Ahnert v. Zaun

Cole, J. The important question in this case is, whether the plaintiff was prevented by the existence of civil war from bringing his action in the courts of this state before the statute of limitations had run upon it. It is a fact found by the jury, that the plaintiff and his brother Ernst were residents of the city of New Orleans during the late war of the rebellion, and that they continued to reside in that city during the war. And the learned counsel contends that in consequence of the residence of the plaintiff in that city, and his disability to sue, there should be deducted from the computation the period covered by the war up to August 20,1866, when the rebellion was declared to be completely suppressed and peace restored by the proclamation of the president of that date. On the — 628 — other hand, the counsel for the defendant insists that the plaintiff can claim no suspension of the statute of limitations beyond, at the utmost, the 2d day of April, 1863; and that, strictly, nonintercourse between New Orleans and the loyal states terminated on the 6th day of May, 1862, on the capture and occupation of the city by the United States army, at which time adverse possession under color of title began again to run against the plaintiff. The consequences of the war upon the plaintiff’s rights must be ascertained and determined, if possible, from the adjudications of the supreme court of the United States, which we deem controlling upon the subject. Under the authorities, there is no room for doubt or argument as to the legal consequences which result from a state of war upon all contracts and existing remedies, so far as the citizens of the belligerent countries are concerned. Mr. Justice NelsoN, in the Prize Gases, states the doctrine as follows: “The people of the two countries became immediately the enemies of each other — all intercourse commercial or otherwise between them unlawful — all contracts existing at the commencement of the war suspended, and all made during its existence, utterly void.” And as touching the right of a citizen of one belligerent to maintain a suit in the courts of the other, Mr. Justice Cliffobd, in Hanger v. Abbott, 6 Wall., 532-539, remarks: “Total inability on the part of an enemy creditor to sustain any contract in the tribunals of the other belligerent exists during the war.; but the restoration of peace removes the disability, and opens the doors of the courts. Absolute suspension of the right, and prohibition to exercise it, exists during war by the law of nations; and if so, then it is clear that peace cannot bring with it the remedy, if the war is of much duration, unless it also be hold that the operation of the statute of limitations is also suspended during the period the creditor is prohibited by the. existence'of the war and the law of nations from enforcing his claim.” The court has likewise repeatedly held that the statute of limitations of — 629 — me several states did not run against tlie right of action of parties during tbe continuance of tbe civil war. The Protector, 9 Wall., 687; Same Case, 12 id., 700; Levy v. Stewart, 11 id., 244; United States v. Wiley, id., 508; Brown v. Hiatts, 15 id., 177; Batesville Institute v. Kauffman, 18 id., 152; Ross v. Jones, 22 id., 576. And tbe court says tbat our civil war “ was accompanied by tbe general incidents of a war between independent nations; tbat tbe inhabitants of tbe confederate states on tbe one band, and tbe loyal states on tbe other, became thereby reciprocally enemies to each other, and were liable to be so treated without reference to their individual dispositions or opinions; tbat during its continuance all commercial intercourse and correspondence between them was interdicted by principles of public law, as well as by express enactments of congress; that all contracts previously made between them were suspended; and tbat tbe courts of each belligerent were closed against the other.” Brown v. Hiatts, supra. It is not denied tbat this was tbe relation which existed'between the citizens of tbe loyal and disloyal states — tbat tbe war affected tbe condition of tbe entire territory of tbe states declared to be in a state of insurrection, except as modified by tbe laws of congress or tbe proclamations of tbe president. Congress, however, authorized tbe president by proclamation to declare that tbe inhabitants of a state, or any section or part thereof, where insurrection existed, were in a state of insurrection against tbe United States, and thereupon all commercial intercourse between tbe same and tbe citizens thereof and the citizens of tbe rest of tbe United States should cease and be unlawful so long as such condition of hostility should continue. Section 5 of act of July 13, 1861, 12 U. S. Stats., 257. In August, 1861, the president issued a proclamation declaring the inhabitants of certain states named to be in a state of insurrection against tbe United States, excepting such parts of those states as might maintain a legal adhesion to tlie — 630 — Union, and the constitution, or might he from time to time occupied and controlled by forces of tbe United States engaged in the dispersion of the insurgents. 12 U. S. Stats., 1262. This proclamation was in force when the forces of the United States captured and occupied the city of New Orleans on the 6th of May, 1862. On the 2d of April, 1863, the president issued a new proclamation revising his former one of August, 1861, revoking certain exceptions therein contained; declaring the inhabitants of the states named to be in a state of insurrection; but excepting from the operation of the proclamation certain designated ports, among which was the port of New Orleans. 