the means the subject, which are uniform in their scope of another. There are yet other cases in which, and application. In 39 Cyc. 166, the rule is upon parol evidence of a secret trust in behalf
. . stated, as follows:
of an insolvent debtor, created by his act in con
veying, or causing to be conveyed, to another "In order to establish a resulting trust by property which, but for such conveyance, would parol evidence, as against the holder of the le- be liable for his debts, the courts, at the suit of gal title to property, the proof of all the es- creditors, have declared the conveyance a fraud sential facts and circumstances must, as a gen- upon them, and subjected the property to the eral rule, be clear, full, convincing, and satisfactory, and of such a character as to disclose payment of his debts. the exact rights and relations of the parties, and In the May Case, the court also quoted take the matter out of the realm of conjecture from Devlin on Real Estate (3d Ed.) § 1183, or presumption, especially after a long lapse of
as follows: time; and where the evidence is uncertain, conflicting, doubtful, or unsatisfactory, or is capa
“As it is sought, in attempting to establish a ble of reasonable explanation on a theory other resulting trust, to raise an equity superior to the than the existence of a resulting trust, no trust deed, and thus give it an effect not apparent upwill be held to be established. The language on its face, the proof that one other than the used by the courts, however, in stating this rule grantee is beneficially interested must be clear has not been by any means uniform; but it has and convincing. We recognize the doctrine to been variously stated that the proof must be the fullest extent, and such is the uniform holdclear and unequivocal, most convincing and ir- ing in all the cases that, where a right or title refragable, clear and 'unquestionable, clear and is claimed against a writing, in this or any other undoubted, or so clear, strong, and unequivocal class of cases, where it is permitted at all, it as to banish every reasonable doubt of the ex- must be sustained by proof of the most convincistence of such trust; or if the evidence is whol-ing and irrefragable character. The courts have ly by parol, that it should be received with great been deeply impressed with the danger of this caution. Thus to raise a trust between mem- kind of proof, as tending to perjury and insebers of the same family, as between þusband curity of paper titles. Kent and other eminent
judges regret that the doctrine was ever intro-St. Rep. 430; Mitchell v. Violett, 104 Ky. duced, as it opens a wide door to frauds and 77, 47 S. W. 195, 20 Ky. Law Rep. 378; Philperjuries, which the statute was intended to close. * * This rule is based upon the lips v. Farley, 112 Ky. 837, 66 S. W. 1006, soundest legal principles, for the parol proof 23 Ky. Law Rep. 2201; Helm v. Board, 114 must, of necessity, be the testimony of witnesses Ky. 289, 70 S. W. 679, 24 Ky. Law Rep. 1037; as to what the parties have said or verbally Bennett v. Bennett, 134 Ky. 414, 120 S. W. agreed to-a class of testimony notoriously weak --and the fact to be overturned is a writing, the 372; Fowler v. Fowler, 138 Ky. 326, 127 S. best evidence as to where the legal title is.” W. 1014.
This doctrine is fully established in this There is no proof that the cotton money jurisdiction by a long line of decisions. Snel- ever became the property of Mrs. Noland, ling v. Utterback, 1 Bibb, 609, 4 Am. Dec. but if it should be so treated, there can be 661; Northcutt v. Hogan, 4 Ky. Law Rep. no doubt that it was her general estate, or 364; Pool v. Thomas, 8 S. W. 198, 10 Ky. that Pearce Noland reduced it to possession, Law Rep. 92; Nelson v. Nelson, 96 S. W. 794, thereby making it his own property absolute29 Ky. Law Rep. 885; Couch v. Sizemore, ly. And the claim that Mrs. Noland's patri106 S. W. 801, 32 Ky. Law Rep. 641; Roche mony of $3,500 was used by her husband in v. George's Ex'r, 93 Ky. 609, 20 S. W. 1039, the purchase of the farm, if true, stands 14 Ky. Law Rep. 584; Helm's Ex'r v. Rogers, upon precisely the same footing. 81 Ky. 568; Smick's Adm'r v. Beswick's The contention that Pearce Noland did not Adm'r, 113 Ky. 439, 68 S. W. 439, 24 Ky. Law reduce his wife's property to possession, and Rep. 276; Taylor v. Fox's Ex'r, 162 Ky. 804, that he held it for her in trust, is not sus173 S. W. 154; Foushee v. Foushee, 163 Ky. tained by any competent evidence. 524, 173 S. W. 1115.
 3. But if we should be mistaken in  Under this explicit rule, it is clear that this last position, and it should be granted the evidence in this case fails signally to that the federal troops seized Pearce Noland's establish the resulting trust claimed by ap- cotton, and that Gen. Grant presented it to pellants. It neither clearly nor satisfactorily Mrs. Noland, precisely as she claimed, and appears that the cotton was seized by the that Pearce Noland never reduced it to posUnited States military authorities, or that session, we still are confronted by the propothe proceeds of the sale ever belonged to Mrs. sition, which cannot be successfully controNoland, or were ever in her possession, or verted, that no act of the military forces of that the deed was drawn contrary to her the United States, or any officer thereof, wishes. To establish a trust in behalf of Mrs. could, under the law, devest Pearce Noland Noland under these facts, when taken in con- of his title to the cotton in question. In 40 nection with the long period of 50 years dur- Cyc. 332, the rule is stated as follows: ing which this deed has stood unquestioned
"Private property on land not being used in and unattacked, would be stretching the aid of the war is not subject to confiscation by doctrine of resulting trust far beyond any the rules of international law. Private properinstance reported in the books. To satisfy ty may be seized, however, when needed in the the rule, the proof offered to establish the clusion of peace it should be restored or com
course of military operations; but upon the contrust claimed must be clear, full, convincing, pensation made. and satisfactory. It has none of these es "A belligerent nation may, by a valid municisential qualities.
pal law, authorize the confiscation of private  2. But, if we should be mistaken in property of the enemy.
"In the United States, since the adoption of this conclusion, and it should be assumed the federal Constitution, the sole power of authat the evidence did clearly, fully, and satis- thorizing confiscation of the enemy's property factorily show that Pearce Noland's prop-had been vested in Congress as an incident to
its war powers. erty had been seized by the military authori
"During the Civil War several important conties as claimed, and that the cotton had been fiscation acts were passed by Congress. presented to Mrs. Noland by Gen. Grant, and Provision was also made by special legislation that Mrs. Noland thereby became the owner during the Civil War for the holding of captured
and abandoned property." of the property, it is nevertheless true that Pearce Noland reduced this property to pos
Accordingly, it was provided by the Abansession while living in Kentucky, in 1864, and doned and Captured Property Act of Conhe thereby became the absolute owner of it, gress, approved March 3, 1863 (12 Stat. at L. under the law as it then stood. This trans- 820), that the title to any property, except action occurred about 30 years before the that used in actual hostilities, could not be passage of the Married Woman's Act of 1894, devested in the insurgent states, unless in which freed the wife's property from many pursuance of a judgment rendered after due of the common-law rights of the husband. legal proceedings. By that act, the federal Under the law as it stood in 1864, the hus-government constituted itself the trustee for band, by virtue of his marital rights, might those who were entitled to the proceeds of reduce his wife's general estate to possession, abandoned and captured property, with the and thereby make it his own. Williams v. exception above stated. The federal governCoff'man, 101 S. W. 919, 31 Ky. Law Rep.ment recognized to the fullest extent the hu151; Rose v. Rose, 104 Ky. 48, 46 S. W. 524, mane maxims of the modern law of nations,