DeJarnette v. DeGiverville

Wagner, Judge, delivered the opinion of the court. In this case, the petition sets out a purchase by the plaintiffs from the defendants, in the year 1857, of certain real estate in the city of St. Louis, and the giving of notes for the consideration, secured by deed of trust, payable in one, two, three and four years, the last becoming payable on the 30th of April, 1861; a failure to pay the last noté, and a sale by the trustee in consequence on the 9th of June, 1861, after publication of notice as required by the deed of trust. It was alleged, that all the notes were paid except that which matured on the 30th of April, 1861, and that the plaintiffs were ready and willing to pay this also, but were prevented by a state of war existing at that time, between the United States of America, of which Missouri was a part, and the Confederate States, of which Yirginia was a part; and that the plaintiffs were, in 1857 and in 1861, and during the whole of the war which followed, citizens and residents of the county of Caroline, Ya. Ey reason of the war existing, it was alleged, the notice and sale under the deed of trust were fraudulent and void. It was averred, that as soon as peace was restored, the plaintiffs tendered to the purchaser of the land the amount due under the deed of trust, which was refused, and they prayed that the deed made by the trustees under the sale of June 9, 1861 be set aside and annulled. To this petition the defendants demurred, assigning for causes of demurrer, that the petition showed no cause of action; that it appeared that at the time the default was made there was no suspension of intercourse between the citizens of Yirginia and those of .Missouri, and that even when the sale was made under the deed of trust, there was no such suspension, and that there was no excuse for the non-payment of the note of the plaintiffs. The court below overruled the demurrer and gave judgment for the plaintiffs, and the case is brought up for review on writ of error. Whether there was any real or actual suspension of the relations theretofore existing prior to the act of Congress of July 12,1861, empowering the President to prohibit, by pro — 444 — clamation, all commercial intercourse between the rebellious and the loyal States, and the proclamation of the President in pursuance thereof, issued August 16, 1861, I will not stop to inquire. The case has been argued here upon the theory that, at the time the sale took place, Virginia had passed her ordinance of secession, and was out of the Union, and was among the number waging war against the general government. If so, her citizens were entitled to belligerent rights, and were clothed with all the characteristics of alien enemies. Since the decisions in the Supreme Court of the United States in the cases of the Venice, (2 Wall., 258;) Mrs. Alexander’s Cotton, (2 Wall., 404;) Mauran vs. Insurance Company, (6 Wall., 1;) Ouachita cotton, (6 Wall., 521); Hanger vs. Abbott, (6 Wall. , 532;) Coppell vs. Hall, (7 Wall., 542;) McKee vs. United States, (8 Wall., 163;) United States vs. Grossmayer, (9 Wall., 72;) the question must be regarded as settled, that the late war between the Confederate States and the United States was a public war; and a war, not only between the respective governments, but between all the inhabitants of the one territory, on the one side, and all the inhabitants of' the other territory on the other side, so that all the people of each occupied the respective positions of enemies during the continuance of the war. The consequence of a state of war is the interruption and interdiction of all commercial intercourse, correspondence and dealing between the subjects of the hostile countries. Kent says the interdiction flows necessarily from the principle that a state of war puts all the members of the two nations, respectively, in hostility to each other, and to suffer individuals to carry on a friendly and commercial intercourse while the two governments were at war, would be placing the act of government, and the acts of individuals in contradiction to each other. (1 Kent’s Com. 66.) As a corollary of this doctrine the principle is well established that an alien enemy cannot sue a friendly citizen in the courts of the latter’s country. (Bac. Abr. Alien, D.; Alcinous vs. Nigreu, 4 El. and Bl., 217; DeWahl vs. Braune, 1 — 445 — H. & N., 178; Whelan vs. Cook, 29 Md., 1; U. S. vs. 1756 Shares of Stock, 5 Blatch, 231.) His disability is temporary in its nature, and personal, and founded upon reason and policy, and in a great measure upon necessity. But no such reason or policy forbids judicial proceedings against an alien enemy in favor of a friendly citizen, and the rule is therefore settled that while an alien enemy may not sue, he may be sued at law. , The question has frequently been brought up in our courts in regard to matters arising out of the late rebellion, and the adjudications in the courts of last resort have all been in accordance with the principles above announced. In Mixer vs. Sibley, (53 Ill., 61,) it was decided that when a party residing in the State of Illinois, holding a promissory note against a person residing in one of the States in rebellion, in the year 1862, after the act of Congress, and the President’s proclamation prohibiting commercial intercourse between the adhering States and those in rebellion, commenced a suit thereon by attachment, which was levied on real estate situated in that State belonging to the maker, and obtained a judgment, and procured a sale to be made of the premises attached, that the court had jurisdiction of the cause, and the judgment and proceedings thereunder were valid and binding, notwithstanding the defendant resided in one of the rebellious States, and the war at the time was. in active progress. In the case of Dorsey vs. Kyle, (30 Md., 512,) the court holds that a person who, by his own voluntary act, assumed the attitude of an alien enemy to his State, and to the government of the United States, going from Maryland to Virginia during the late civil