Thomas v. Mahone
| Citation | 72 Ky. 111 |
| Parties | Thomas v. Mahone. |
| Decision Date | 23 October 1872 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM FRANKLIN CIRCUIT COURT.
COPYRIGHT MATERIAL OMITTED
J. O. HARRISON, For Appellant.
JOHNSON & BROWN, BRECKINRIDGE & BUCKNER, For Appellee.
JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.
B. G. Thomas, a citizen of Kentucky residing in the city of Lexington, some time in the early part of the year 1862 became embroiled in an unfortunate difficulty with a soldier of one of the regiments of United States troops then stationed at that place, and was finally compelled in necessary self-defense to kill the soldier. The act was held to be excusable by both the civil and military authorities, but the comrades of the soldier were so much incensed that they openly announced their intention to avenge his death, and made repeated attempts to execute their threats. Their officers either could not or would not restrain them, and it eventually became necessary that Thomas should virtually abandon his business to escape the impending danger.
While affairs were in this condition the southern army under General Bragg advanced into Kentucky and occupied the city of Lexington. During its occupation Thomas remained at home; but a day or two after it was abandoned by the retiring Confederates, and before the Federal army resumed possession, he started South; and some time in the month of November, 1862, he, being then in the state of Tennessee, joined the Confederate army.
On the 5th of November, 1862, Rufus Lisle, a creditor of Thomas, brought his suit in the Fayette Circuit Court, and sued out orders of attachment against his property, upon the grounds that he had left the county of his residence for the purpose of joining, and had joined and entered into, and was then in the service of the army of the so-called Confederate States, and that he had removed and was about to remove a material part of his property out of Kentucky, not leaving enough to pay his debts. The real and personal property of Thomas situated or found in Fayette County was shortly thereafter seized by the sheriff.
On the 14th of December James and Mansfield also filed their suit to enforce the collection of certain notes held by them as assignees of Jackson, the payment of which was secured by a vendor's lien on a tract of about one hundred acres of land situated near the city of Lexington, and purchased by Thomas from said Jackson. They also procured an order of attachment upon the alleged ground that their debtor had voluntarily left the county of his residence and gone within the lines of the Confederate army, and there voluntarily remained for more than thirty days. In both these suits the land in question was attached, and in each of them orders of warning against the absent defendant were duly made.
In February, 1863, the two suits were consolidated, and a judgment rendered directing, among other things, the sale of so much of the tract of land already mentioned as might be necessary; the proceeds arising therefrom to be applied, first, to the satisfaction of the lien-notes held by James and Mansfield, and then to the payment of such balance as might remain unpaid on the claim of Lisle after the sale of the personal property. Under this judgment the entire tract was sold, the appellee Mahone purchasing it for the sum of ten thousand six hundred and thirteen dollars. The sale was confirmed, and with the sanction and approval of the court a conveyance to Mahone was executed by the sheriff (who acted as the court's commissioner) on the 17th of June, 1864.
Shortly after the termination of the civil war Thomas returned to his home, and on the 21st of April, 1870, instituted this suit, seeking to have the judgment and sale under which Mahone claims title to the land declared void, the land restored to his possession, and judgment for such amount as might be found due him after an account for rents and improvements should be rendered. He alleges that at the time of the proceedings resulting in the sale of his land he was kept away from his home and prevented from making defense by the lawless condition of the country and the inability of the civil and the disinclination of the military authorities to protect him from threatened assassination; that Mahone, the purchaser of his land, had contributed to bring about the condition of lawlessness then prevailing, and was thereby indirectly responsible for his (appellant's) enforced absence; that the levies of the orders of attachment were as matter of law void, because of the failure of the officer to comply with the law in making them, and because the land was at the time in the actual possession of the military authorities of the United States, and therefore not subject to seizure by the officer of the state court; that the military authorities intimidated bidders and prevented competition at the sale; that this fact was a matter of public notoriety, and was well known to the purchaser, who took advantage of the circumstance to bid in the land for greatly less than its actual value; that the premises were in the actual possession of the military when sold; and finally, that the judgment was void for the want of jurisdiction in the court, it not having power, because of his belligerent character and by reason of his absence within the lines of a hostile government, to bring him before or into court by constructive service.
No appeal was prosecuted from the original judgment nor from the judgment confirming the sale of the land; nor did appellant within five years after either of these judgments enter his appearance and move for a retrial of the issues settled by either, as authorized by section 445 of the Civil. Code of Practice. Nor is this action in the nature of a bill of review. It is in every essential a collateral proceeding, seeking no correction of errors, and asking no relief except that the original proceedings shall be absolutely ignored. Such being the case, it is not necessary that we should direct our attention to any of the grounds set up in the petition which will not of themselves or in connection with others authorize us to conclude that the judgment or the sale, or both, were and are utterly null and void.
That in 1862 the civil authorities of Fayette County were not able to protect appellant from the soldiery, and that the military officers did not afford him protection, is sufficiently proved; yet the hostility toward him seems not to have extended beyond the friends and comrades of the man who had been killed; and it is certain that he remained at home, notwithstanding the apprehended danger, until the command to which these soldiers belonged was compelled to withdraw from Lexington by the advance of the southern troops. He started South at a time when he was in no immediate danger, and when he had no sufficient reason to anticipate the return to Lexington of the hostile soldiers, if indeed they ever did return. But even if prudence dictated that he should secure his personal safety by leaving his home, he could have obtained this security as well within as without the Federal lines. We are constrained to conclude that while he would have preferred to remain at home, if he could have been assured that he would be permitted to do so without further molestation, it was his sympathy for the southern cause, and not fear of the soldiery, that induced him to go South.
Appellant's absence within the Confederate lines was not that character of enforced absence which in the case of Dean v. Nelson (10 Wallace, 158) was held by the Supreme Court of the United States to render void the order of publication by which the civil commission sitting at Memphis attempted to acquire jurisdiction of the persons of Nelson and wife. They had been expelled the Union lines by the military commander and were not allowed to return, and therefore could not have obeyed the order of publication, even if it had been brought to their notice.
There is nothing in the record before us authorizing the conclusion that Mahone was responsible for the lawlessness complained of by Thomas, nor that he personally contributed to bring about that disregard by the military of law and order which it is insisted prevailed in Lexington in 1862 and afterward. This court can not recognize and act upon the idea that there is a general equity growing out of the disturbed condition of Kentucky during the late civil war which converts into trustees those who purchased property at judicial sales during that period. To uphold such a doctrine would be to practically reopen all the litigation settled by the courts during that unhappy epoch in our country's history.
Although the witness Lisle (who was one of the attaching creditors, and who seems to have been the friend of appellant) was induced, by information that he was to be arrested by the military authorities, to leave Lexington on the day of the judicial sale, instead of remaining and bidding for the land as he intended to do, the evidence does not show that his contemplated arrest had any thing to do with the sale, nor that it had the effect of intimidating bidders; nor is there any thing proven tending even remotely to connect Mahone with it.
The return of the deputy sheriff upon the order of attachment sued out by Lisle is to the...
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