■ аfter stating the case as above, delivered .the opinion of the court.
The principal question raised in the present case is, whether, by the effect of the pardon and amnesty granted to A. W. Bosworth by the special pardon of October,' 1865, and the general proclamation of amnesty and pardon оf December
*100
25th, 1868, he was restored to the control and power of dis position over the fee simple or naked property in reversion expectant upon the determination of the confiscated estate in the property in dispute. The question of the effect of pardon and amnesty on the destinаtion ' of the remaining estate of the offender, still outstanding after a confiscation of the property during his natural life, has never been settled .by this.court. That the guilty party had no control over it in the absence of such pardon or amnesty, has been frequently decided.
Wallach
v.
Van Riswick,
Perhaps it is not of much consequence which of these theories, if either of them, is the .true one; the important point, being, that the remnant of the estate, whatever its nature, and wherever. it went, was never beneficially disposed of, but remained (so to speak) in a state of suspended animation. Both' the common and t'h.e civil laws furnish analogies of suspended ownership of estates which may help us to a proper. conceрtion of that, now under consideration. Blackstone says : “ Sometimes the. fee may be in abeyance, that is (as the word signifies) in expectation, remembrance and contemplation of law; there being no person in esse in whom it can vest and abide; though the law considers it as always potentially existing, and ready to vest when a proper owner appears. Thus in a grant to John for life, and afterwards to the heirs of Bichard, the inheritance is plainly neither granted to John *101 nor Richard, nor. can it vest in the heirs of Richard till his death, nam nemo est haeres viventi's• it remains, therefore, in waiting or abeyance during the life of Richard.” 2 Bl. Com. 107. In the civil law, the legal conception is a little different. Pothiеr says 1 : “ The dominion of property (or ownership), the same as all other rights, as well in re as ad rem, necessarily supposes a person in whom the right subsists and' to whom it belongs. It need not be a natural person; it may belong to corporations or communities, which have only a civil and intellectual existence or personality. "When an owner dies, and no one will accept the succession, this dormant succession (succession jacente) is considered as being a civil person and as the continuation of that of the deceased; and in this fictitious person subsists the dominion or ownership of whatever belonged to the deceased, the same as all other aсtive and passive rights of the deceased; haereditas jacens personae defuncti locum obtinet.” Droit de Domaine de Propriété, Partie I, c. 1, § 15.
But, as already intimated, it is not necessary to be over .curious about the intermediate state in which the disembodied shade of naked ownership may have wandered during the period of its ambiguous existence. It is enough to know that it wаs neithér annihilated, nor confiscated, nor appropriated to any third party. The owner, as a punishment .for his offences, was disabled from exercising any act's of ownership over it, and no power to exercise such ■ acts was given to any other person. At his death, if not before, the period of suspension comes to an end, and the estate revives and devolves
*102
to his heirs at law. In
Avegno
v. Schmidt,
But, although'the effect of the law was to hold the estate, or naked ownership, in a state of suspension for the benefit of the heirs, yet they acquired no vested interest in it; for, until
the death of the ancestor, there is no heir. During his. life it does not appear who the heirs will be. Heirs apparent have,in a special case, been received to intervene for the protection of the property from spoliation.
Pike
v.
Wassell,
It would seem to follow as a logical consequence from the decision in Avegno v. Schmidt and Shields v. Schiff, that after the confiscatiоn of the property the naked fee (or the naked ownership, as denominated in the civil law),' subject, for the lifetime of the offender, to the' interest or usufruct of the purchaser at the confiscation sale, remained in the offender him *103 self; otherwise, how could his heirs take it from him by inheritance ? But, by reason of his disability to disрose of, or’ touch it, or affect it in any manner whatsoever, it remained, as before stated, a mere dead estate, or in ■ a condition of suspended animation. We think that this is, on the whole, the. most reasonable view. There is no corruption of blood; the offender ■can transmit by descent; his heirs take from him by descеnt; why, then, is it not most rational' to conclude that the dormant and suspended fee has continued in him ?