war, allying himself with the southern cause and joining the confederate army, cannot claim exemption from process of attachment in behalf of antecedent creditors against his property remaining' in the State, on the ground that he was an alien enemy, and that all legal remedies were suspended during the period of hostilities. It is emphatically declared that neither reason nor policy forbids judicial proceedings against an alien enemy in favor of a — 446 — friendly citizen, and therefore while an alien enemy may not sire he may be sued at law. The same question again arose in Dorsey vs. Dorsey, Id., 522, and the same principle was again asserted and re-affirmed. The same con elusion was arrived at in the case of Thomas vs. Mahone, in the court of appeals of Kentucky, (12 Am. Law Reg., N. S., 483.) There the civil code of Kentucky authorized the creditors of a citizen who departed from the county of his residence and remained absent thirty days within the confederate lines, to attach his property and sell the same for the payment of their debts. The plaintiff left his home and joined the confederate service, and while so absent attachments were procured and his property sold, and the court held that the fact that the debtor was a soldier in the confederate army would not deprive the court of jurisdiction under the code. Lindsay, J., in delivering the opinion of the court, pointedly remarks: “It does not follow, because appellant was at the time a soldier in the army of the belligerent power, and that all unlicensed communication with him by the people of the States adhering to the federal Union was inhibited, not only by the laws of war, but by express statute, that resident creditors might not sue him in the courts of this State, and subject to the judgment of their debts .such of his property as might be found within the local jurisdiction of the courts in which he was sued. The right of resident creditors so to proceed against parties indebted to them, residing within the lines of the hostile power, and held to be public enemies by reason of their participation in the southern movement, was recognized by the federal congress in the act of March 3,1863, (2 Brightley’s Digest 1238,) providing for the seizure and confiscation of the property of such persons.” In Crutcher vs. Hord and wife, (4 Bush., 363,) the same court held that a proceeding by a Kentucky creditor to enforce his lien on land situated in that State was not interdicted, notwithstanding the existence of the war and the residence of the debtors within the confederate lines. The Su — 447 — preme Court of the United States in the case of McVeigh vs. the United States, (11 Wall., 259;) after citing Albretcht vs. Sussmann, (2 Ves. and Bea., 324; Bacon’s Abridgment and Story’s Equity RL, § 53,) for authority says: “Whatever may be 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 be sued.” It is contended that the case of Dean vs. Nelson, (10 Wall., 158,) asserts a contrary doctrine. That case was a proceeding within an insurrectionary district, but held by the national military forces, in a court established by military orders alone. It was a proceeding to foreclose a mortgage on personal property, and it was instituted against parties who had been expelled by military force from their residence, and who were forbidden absolutely by the,order which expelled them from coming back again within the lines of the militaty authority which organized the court. They were not voluntarily within the confederate lines, but were sent there against their will, and inasmuch as without their consent and against their will they were thus driven from their homes and forbidden to return by the arbitrary act of the military power, it was held that a judicial decree by which their property was sold during the continuance in force of this order was void as to them. But in the subsequent case of Ludlow vs. Ramsey, (11 Wall., 581,) it was adjudged that the doctrine of Dean vs. Nelson, that a judicial proceeding on a mortgage carried on within the Union lines against a person driven, by way of retaliation for outrages committed by others, outside of those lines, and prohibited from returning within them, did not apply to a person who went and remained voluntarily in rebellion. Such a person could not complain of legal proceedings regularly prosecuted against him as añ absentee. But there is another aspect in which this case must be considered, and which really presents the principal point, and upon which I would have been satisfied to have placed it had not the counsel for the defendants in error, plaintiffs in the court below, insisted in their briefs that the war produced an eh448 tire suspension of all proceedings whatever between the citizens of the respective sides and avoided ail judicial process. The sale was made under a deed of trust containing an agreement that in default of payment when the notes matured, the trustee, upon giving the requisite notice, should proceed to sell the property to satisfy the debt. It contained a power coupled with an interest which was irrevocable in its character, and when the contingency arose calling forth its execution, the trustee was authorized to execute it regardless of the status of the grantors at the particular time. So far as the authority of the trustee was concerned to go on and make a sale of the property in satisfaction of the debt, it made no difference whether the grantors were in the Confederate lines or in the jungles of India, or even if they were dead. It may be conceded that they were in a place or in a condition where it was physically impossible for notice to reach them, hut that would not alter the case, as the notice was not designed to be given for their benefit in the sense of notice to them. It was intended to notify the community that the sale would take place in order that bidders might be present to purchase the property. In the case of Beatie vs. Butler (21 Mo., 313), it appears that Beatie borrowed a certain sum of money, and, to secure its payment, he executed a mortgage, on real estate, containing a