Dorsey v. Thompson

Alvey, J., delivered the opinion of the Court. Much of the argument in this case, on the part of the appellant, has been addressed to the question-, whether, at the time of the institution of this suit, and during the period within which certain proceedings were had, of which he now complains, he was liable to be sued in the Courts-of this State, he being at the time, as be alleges, an alien enemy of the Government of the United States, and, consequently, of the State of Maryland. . It has been very zealously argued by the appellant’s counsel, that, inasmuch as the appellant left his residence in this State and joined the Confederate army, before tbe institution of the suit, and remained within the Confederate lines until after the close of the war, his status was that-of an alien enemy to the Government of the United States, and that, as a legal consequence of such status, he was not liable to be sued in the Courts of the country against which he was engaged in hostility. That during the state of war all right of action by those remaining in the country to which he was hostile was suspended as against him, and that, consequently-, the proceedings ta*ken in' this case, so far as they attempt to affect him, were without warrant of law, and are, therefore, nugatory and void. Now assuming, for the sake of the argument, that the appellant’s status was that of alien enemy, as he contends, does it follow, as a necessary legal consequence, that he was exempt from all liability of suit in the Courts of the belligerent country, by the citizens and friends of that country, to affect his rights and estate remaining within its jurisdiction ? To maintain this proposition, so •sweeping, and so disastrous in its consequences to the rights of the friendly citizen of the country whose Courts are invoked for relief,' no authority whatever has been produced, nor are we aware of any established principle upon which it can be maintained. On the contrary, — 39 — reason and convenience would seem strongly to militate against it. It is certainly true, that an alien enemy is incapable of suing and maintaining a suit, either at law or in equity, in the Courts of the country to which he is hostile, during the state of hostilities ; but this disability is personal to the plaintiff, and is designed to take from the enemies of the government the benefit of its Courts. Daubigney vs. Davallon, 2 Anst., 462; Sparenburgh vs. Bannatyne, 1 Bos. & Pul., 163; Society, &c. vs. Wheeler, 2 Gall., 105; 1 Daniel Ch Pra. and Plea., 58; Story’s Eg. Pl., sec. 53. There may be auxiliary reasons for the rule founded on policy; but in reference to this Judges have not agreed in opinion. In the case of Sparenburgh vs. Bannatyne, 1 Bos. & Pul., 170, Chief Justice Eyre, in speaking of the ground upon which the plea of’alien enemy is founded, said: “As to the ground of policy which has been taken in argument for the defendant, namely, that a benefit would result to the enemy from the plaintiff’s recovering, it is a policy, perhaps doubtful, certainly remote, and which I do not hold to be satisfactory. I take the true ground upon which the plea of alien enemy has been allowed is, that a man, professing himself hostile to this country, and in a state of war with it, cannot be heard if he sue for the benefit and protection of our laws in the Courts of this country. We do not allow even our own subjects to demand the benefit of the law in our Courts, if they refuse to submit to the law and jurisdiction of our Courts. Such is the case of an outlaw.” The plea of alien enemy, however, is greatly disfavored by the Courts, and all presumptions are generally indulged against it; (8 T. Rep., 166; 2 Gall., 127; and where the disability of alien enemy occurred before judgment, and to a scire facias on the judgment the plaintiff’s disability was pleaded, the plea was disallowed because it had not been availed of to the original — 40 — action; the plaintiff having heen allowed to recover judgment, his disability could not he set up to defeat execution on it. West vs. Sutton, 2 Ld. Raym., 853. The defence is technical, .and is only allowed when formally and strictly pleaded to the maintenance of the suit. 1 Chit. Pl., 234. But whether the ground of the defence of alien enemy be the possible benefit that might result to the enemy from allowing the plaintiff to recover, or the want of claim or right to the use of the Courts of the country by the plaintiff, in consequence of his status as an enemy, the reason that creates the disability of. the party as plaintiff does not apply to him as defendant. As plaintiff,the party attempts to exercise a privilege that he has forfeited, at least for the time; hut, as defendant, he is sought to he made amenable for what justice may require- of him. The mode and manner of acquiring jurisdiction, and making the proceedings binding on him, is another and a different question from that of his total exemption from suit pending hostilities. This depends upon the remedial processes of the Courts ; and, as is well known, they-are generally wholly inadequate during a state