Fisher v. Krutz & Campbell

‘The opinion of the court was delivered by Kingman, C. J.: The facts found by the court seem to be .■sustained by the evidence. It is true that the evidence that •George Fisher was the agent of Statham, is not conclusive, but it is unimpeachcd and uncontradicted; and one cannot iread it without coming to the conclusion that he was such •.agent, when he took the tax certificate. Witnesses do not .always make those nice and refined distinctions in the terms they use, that characterize writers upon mental science, and .seem to be so familiar to counsel. Still they'have made their meaning sufficiently intelligible in this case for a plain man to understand it. An admission by one that he is the agent [509] of another is good' evidence of that fact as against the agent, and that is the purpose for which it was admitted in this case. Different rules, apply, where it is attempted to use the admissions of a person to prove that he is an agent, as against a third party, as in the case of Streeter v. Poor, 4 Kas., 412. A much more important question remains for, decision. The plaintiff in error holds the tax deed as the heir of his father, George Eisher, deceased. George Fisher became the agent of Statham, the holder of the original title, and under whom the defendants in error claim, in the year 1857, and this agency continued till he became the holder of the tax certificate, unless that relation was destroyed by the war of the rebellion. It is clear that in 1863 Fisher thought and talked as though he was still the agent of Statham. When this case was here before, this court decided that an agent, while acting as such, cannot become the owner of the tax title as against his principal. The plaintiff in error now seeks to avoid that conclusion by alleging that the contract of agency was destroyed by the condition of the parties in 1863. It appears from the evidence that Statham in 1861 was in the state of Virginia, and within the confederate lines, and so remained until Fisher had become the holder of the tax-sale certificate; and that during all that time communication between Statham and Fisher was cut off by the war. It is-also asserted that Statham was a rebel, but the evidence is-not sufficient to make that inference certain. Nor do we-consider the fact material in this case. If he was a rebel, the government might have confiscated his land; and as a rebel he could not lawfully exercise acts of ownership over his-land. But his right to do so was not destroyed; it was only suspended. Did this state of facts destroy the agency so as-to absolve Fisher from all legal obligations to Statham? We think not. He had Statham’s money in his hands. The government could have confiscated it. During the war the-agent could not have paid it over, not because he did not owe it, but because he could not have done so without holding intercourse with the enemy within the confederate lines, [510] which of itself would have been illegal. And perhaps also, because he could not transfer funds, which might become a -source of revenue to the government, to those who might use it to strengthen the hands of the common enemy. But while for one. or both of these reasons he could not have paid the money he had, over to Statham, the debt was not discharged— .only the collection suspended. When the war ceased, the payment could be enforced. A state of war puts an end to mil such business relations, between the citizens of the opposing powers, as requires a correspondence between them; and mil contracts made with a view to any communications between parties, members of nations at war, are void as against public policy; “but other contracts existing prior to the war are not .-extinguished, but the remedy only is suspended, and this only from the inability of an alien enemy to sue, or to sustain, in the. language of the civilians, a persona standi in judi,cio.” 1 Kent’s Com., 68. It is not necessary in this mase to examine at length the rights of citizens in time -of -war, because the principle involved does not require it. A man may retain an agency for an alien enemy during war, because by so doing he does not necessarily violate the rule inhibiting communication. This is not only according to principle, but is in conformity with the decided cases. Denniston v. Jarbric, 3 Wash. C. C., 396; Buchanan v. Curry, 19 Johns., 136; Manhattan Life Ins. Co. v. Warwick, 20 Grattan, 614; Conn v. Penn, 1 Peters C. C., 496; Monseax v. Urquhart, 19 Louisiana, 485. In a recent case in the r supreme court’the principle that an alien enemy-may have . an agent residing in this country and thereby enable a debtor to pay his debt to the agent, and thus stop the payment of interest, was recognized; Ward v. Smith, 7 Wallace, 447. ' There was therefore mo reason growing out of the war why Fisher should not remain the agent of Statham. He really -did continue as such agent; and retaining the agency he -could not become the holder of the tax title as against •the principal, as was before decided in this case. We have not thought it necessary to consider whether the law [511] applicable to alien enemies, belonging to different countries, is applicable to citizens of states in rebellion, and citizens of states supporting the government, and are not to be precluded from an examination of that question when it shall arise. The most favorable view of the case for the plaintiff in error is the one we have presented. The judgment is affirmed. All the Justices concurring.