power of sale. Before the note was paid off Beatie died, and after his death the mortgagee sold the property. Neither the widow nor children of Beatie were notified of the sale. Afterwards they moved to sot aside the sale, but the court denied the motion, holding that the death of the mortgagor did not extinguish or suspend the power of sale in the mortgage. Scott, J., in writing the opinion of the court, says: “ The argument that the death of Beatie should have suspended all proceedings under the mortgage, in analogy to the suspension of all process of execution under the administration law against the estate of defendants, cannot be maintained. The law may suspend its own process. As it gives the process, it may regulate it. But deeds of trust and mortgages with a — 449 — power of sale, arise from the consent and agreement of parties, and there is no propriety in depriving creditors of the fruits of their foresight and caution. The statute of the 25th of January, 1847, is an answer to the argument. That statute, notwithstanding the death of the grantor, in a deed of trust, recognizes a right of sale in the trustee, though it is postponed for nine months after the death of the maker of the deed. The precise question now under consideration arose in Harper vs. Ely (56 Ill., 179), where the court decided that the remedy of the holder of a mortgage in that State to make sale of the mortgaged premises in case of default, under a power in the mortgage, was in no wise impaired or suspended during the existence of hostilities in the late war of the rebel-' lion, on account of the residence of the mortgagor and his grantee, subsequent to the mortgage, within the rebellious states; and that the rule applied as well to the grantee of the mortgagor, who always resided within one of the States, which, after conveyance to him, joined in the rebellion, as to the mortgagor himself, who, after making the mortgage, left his residence in one of loyal States for the purpose of engaging in hostilities against the government. - The very recent decision of the supreme court of. the United States, in Washington University vs. Finch, reported in the Central Law Journal No. 6,1874, is in point. In that case the facts are that Daly and Chambers purchased of W. G. Eliot in March, 1860, certain real estate in the city of St. Louis, and gave a deed of trust to secure the purchase money. In this deed Ranlett was trustee. The purchasers were citizens and residents of Virginia. Ranlett, as trustee, advertised and sold the premises in December, 1862, after the establishment of non-intercourse between the government and Confederate States. The United States Circuit Court declared the sale to be unlawful because of this non-intercourse, and set aside the deed made by the trustee. The Supreme Court unanimously reversed the judgment, and directed the Circuit Court to dismiss the bill. Mr. Justice Miller, who wrote the opinion, in commenting upon Dean vs. Nelson, supra, said — 450 — that the court had “ never decided nor intentionally given expression to the idea that the property of citizens of the rebel States, located in the loyal States, was, by the mere existence of the war, exempt from judicial process for debts due to citizens in the loyal States contracted before the war.” Upon the merits of the immediate case under consideration, the learned judge remarked: “ The debt was due and unpaid. The obligation which the trustee had assumed on a condition had become absolute by the presence of that condi-' Jion. If the complainants had been dead, the sale would not have been void, for that reason, if made after the nine months during which a statute of Missouri suspends the right to sell in such cases. If they had been in Japan, it would have been no legal reason for delay. The power under which the sale was made was irrevocable. The creditor had both a legal and a moral right to have the power, made for his benefit, executed. The enforced absence of the complainants, if it be conceded that it was enforced, does not, in our judgment, afford a sufficient reason for arresting his agent and the agent of the creditor in performing a duty which both of them imposed on him before the war began. * * * The interest of the complainants in the land might have been liable to confiscation by the government; yet we are told that this right of the creditor could not be enforced, nor the power of the trustee lawfully exercised. No authority in this country, or any other, is shown us for this proposition. It rests upon inference from the general doctrine of absolute non-intercourse between citizens of States which are in a state of public war with each other, but no case has been cited of this kind even in such a war. It is said that the power to sell in the deed of trust required a notice of the sale in a newspaper; that this notice was intended to apprise the complainants of the time and place of sale, and that, as it was impossible-for such notice to reach the complainants, no sale could be made. If this reasoning were sound, the grantors in such a deed, need only go to a place where the newspapers could not reach them, to delay the sale — 451 — indefinitely, or defeat it altogether. But the notice is not for the benefit of the grantor in the sense of notice to him. It is only for his benefit, by giving notoriety and publicity of the time, terms and place of sale, and of the property to be sold, that bidders may be invited, competition encouraged, and a fair price obtained for the property. As to the grantor, he is presumed to know that he is in default, and his property liable to sale at any time, and no notice to him is required. * * * We are of the opinion that the sale by the trustee in the case under consideration, was a lawful and valid sale, and that complainants’ bill should have been dismissed.” This argument, it seems to me, is unanswerable, and is so remarkably clear and satisfactory, that nothing remains to be added. The judgment should be reversed, and the petition dismissed. Judges Vories and Sherwood concur; judges Napton and Adams dissent.