Dejarnette v. Degiverville

• Citation: 56 Mo. 440
• Parties: DAN'L C. DEJARNETTE, et al., Defendants in Error, v. ARMAND FRANCOIS ROBERT COMPTE DEGIVERVILLE, and MARY VIRGINIA KINGSBURY, his wife, et al., Plaintiffs in Error.
• Decision Date: 31 March 1874
• Court: United States State Supreme Court of Missouri

56 Mo. 440

DAN'L C. DEJARNETTE, et al., Defendants in Error,

v.ARMAND FRANCOIS ROBERT COMPTE DEGIVERVILLE, and MARY VIRGINIA KINGSBURY, his wife, et al., Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Thos. T. Gantt, for Plaintiff in Error relied upon Washington University vs. Finch, Cent. Law Journ., No. 6, 1874.

Trusten Polk, for Defendants in Error.

I. The last of the notes fell due while the war was raging and could not have been paid; and under that state of facts, the law would not allow it to be paid or the holders to receive payment. There was, therefore, no default on the part of the plaintiffs.

It follows, that there was not the presence of the condition upon which the trustee had assumed the obligation to sell the land, and of course he could make no valid sale. The making of the sale was a violation of his duty. Such inability to pay did not exist in the case of Dean vs. Nelson.

In consequence of the war, the plaintiffs being restrained and cut off from all communication with the defendants and the State of Missouri, it was not only a legal, but a physical, impossibility for them to pay the note.

J. E. Drake, for Defendants in Error.

The late war was a public war, not only between the governments, but between their individual citizens, and hence all commercial or business intercourse between persons domiciled in those sections was unlawful. (The Venice, 2 Wall., 258;Mrs. Alexander's Cotton, Id., 404; Mauran vs. Ins. Co., 6 Wall., 1, and cases therein cited; Ouchita Cotton, Id., 521; Hanger vs. Abbott, Id., 532; Coppell vs. Hall, 7 Wall., 542; KcKee vs. U. S., 8 Wall., 163; U. S. vs. Grossmayer, 9 Wall, 72; Bigler vs. Waller, 3 Am. Law Times, 157; McKee vs. Watson, 6 Am. Law Reg. [N. S.], 220; Jackson Ins. Co. vs. Stewart, 6 Am. Law Reg. [N. S.], 732; Cuyler vs. Ferrill, 8 Id., 100; Semmes vs. City Fire Ins. Co., 8 Id., 673; Kanawha Coal Co. vs. Kanawha & Ohio Coal Co., C. C., U. S., South. Dist. of N. Y., June 24, 1870, and cases cited; Dean vs. Nelson, 10 Wall., 158.)

I. From the nature of the case, plaintiff could have no valid notice. A notice to the mortgagor by publication in a newspaper was not legal, and, in a case like the present, proceedings founded thereon were wholly void. A fortiori, this is true in case of a deed of trust, being extra-judicial.

II. It appears from the agreed statement, that the plaintiffs for a long time prior to, during and subsequent to the publishing of said notice, &c., and during the continuance of the late war, were citizens and residents of Virginia, and under the control of the Southern Confederacy.

Even granting that they voluntarily placed themselves in this condition, and went within the Confederate lines, their status in this court is not changed or impaired thereby. The court will not enquire into the personal character or dispositions of the parties herein. (Mrs. Alexander's Cotton, 2 Wall., 404; Com. Ins. Co. vs. Hall, 7 Am. Law Reg., [N. S.] 606; Dean vs. Nelson, 10 Wall., 158.)

As to whether the petition makes a case for equitable relief, the facts there stated speak for themselves. Plaintiffs come into the court with clean hands, having made every offer and used all diligence that could be required of them; and surely a case of such hardship, wrong and injustice rarely occurs in the annals of the law. The case of the Kanawha Coal Co vs. The Kanawha & Ohio Coal Company is unanswerable authority in the case at bar.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 note, 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 Virginia 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, Va. By 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 Virginia 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 proclamation, 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 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 votuntary 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...