Tortoriello v. Seghorn

• Decision Date: 12 March 1918
• Docket Number: No. 44/561.,44/561.
• Citation: 103 A. 393
• Parties: TORTORIELLO v. SEGHORN et al.
• Court: New Jersey Court of Chancery

103 A. 393

TORTORIELLO

v. SEGHORN et al.

No. 44/561.

Court of Chancery of New Jersey.

March 12, 1918.

Suit for specific performance by Rocco Tortoriello against Anna Louise Seghorn and others. Decree for complainant.

Samuel Herman, of Newark, for complainant. Louis J. Beers and Edward A. Schilling, both of Newark, for defendants.

FOSTER, V. C. This is an action to compel the specific performance of a contract for the sale of certain real estate on Warwick street in the city of Newark, where all the parties reside.

The facts in the case are undisputed. Defendants, however, refused to perform their contract and convey the premises in question to complainant, because they claim they are advised that to do so would make them subject to the penalties of fine and imprisonment imposed by the act of Congress, approved October 6, 1917, and known as the "Trading with the Enemy Act," as they are not citizens of the United States and were born in the German Empire, and are considered subjects of that country, with which this country is at war; and they further claim that they have been advised that byreason of their German citizenship they are considered alien enemies, and are not permitted under the act to complete their contract, and convey their property.

The word "enemy" under the Trading with the Enemy Act is defined therein as follows:

"Sec. 2. (a) Any individual, partnership or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory.

"(b) The government of any nation with which the United States is at war, or any political or municipal subdivision thereof, or any officer, official, agent, or agency thereof.

"(c) Such other individuals or body or class of individuals, as may be natives, citizens, or subjects of any nation with which the United States is at war, other than citizens of the United States, wherever resident or wherever doing business, as the President, if he shall find the safety of the United States or the successful prosecution of the war shall so require, may, by proclamation, include within the term enemy.'"

Defendants and those advising them assume that because they were born in Germany and are subjects of that nation, they are therefore to be regarded not only as aliens, but as alien enemies, under the terms of the Trading Act; in fact, they assume that every native, citizen, or subject of a nation with which we are at war is classed as an enemy. There is nothing in the act, however, to warrant this assumption. As the defendants are resident of this state, and as neither of them, so far as the record discloses, is an officer, official, or agent of Germany, or of any political or municipal subdivision thereof, they do not therefore come within the congressional definition of the term "enemy" set forth in the above-quoted paragraphs (a) and (b). If they are to be brought within the prohibition of the act, it must be under the provisions of paragraph (c); and they can only be brought within the description of an "enemy," under this paragraph, by virtue of the proclamation of the President. The only...