of actual war in suits in personam, to furnish the foundation for exercising jurisdiction over alien enemies residing in the enenay’s territory. But still these enemies are liable to be sued, if within the reach of process. - Indeed, that an alien enemy is liable to be sued in the Courts of the hostile country would seem to he a settled principle of law. It has heen so' expressly decided by this Court in the case of Dorsey vs. Kyle, 30 Md., 512; ami it has heen recently so decided by the Supreme Court of the United States, in the case of McVeigh vs. U. S., 11 Wall., 259, 267. In this latter case, the Court said: “ Whatever -may he the extent of the disability of an alien enemy to sue in the Courts of the hostile country, it is clear that he is liable to he sued, and this carries — 41 — with it the right to use all the means and appliances ol defence.’' Bacon's Abr., tit. Alien, D., is quoted from, in which it is said that an alien enemy may be sued at law, and may have process to compel the appearance of his witnesses. See also Albretcht vs. Sassmann, 2 Ves. & B., 323. Having thus shewn that, conceding the legal status oi the appellant to be that of an alien enemy, there is nothing in that status to exempt him from suit in the Courts of this State, except the difficulty of rendering him amenable to the process of the Courts, we shall now proceed to examine the nature of the case and the manner in which jurisdiction was acquired by the Court to pass the several orders of which the appellant complains on this appeal. The bill in this case was filed on the 3d of December, 1863, by three of the daughters of the late Chief Justice Thomas B. Dorsey,' against the appellant and others; its objects being, 1st. To obtain an account of the estate of the deceased from the surviving executor and trustee, John T. B. Dorsey, the appellant, and the executrix of Win. H. G-. Dorsey, deceased, who was co-executor and trustee with the appellant, under their father’s will; 2d. For the reino val of the appellant from his position of trustee, because of his absence from the State, and consequent neglect of the trusts, and to have other trustees appointed; and, 3d. To obtain a decree for the sale of all the residue of the real estate of the testator, the late Judge Dorsey, not specifically devised ; the proceeds to be distributed according to the devises, directions, and trusts set forth in the will. The appellant was tiie devisee of the one-fifth part of all the residue of the real estate, thus prayed to be sold; and, by a separate clause in the will, the two executors were authorized and empowered to sell, at such time as they should deem it expedient or necessary, all the real and personal estate of — 42 — their testator that had not been specifically devised or bequeathed by his will. This power had been hut partly executed ; a considerable portion of the residue of the real estate remaining unsold at the time of filing the bill. The three daughters, complainants, were each entitled to .one-fifth of this residue of t.he testator’s estate, to be held in trust, and invested for their use and benefit; the appellant being the trustee appointed by the will to hold and invest the one-fifth for his sister, Mrs. Thompson, one of the complainants. To fully execute these trusts created for the three daughters, it is apparent that all the lands embraced in the power of sale were required to he sold, and that such was the design and intention of the testator. There had been a failure to execute the power, and one of the executors was dead, and the other absent beyond the jurisdiction of the State, at the time the bill was filed. The appellant was alleged to be a non-resident, and was proceeded against as a non-resident defendant, ‘by order of publication in the usual form, and as authorized and directed by the statute law of the State. The order was duly published once in each of four sucsive weeks before the 1st of February, 1864, as required, warning the appellant, and. other absent defendants, to appear and answer on or before the 1st* of May, 1864. This order of publication was not heeded by the appellant, because, as he alleges, he was, at the time, within the lines of the Confederate States, a power at war with the United States, and that it was unlawful for him either to receive or obey the notice thus attempted to be given; and that, consequently, all the proceedings had in the cause, so far as he is concerned, are without efi'ect and void, the Court failing to acquire jurisdiction to decree against him. This position of the appellant would be entirely correct and unanswerable, if he had been a citizen or resident of any of the Confederate States at the commencement of — 43 — the war. But that was not the case with the appellant. At the commencement of the war he was a resident citizen of this State; and it was not until about the 1st of July, 1861, and after hostilities had commenced, that he voluntarily left the State and went to Virginia, one of the Confederate States, and afterwards joined the Confederate army. These facts are fully disclosed in records brought into