CONCURRING OPINION.
Bermudez, C. J.I concur in the opinion and decree just read, which appear to he in furtherance of the federal jurisprudence, as expounded hy the U. S. Supreme Court itself. I consider that it is necessary, in order to meet the issue presented, to ascertain and determine where the fee dwelt after the condemnation and sale of the property, and that the conclusion arrived at may he reached from another standpoint.
Writing on the right of property, civilians say, that ownership is perfect or imperfect. Ownership is the right hy which a thing belongs to some one in particular, to the exclusion of all others. It vests in him who has the immediate dominion of it and not in him who has a mere beneficiary right. It is perfect when perpetual, and when the thing unincumbered with any real right toward any other person than the other. It is imperfect, when it is to terminate at a certain time or on a condition.
It is of the essence of the right of ownership that it cannot exist in two persons for the whole or entirety of the same thing.
The ownership of Surget was áb mitio perfect, that is unqualified and therefore perpetual.
The forfeiture arising out of his aid to the rebellion deprived him of the full or absolute ownership for the term of his natural life from the time of confiscation and condemnation.
The decree of condemnation and sale vested an imperfect ownership in the United States which was to terminate when Surget should die.
It dismembered his perfect ownership into two imperfect ownerships, the one a complement of the other j both parts of one and the same whole. When this severance took place, the United States became the owner of the one; Surget remained the other of the owner. Nothing in the act suggests any other ownership; nothing in the opinions of the United States Supreme Court suggests any other individual as the absolute owner of the fee, until after the death of Surget.
In the case of Rankin, 6 Mon. Ky. 531, a similar question was presented and was solved in the same sense.
*654A person under sentence of death for murder made Ms will and died before the execution of the sentence.
One Court said : The validity or invalidity of the will depends upon the question whether, by the laws of the State, the testator forfeited the whole of his estate upon being convicted of the murder. If, on the conviction, the whole of his estate was forfeited, there was nothing he could transmit to others and the will would be inoperative; but, if notwithstanding, there was not an entire forfeiture of all his estate, he was capable of disposing of his interest not forfeited and as to that interest, be it what it may, his will can have an operation and must be adjudged valid.
The statute of the State disposed of all the estate forfeited to the Commonwealth, by directing it should pass and descend to his heirs. The question still remained, whether the whole estate of the offender was, upon his conviction of felony, forfeited to the Commonwealth. The constitution of the State contained this clause: “ That no attainder shall work corruption of blood, nor (except during the life of the offender) forfeiture of estate to the Commonwealth.”
“ Not the absolute fee simple estate of the offender in lands and goods that according to the Constitution was forfeited to the Commonwealth' on attainder or conviction of felony; but it was the interest or estate which the offender was entitled to during his life that by the law in force at the passage of the act, was forfeited. The reversionary interest, or in other words that part of the estate which remained after the death of the offender, according to those laws, resided in him after conviction, must still be understood to reside in the offender, though attainted or convicted.” See Borland’s case, 4 Mason, 174.
Under'the confiscation law, the fee, the perpetual ownership, could not be and was not forever divested. The explanatory or restrictive resolution of the original act is explicit on the subject, but in the absence of any such legislation, declaration or abridgment, the original act would have been impotent to have accomplished that object, because of the insuperable inhibition of the Constitution, which forbids forfeiture beyond the term of the offender’s life.
Had not the resolution been resisted by the Executive, or passed notwithstanding, the potent arm of the highest tribunal in the land would undoubtedly, at the proper time, have struck a fatal blow, branded the high-handed measure and denounced it as a lifeless form which should never have seen the light of day.
*655The fee then continued to dwell in the offender, hut barren of any profit, good or advantage to him; without any right on his part to make it available in any manner during his life, though it necessarily remained subject to claims upon it. It is “ incredible that lawyers, while providing for the confiscation of an enemy’s land, intended to leave in that enemy a vested interest he might sell and with the proceeds of which he might aid in carrying the war against the Government.”
It can only be upon the theory that the fee was not absolutely divested, that the creditors anterior to the law, whose claims were secured by lien or mortgage, and have been recognized the right of coercing payment by subjecting the property, notwithstanding confiscation and sale, and that at the offender’s death it passes to his heirs, who take as though no forfeiture had ever occurred.
It is true that the proceeding is in rem, but the law of the situs requires it to be conducted contradictorily with the owner, in order that the judicial sale may operate a valid divestiture of the title or fee, even if the defendant were not the owner of the fee at the date of the proceeding and sale following.
But even assuming and conceding that the offender Surget was actually divested of his entire ownership, perfect and imperfect, and that the fee vested in the United States, the divestiture would not be entitled to more effect than it would have if Surget had himself, in the absence of any condemnation and sale, voluntarily parted with his ownership of the property.
In such a case, under the terms of the contract of sale on which Shiff bases his claim, the alienation of the property by Surget could not have prejudiced him, as it contains the clause de non alienando, which under the laws of this State authorizes him to proceed in the enforcement of his debt against the original debtor and mortgagor regardless of the transfer, and ignoring it, — the property passing to the transfer-ree or pirrchaser, ewm onere, or subject to that clause.
From that standpoint, it is therefore immaterial whether the fee remained in Surget or passed to the Government. It was divested by the proceeding of 1880, and vested in Shiff.
Prescription is a means of defense created by the law for the necessity of things to which the individuals in whose favor it exists may have recourse or not as they may deem better. They a,re under no obligation to set it up. When, therefore, they are sued in a case in which they could urge it, and do not do so, they are deemed to have waived *656the benefit of it. Under such circumstances, those who take from them, their heirs and assigns,- are as equally estopped from pressing it as effectually as the debtor himself.
As Surget did not set up prescription or peremption, prior to the sale of the property, but on the contrary waived it and recognized title in Shiff, as is shown by his silence and his will, the claim of Shiff continued in existence, was legal and valid, and the expropriation became complete in his favor as creditor, purchasing as if there never was any prescription law.
Those and any other defenses which could have been and were not set up by Surget before the sale, the plaintiffs — who are Surget’s heirs and successors, and who have acquired no rights which he did not possess and could not have exercised — cannot be permitted to assert and urge after his death.
I, therefore, concur in the decree.