Now, if the disabilities which prevented such person .from exercising any power over this suspended fee, or naked property, be removed by a pardon or amnesty,.— so removed as to restore him to all his rights, privileges and immunities, as if' he had never offended, except as to those things which have become vested in other persons, — why does it not restore him. to the control of his property so far as' the same has never been forfeited, or has never become vested in another person ? In our judgment it does restore him to such control. In the opinion- of the court in the case of
Ex parte Garland,
The qualification in the last sentence of this extract, that a pardon doеs not affect vested interests, was exemplified in the case of
Semmes
v.
United States,
The last portion of the above extract was justified by the decision in the case of
Armstrong’s
Foundry,
The citations now made are sufficient to show the true bearing and effect of the pardon granted to Bosworth, and of the general proclamation of amnesty as applied to him. The property. in question had never vested in any person when these acts of grace were performed. It had not even been forfeited. Nothing but the life interest had been forfeited. His power to enjoy or dispose of it was simply suspended by his disability as an offender against the government of the United States. This disability was a part of his punishment. It seems to be perfectly clear, therefore, in the light of the authorities referred to, that when his guilt and the punishment therefor were expunged by his pardon this disability was removed; in being restored to all his rights, privileges and immunities, he was restored to the control of so much of his property and estate as had not become vested either in the government or in any other person;. — -especially that part or quality of his estate which had never been for *106 feited, namely, the naked residuary ownership of the property, subject to the usufruct of the purchaser under the confiscation proceedings.
This result, however, does not depend upon the hypothesis that the dead fee remained in Eosworth after thé confiscation proceedings took place; it is equally attained if we suppose that the fee was in n<vlbibus, or that it devolved to the government for'the benefit of whom it might concern. We aré not trammelled by any technical rule of the common or the civil law on the subject. The statute and the inferences derivable therefrom make the lay?- that controls it. Regarding the substance 6f things and not their form, the truth is simply this: a portion of the estate, limited in time, was forfeited; the residue, expectant upon the expiration of that time, remained untouched, undisposed of; out of the owner’s power and cоntrol, it is true, but not subject to any other person’s power or control. . It was somewhere, or possibly nowhere. But if it had not an actual, it had a potential, existence, ready to devolve to the heirs of the owner upon his death, or to be revived by any other cause that should call it into renewed vitality or enjoymеnt. The removal of the guilty party’s disabilities, the restoration of all his rights, powers and privileges, not absolutely lost or vested in another, was such a cause. Those disabilities were all that stood in the way of his control and disposition of the naked ownership of the property. Being removed, it necessarily follows that he wаs restored to that control and power of disposition.
. It follows from these views, that the act of sale executed by A. W. Bosworth and his wife'in September, 1871, was effectual to transfer and convey the property in dispute, and that the judgment of the Circuit Court in favor of the plaintiffs below (the defendants in error) was erroneous. That judgment is, therefore,
Reversed and the cause remanded., vñth instructions to enter .■ judgfhent for the defendants below, the now flaAntiffs in-error.
Notes
Le domaine de propriété, de méme que tous les autres droits, tant in re qu’ ad rem, suppose nécessairement une personne dans laquelle ce droit subsiste, et á qui il appartienne, Ii n’est pas nécessaire que ce soit une personne naturelle, telle que sont les personnes des particuliers, á qui le 'droit appartienne: ce droit, de meme que toutes les autres espéces de droits, peut appartenir á des corps et á des communautés, qui n’Ont qu’une personne civile et intellectuelle. . Lors qu’un propriétaire étánt mort, personne nc veut aсcepter sa succession, cette succession jacente est considérée comme étant une personne civile, et comme la continuation de celle du défunt; et c’est dans 'cette personne Active que subsiste le domaine de propriété de toutes les'dioses qui appartenaieni; au défunt, de méme que tous les autres droits actifs et passifjs du défunt: Scereditas jacens personas, defuncti locum obtinet.