Clark v. Ticknor

• Decision Date: 31 October 1871
• Citation: 49 Mo. 144
• Parties: WILLIAM G. CLARK, Respondent, v. MYRON TICKNOR et al., Appellants.
• Court: Missouri Supreme Court

49 Mo. 144

WILLIAM G. CLARK, Respondent,

v.MYRON TICKNOR et al., Appellants.

Supreme Court of Missouri.

October Term, 1871.

Appeal from St. Louis Circuit Court.

Geo. P. Strong, for appellants.

I. Unden his general power as military commander of this district, General Schofield, in the emergency which existed, had the power to seize these rents and appropriate them to the public use. The necessity was apparent, and is admitted by the demurrer. The paymet by defendant under this order, and under the compulsion of force, was a discharge of the obligation of his case.

II. The act of Congress of March, 1862, is applicable to such a case, and both in its letter and spirit embraces it, and protects both the officer who seized the rents and the tenant from whom they were seized from an action to recover them. Plaintiff can not recover such property or effects thus taken, either by a direct action, or indirectly by an action upon the covenants of his case. (16 How. 164.)

III. The constitution of Missouri is also applicable, and protects both the officer and the party paying the rents.

IV. The statute of limitations pleaded is a bar.

Glover & Shepley, for respondent.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff commenced his action against the defendants upon the covenants of a lease, alleging that he executed a lease to defendants, dated on the 1st day of February, 1859, for the term of five years, at an annual rent of $3,000, payable monthly; that defendant went into possession of the leased premises, and still holds them, and that he had not paid the rent reserved in the lease for the months of September and October, 1862; wherefore he asked judgment for the same. To this petition the defendants set up five several pleas as a defense, the substance of which was that in 1861 a flagrant rebellion existed in Missouri, and that subsequently martial law prevailed; that General John M. Schofield, commanding the department of Missouri, finding it necessary to raise money to put down the said rebellion, did seize and appropriate the said rents for the two months mentioned, and compelled the defendants by overpowering force to pay the same to the military authorities; they, therefore, pleaded in bar of the action the eleventh article of the State constitution, section 4, and the act of Congress of March 3, 1863 (12 U. S. Stat. at Large, 757). A demurrer was interposed to the answer and sustained by the court, and final judgment was rendered thereon. The...