13 U. S. Stats., 730. The supreme court, in cases which have come before it, has had occasion to consider and declare the legal consequences of these various acts of the political department of the government. In the case of the schooner Venice, 2 Wall., 258, which, with a cargo of cotton, was captured in Lake Pontchartrain, Louisiana, by the United States ship-of-war Calhoun, on the 15th of May, 1862, was taken to ¿ey West, and libeled as a prize of war in the district court, but was restored with her cargo to the claimant, Cook, who was a native British subject and had resided and been engaged in business in New Orleans, without being naturalized as a citizen of the United States, for ten years previous to the capture, the court held that “ the military occupation of the city of New Orleans by the forces of the United States, after the dispossession of the rebels from that immediate region in May, 1862, may be considered as having been substantially complete from the publication of General Butler’s proclamation of the 6th of May; and all the rights and obligations resulting from such occupation, or from the terms of the proclamation, existed from the date of that publication.” The chief justice, in the course of his opinion, after referring to the capture of the schooner, the occupation of the city, the proclamation of General Butler, the act of congress of July 13, 1861, and the pro — 631 — clamation of the president issued in pursuance of that act, says: “ This legislative and executive action related, indeed, mainly to trade and intercourse between the inhabitants of loyal and the inhabitants of insurgent parts of the country; but, by excepting districts occupied and controlled by national troops from the general prohibition of trade, it indicated the policy of the government not to regard such districts as in actual insurrection, or their inhabitants as subject, in most respects, to treatment as enemies. Military occupation and control, to work this exception, must be actual; that is to say, not illusory, not imperfect, not transient; but substantial, complete and permanent. Being such, it draws after it the full measure of protection to persons and property consistent with a necessary subjection to military government. It does not, indeed, restore peace or, in all respects, former relations; but it replaces rebel by national authority, and recognizes, to some extent, the conditions and the responsibilities of national citizenship. “The regulations of trade made under the act of 1861, were framed in accordance with this policy. 4s far as possible, the people of such parts of the insurgent states as came under national occupation and control, were treated as if their relations to the national government had never been interrupted, -x- * Yessels and their cargoes belonging to citizens of NeAV Orleans, or neutrals residing there, and not affected by any attempts to run the blockade, or by any act of hostility against the United States after publication of the proclamation, must be regarded as protected by its terms.”- The decree of the district court restoring the property to the-owner was affirmed. It is evident that here was a full and complete recognition of the ability of a resident of the city of New Orleans to come into a court of admiralty, to assert and maintain his right to a vessel and cargo, which, the chief justice says, “though undoubtelly euemy’s property at the time she was anchored in Lake Pontchartrain, cannot be — 632 — regarded as remaining such after the 6th of May.” The ground upon which the decision in the Yenice rests, is very clearly stated by Mr. Justice S wayNe in the Ouachita Cotton Case (6 Wallace, 521-531), as follows: “The subjugation of New Orleans and the restoration of the national authority there are regarded as having become complete on the 6th of May, 1862. From that time its citizens were clothed with the same rights of property, and were subject to the same inhibitions and disabilities as to commercial intercourse with the territory declared to be in insurrection, as the inhabitants of the loyal states. Such is the result of the application of well settled principles of public law. The proclamation of the 2d of April, 1863, recognized but did not change the existing condition of things. It was the same afterwards as before. The effect of the proclamation was cumulative.” In that case the cotton was seized in April, 1861, by the naval forces of the United States, on a plantation up the Ouachita river, in a part of Louisana then, as from the origin of the rebellion, subject to the power of the Confederate government. The cotton was claimed by citizens of Ohio and residents or corporations of New Orleans, who had purchased it of the rebel government after the 6th of May, 1862. The court held that “ the restoration of the national authority at that date ” fixed “ upon the purchasers the same disabilities as to commercial intercourse with the territory declared to be in insurrection as it had previously fixed upon the inhabitants of the loyal states.” The purchases, therefore, were all declared illegal and void, for the reason and upon the ground that all commercial intercourse between the inhabitants of insurgent territory and inhabitants of the other states, except tinder the license of the president and according to the regulations prescribed by the secretary of the treasury, was entirely prohibited. The plain doctrine of this case is, that the citizens of New Orleans were subject to the same disabilities and sustained the same relations in respect to the inhabitants — 633 — of the insurrectionary territory, as existed between those inhabitants and the citizens of other portions of the Union. In other words, the “ condition of hostility,” so far as the inhabitants of that city were concerned, had been removed by the operation of the president’s proclamation and its capture and occupation by the United States forces. And it seems to us the logical result of all these adjudications is, that the plaintiff was under no disability to bring an action in the courts of this state, in consequence of the war, after May, 1862, or certainly after April, 1863. No other inference can be fairly drawn from them, and they are conclusive upon the question before us. The counsel for the plaintiff made a point that the defense of adverse possession was not sufficiently set up in the answer, or that there was a variance between the allegations. of the answer and proof. "We have considered these objections, but fail to see any force in them. If there was a variance, it was quite immaterial. These remarks, together with what is said in Wiesner v. Zaun, 39 Wis., 188, dispose of all questions we deem it necessary to notice. By the Gowrt. — The judgment of the circuit court is reversed, and a new trial ordered.