this Court by the appellant himself, in one of which was involved the validity of the order of sale passed in this cause. Dorsey vs. Garey, 30 Md., 489; Dorsey vs. Kyle, 30 Md., 512; Dorsey vs. Dorsey, 30 Md., 522. On these facts appearing in the case of Dorsey vs. Dorsey, just referred to, this Court decided that the appellant was subject to the notice given hv publication, and that lie was hound by the proceedings taken in the cause, as any other non-resident defendant would be, notwithstanding his allegation that he was at the time within the Confederate lines, and that be could not in fact receive the notice. That the presumption of notice, resulting from the due publication of the order of Court, was such as to confer upon the Court power and jurisdiction to decree upon the subject-matter of the suit, that subject-matter itself being within the jurisdiction of the Court. Indeed, without such presumption and such power, the rights of creditors, and the rights of cestuis que trust, would, in many cases, he utterly sacrificed and lost. Subsequently, the case of Johnson vs. Robinson & Pearre, 34 Md., 165, came into this Court, and in that case was involved the validity of a notice by publication, the defendant intended to be affected by it having left the State, and being at the time engaged in the Confederate service. The notice there was held to be ineffectual ; but it was so held in deference to and upon the authority of the decision of the Supreme Court of the — 44 — United States, in Dean vs. Nelson, 10 Wall., 158, where the doctrine was announced, without limitation or qualification, that such notice, to affect a party so situated, was an idle form, and therefore a mere nullity. By a more recent decision, however, of the same learned 'tribunal, the principle of the case of Dean vs. Nelson has been materially modified; and the doctrine as last announced, in Ludlow vs. Ramsay, 11 Wall., 581, is, that notice by publication is effectual, when duly authorized and regularly given, as against a party voluntarily absenting himself from his home within the Federal or Union lines, and going into the Confederate lines to engage in hostilities against the government of his domicil. The Court say, át p. 589 of the Report: “But if, as in this case, a party voluntarily leaves his country or his residence for the purpose of engaging in hostilities against the former, he cannot be pérmitted to complain of legal proceedings regularly prosecuted against him as an absentee, on the ground of his inability to return or to hold communication with the place where the proceedings are conducted. That would he carrying the privilege of contra non valentem to an unreasonable extent.” Taking this as the proper announcement of the law, (and from the nature of the question itself it is obvious that there is great propriety in making the decisions of the State Courts conform to it,) there can be no question but that the notice given in this case was effectual, and that the Court below was authorized to proceed as it could have done in any other case of a non-resident defendant, against whom notice had been duly published. Having disposed of these general propositions which were supposed to be involved in the case, we come now to consider the several orders that were passed in the course of the proceedings in the Court below. And assuming, without deciding, that they are all open for review on this appeal, we shall consider them in the order in which they were passed. — 45 — 1. The first of these orders is that of the 6th of January, 1864, directing a sale of the real estate, prayed to be sold. The question of the jurisdiction of the Court to pass this order has been heretofore determined by this Court, in the case of Dorsey vs. Garey, before referred to. The only other question that can now be presented, is, whether the jurisdiction was properly exercised ? But looking to the nature of the order, and the subsequent proceedings in the cause, we fail to discover in what respect the appellant can be benefitted by its reversal, if ground could be shown upon which such reversal could be asked. Inasmuch as there was jurisdiction in the Court to pass the order, it is clear beyond all doubt, that the purchasers who have acquired titles under it, are entitled to be protected and that a reversal of the order would not operate to disturb those titles. Chase vs. McDonald & Ridgely, 7 H. & J., 161, 199; Magruder vs. Peter, 11 Gill & John., 217, 242; Johnson vs. Robinson & Pearre, 34 Md., 165, 173; Bank U. S. vs Bank of Washington, 6 Pet., 8. But there is nothing disclosed by the record to render it improper in the Court to pass- this order of sale. On the contrary, the lands were required to. be sold, in order to the due execution of the trusts in favor of the complainants. The testator himself had directed that they should be sold ; and notwithstanding eight years had elapsed since the testator’s death, his estate had not been fully administered, and the power of sale had only been partly executed. One of the executors was dead, and the other beyond the jurisdiction of the State. The