ConcurRing Opinion.
Fenner, J.I think it desii able to avoid, as far as possible, any decision upon vexed questions arising under the confiscation laws, not absolutely essential to the determination of the instant controversy. Whatever inferences may be drawn from the expressions used by the Supreme Court of the United States in discussing the effect of those laws, that tribunal has not, as yet, explicitly decided whether or not condemnation and sale under them, operates to destroy the will-making power of the owner, as to real estate. I prefer not to anticipate the decision of that Court upon this purely Federal question. If we can decide this case upon the strength of defendant’s title, we need not concern ourselves about the weakness of that of the plaintiffs.
I am equally indisposed to vex my mind with the consideration of the metaphysical problem as to where the fee of this property resided during the life-time of Surget, the solution which has been, thus far, consistently declined by the Supreme Court of the United States.
For the purposes of this controversy, it matters not where the fee resided. Wherever it was, the Supreme Court has unequivocally settled the doctrine that it remained subject to prior mortgages and privileges in favor of third persons, which were entirely unaffected by the confiscation proceedings.
Neither did those proceedings affect the debt due by Surget to Shiff, which was secured by mortgage.
The object and effect of the pact de non alienando, under our law, are to secure to the mortgage creditor the right to foreclose his mortgage by executory process directed solely against his original debtor, and to seize and sell the mortgaged property, regardless of any subsequent alienations.
We make a long step towards eliminating irrelevant questions and exposing the real and pivotal question in this case, when we announce, as an indisputable proposition, that if the executory proceedings against Surget were regular; if, at the date thereof, the debt subsisted; if the mortgage securing the same were valid and had been preserved by proper inscription and re-inscription — the purchaser at the sale un*658der those proceedings would have acquired a valid title against all the world, regardless of who owned the fee at the date thereof.
Indeed, I do not understand that the learned counsel of plaintiffs would dispute this proposition. They claim that the title is invalid, as against plaintiffs, on two grounds, viz:
1. That, at the date of the foreclosure proceeding, the debt of Shiff had been extinguished by prescription.
2. That his mortgage had lapsed, as to them, by the failure to re-inscribo it within tiie term prescribed by law.
At this point we encounter other elementary propositions, too plain for dispute, establishing that, whatever forcé the above objections might have if urged by third persons, they have none in favor of the mortgagor or his heirs. As to prescription, the mortgagor having failed to plead it, its effect is forever lost as to him and his heirs. As to the want of re-inscription, neither inscription or re-inscription is necessary-to preserve the mortgage as against the mortgagor and his heirs.
By this process of elimination, we reduce this controversy to a single question, viz: are the plaintiffs, heirs of Surget, claiming title by virtue of inheritance through him; or are they third persons as to him, deriving title from the bounty of the United States conferred upon them under the merely descriptive quality of heirs of Surget?
They have their right upon the latter hypothesis.
If we confine ourselves to the plain language of the Acts of Congress, it is difficult to discern any foundation for suplí a theory. In the Act of July 17, 1862, and the explanatory joint resolution, taken together, Congress provided for the seizure and condemnation of enemies’ property, and declared that, when condemned, it should “ become the property of the United States, and may be disposed of as the Court shall decree, and the proceeds thereof paid into the Treasury for the purposes aforesaid; but no punishment or proceedings under this Act shall be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.”
This is precisely what Congress has said, and all that it has said, on this subject.
It has not assumed to say who should take the property after the offender’s death. It has not declared that, at his death, the property should vest in the offender’s next of kin or in the persons who, under the lex loci rei sitai, would be his heirs. If such were the case, the contention of plaintiffs might find strong support. But Congress has simply declared that the proceedings shall not operate upon the property *659at all beyond tbe period of the offender’s natural life. At tbat moment they cease to bare effect and are as if they had never taken place.
Suppose the provision had been that the proceedings should not “ work a forfeiture of the real estate of the offender beyond ” the period of twenty years from their date. At the expiration of that term, would not the offender, if still alive, resume the property ? If he were dead, would not his heirs take it ? And why would they take it ? Simply for the reason that he was dead, and that they were Ms heirs, and, as such, entitled to take whatever would belong to him, if living.
And so, under thé law as it is, Congress has not touched the property for any period beyond the offender’s life. However absolute the’ ownership of the United States, no property in the thing beyond that period ever passed to "the United States. Congress has never said a word about the estate after the death. At that moment the ownership of the United States ended. The “forfeiture of the real estate of the offender ” ceased to have effect. Nothing disturbed or divested the offender’s ownership except the forfeiture and that divestiture could only continue so long as the forfeiture had effect. A forfeiture for a term cannot extend beyond the term; and when the term expires, the estate divested thereby revests in the original owner, if living, in his heirs, if dead.
We are not concerned here with questions which might arise as to whether, under the common law of real property, the fee is susceptible of dismemberment or of being in abeyance, or in gremio legis or m rrnbi-bus. We are dealing here with a statute, the exercise of legislative power, which modifies and changes existing laws according to its will. If Congress had power over the subject-matter, it could dismember the fee, or place it where it chose. The word fee, in its ordinary use, embodies a composite idea. Discarding the feudal characteristics of the English System, Mr. Abbott gives the following definition: “ In American law, a fee is an estate of inheritance without condition, belonging to the owner and alienable by him or transmissible to his heirs absolutely and simply.”
Such an estate existed in Surget, as to this property, prior to its condemnation. Now, the Act of Congress, as interpreted by the Supreme Court of the United States, destroyed certain elements of Surget’s fee. It annihilated his ownership during his life. It destroyed absolutely his power of alienation. We may concede, for the sake of argument, that it destroyed even his testamentary capacity in relation to this property. But it unquestionablj' left in him the faculty of transmit*660ting to Ms heirs absolutely and simply, because that is a faculty coming into play only at the moment of his death, and when the forfeiture terminated and ceased to have any effect whatever on his rights.
This case is ponding on a writ of error in the Supreme Court of the United States. Reporter.Plaintiffs cannot claim title to this property after Surget’s death, as derived from the United States, because the United States never took or held any such title. They cannot claim that the United States, in the exercise of legislative power, transferred the estate directly from Surget to them, irrespective of their right of inheritance, because no such transfer is found in the statute, and no language susceptible of any such construction.
^ Their only title rests upon their right of inheritance from Surget— upon their being his legal heirs — the beneficiaries of the right, vested in him and never forfeited, to transmit this property to his heirs.
Conceding the destruction of Surget’s testamentary capacity, the utmost they could claim would be the position oí forced hews under our law, whom the ancestor could not disinherit. But even such heirs, though treated in our law in many respects as creditors, could not oppose to the title of defendant herein the defenses of prescription of the debt or lack of reinscription of the mortgage.
The learned judge of the court á quá rejected the demand of plaintiffs on the ground that Surget’s testamentary capacity was not affected by the confiscation proceedings and that his instituted heir succeeded to his rights at his death.
Without intimating any opinion on that question, I have preferred to avoid it and to reach the same decree on different grounds.
For these reasons, I concur in the decree.
Rehearing refused.