Court, therefore, could well declare in the order that it was fully satisfied that at the final hearing a sale of the lands would have to be decreed. . As to the power to appoint a trustee to make the sales, there can be no doubt of its existence, as one of the general inherent powers of a Court of Chancery. But, independently of the general power of the Court, the — 46 — Code, Art. 16, sec. 66, provides that where any person dies, leaving real or personal property to be sold for the payment of debts, or other purposes, and shall not appoint any person to sell and convey the same, or if the person appointed dies, or neglects or refuses to execute such trust, the Court, upon the petition of any person interested in the sale of such property, may appoint a trustee to sell and convey the same, and apply the money arising from the same to the purposes intended This provision of the Code embodies the 4th section of the Act of 1785, clr. 72, and would seem fully to embrace this case, as to the appointment of a new trustee to make the sale. The proceedings under this provision of the statute have generally been of a summary nature, and most generally ex-parte. Hammond vs. Hammond, 2 Bl’d, 221, and cases in notes, on pages 221, 222 and 223; Deakin’s case, 2 Bl’d, 398; Shriver’s Lessee vs. Lynn, 2 How., 43, 60. ■ The sales being authorized by the order, and there being nothing in the record to impeach their fairness, it follows of course that the Court was right in finally ratifying them, as they were reported by the trustee. 2. The order next to be considered is that also of the 6th of January, 1864, removing the appellant as trustee for his sister, Mrs. Thompson, under his father’s will, and the appointment of another person in his stead. It is declared in the order» that it appeared to the Court that such removal and appointment were necessary for the preservation of the trusts declared in the testator’s will. If such was the exigency of the trust, and we see nothing to the contrary, it was clearly the duty of the Court to act promptly for its protection. It is one of the first maxims of a Court of Equity that a trust shall never fail or suffer for the want of a trustee to support and execute it. It is a principle- equally well established that the Court, in cases requiring such remedy, will remove one trustee and substitute another. Indeed, says Judge — 47 — Stoby, (2 Eq. Jur., sec. 1287,) “the appointment of new trustees is an ordinary remedy, enforced by Courts of Equity in all cases, where there is a failure of suitable trustees to perform the trust, either from accident, or from the refusal of the old trustees to act, or from their original or supervenient incapacity to act, or from any other cause.” And so, Mr. Hill, in his work on Trustees, side p. 191, says, that “where the circumstances or conduct of any existing trustee render it inexpedient for him to continue in the office, the Court will adapt its relief to the exigencies of the case, and having first decreed the removal of the trustee, will then proceed to supply the vacancy by appointing another person to act in the trust, and by directing the conveyance or transfer of the trust property to him.” “Thus this relief has been decreed, where the original trustee or trustees declined to act; or were desirous of being discharged; or had absconded; or were incapable of acting through age and infirmity; or could not discharge the trust through disagreement amongst themselves ; or had been guilty of breaches of trust; or become bankrupt.” The same general doctrine is very fully asserted in the case of Comegys vs. The State, use of Dyckes, 10 Gill & John., 183, 184, where it is said that the removal of a trustee from the jurisdiction of the State may imperiously demand the substitution of a new trustee. Here the appellant had been absent from the State at the date of the order for about two years and a half, and the prospect of his return was remote and altogether contingent. The Court, under the circumstances of the case, was certainly justified in doing what it did for the protection of the trust; as without an active trustee no investments could he made, or investments changed, or income collected for the benefit of the cesiui que trust, who was & feme covert. — 48 — The only objection that could have been urged to the . passage of the order is, that it was premature, that is to say, before the time had expired within which the appellant was warned by the notice of publication to appear and answer. But the order being correct in itself, and such as should have been passed at the proper time, no such objection can avail now. The order stands as if passed at thé proper stage of the cause. 3. We come now to the orders of the 20th of December, 1864, and the 4th of December, 1866, finally ratifying the auditor’s reports and accounts, wherein was distributed the one-fifth of the proceeds of the sales of lands to which the appellant was entitled as devisee under his father’s will. The distribution was made, 1st, to the balance due on the mortgage of John T. W. Dorsey, covering the interest of the appellant in the real estate .sold; and, 2ndly, to judgments of condemnation obtained in certain attachment proceedings against such interest in the lands' in Howard County, by Mrs. Comfort W. Dorsey; 'such judgments having been obtained before the lapds were sold, and were therefore binding on them at the time of sale. Now, as to the mortgage, it is difficult to perceive upon what ground an objection can be reasonably made to its payment out of the proceeds of sale. It embraced the appellant’s interest in the land sold, and the debt intended to be secured' was over-due. The event had long before occurred upon which, by express stipulation, the mortgagee was -authorized and empowered forthwith to foreclose the mortgage, and to sell the property embraced in it, and to apply the proceeds of sale to the extinguishment of the mortgage debt. The mortgagee • was made defendant in these proceedings, and, by his answer, assented to the sale as prayed in the bill; but in such case, there was no necessity that time should be given to the parties entitled to the equity of redemption, — 49 — for the pajunent of the mortgage debt. Gibson vs. McCormick, 10 Gill & John., 65. Selling the lands free of the mortgage incumbrance was certainly beneficial to all parties concerned, and as the mortgagee consented to such sale, he was entitled to assert his claim to the proceeds, and to have them applied according to the terms of the mortgage. Of this the appellant cannot complain; it is but a mode of exercising and taking benefit of the power expressly given by the mortgage itself. Then, as to the judgments of condemnation they were strictly judgments in rem. for the satisfaction of which the appellant’s interest in the land seized had been condemned ; and, of course, the proceeds of sale of such condemned interest were equally liable to the judgments as the land itself. To have sold the land subject to the condemnations would have left it liable to immediate execution in the hands of the purchaser, which could have had no other effect than that of producing a sacrifice in the price; and inasmuch as the plaintiff in the judgments, being a defendant in these proceedings, consented to the sale of the land free of the condemnation, but holding the proceeds of sale in its stead, the Court could exercise no discretion in withholding distribution of such proceeds to these judgments. The judgments came before the Court collaterally, and their correctness therefore could not be questioned. 4. We come lastly to the order or decree of the 21st of September, 1871, passed in reference to the sale of the residue of the real estate remaining unsold under the previous order of sale. And to determine the real character of this order we must see under what circumstances it was passed. The Court, by its order of the 7th of April, 1871, had suspended the further execution of the previous order of sale, passed on the 6th of January, 1864, until further — 50 — direction, and ordered a subpoena to issue to the appellant, commanding him to appear and answer the bill by a day named. This subpoena, though duly served, was not obeyed, and, upon application of the complainants, the order of the 21st of September, 1871, was passed, whereby the trustee appointed by the first order of sale was continued, and ordered to proceed to sell the remainder of the real estate ordered to be sold, “as if his power and authority in the premises had not been suspended by the order of the 7th of April last.” No disposition whatever is made of the proceeds of sale, nor is any other subject-matter of the bill attempted to be in anywise passed upon by the order. It is contended, that this order of the 21st of September, 1871, is in reality a final decree in the cause, and as such was prematurely passed, and without the necessary preliminary proceedings being taken upon which to found it. The bill of coinplaint was not taken pro confesso, nor was there any interlocutory decree passed, directing evidence to be taken to sustain the allegations of the bill; and if the order in question' is to be regarded as a final decree, it is quite clear that it was erroneously passed', because the necessary preliminary steps were not taken. But is this order a final decree, in any proper sense of that term? We think not. The authorities do not, so regard it. • Lee vs. Pindle, 11 Gill & John., 362; Perkins vs. Fourniquet, et al., 6 How., 206; Pullian, et al. vs. Christian, 6 How., 209; Craighead vs. Wilson, 18 How., 199; Beebe vs. Russell, 19 How., 283. The order is susceptible of but one construction, and that is, that it was simply a renewal and continuation of the former order of sale. And that being its true office and character, the same power and jurisdiction that authorized the passing of the first order of sale, authorized the passing of this last order of the 21st of September, 1871. — 51 — (Decided 5th December, 1872.) Upon review, of tlie whole record, and finding no error in any of the orders appealed from, we affirm the same, with costs to the appellees, and remand the cause for further proceedings. Orders affirmed, and cause remanded.