Willard v. Boggs

• Decision Date: 30 September 1870
• Citation: 56 Ill. 163,1870 WL 6497
• Parties: ELISHA W. WILLARD et al.v.GEORGE BOGGS.
• Court: Illinois Supreme Court

56 Ill. 163

1870 WL 6497 (Ill.)

ELISHA W. WILLARD et al.

v.GEORGE BOGGS.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

The opinion of the court contains a sufficient statement of the case.

Messrs. GOUDY & CHANDLER, for the appellants.

A power of sale contained in a mortgage was not suspended by reason of the residence of the debtor in one of the States in rebellion, during the existence of hostilities in the late war. This is settled under the rule in the case of Mixer v. Sibley, 53 Ill. 61. See, also, Dorsey v. Dorsey, 30 Maryland, 522.

Moreover, the laws of war did not apply at the time of the sale and conveyance in this case, November 5, 1861.

For the purpose of discussing this point, we admit that a war between different nations would destroy the right of a mortgagee to enforce his security against the property of one in the enemy's country. It is a matter of grave doubt whether the international rules of war apply to a civil war, to the full extent. The supreme court of the United States has held that the late rebellion was such a war as authorized the capture of property on sea and land, and that the limitation law of the State was suspended by it. Other courts have extended the rule to other cases. But it is not material in this case to fix the limits on that subject.

It is settled beyond controversy that the sovereign of a nation may apply the laws of war with full vigor, yet he may and does relax them. In a civil war, such rules are only partially applied as the progress of the insurrection requires; they are not to be considered as in full force ipso facto, but only so far as declared from time to time.

The history of the late rebellion in this country illustrates and proves this proposition. First, the government treated the insurrection as existing only among certain persons, and all others were regarded as loyal. Provisions were constantly made recognizing the existence of loyal citizens within the seceding States; they were not treated as enemies. From time to time congress extended more rigorous rules as the exigency demanded, but at no time were all the inhabitants of the States in insurrection treated as rebels.

These doctrines are fully recognized in Allen v. Russel et al., 3 Am. Law Reg. 366; Filor v. United States, 3 C. Claims R. 34; Fairfax Devisee v. Hunter's Lessee, 7 Cranch, 603; Clarke v. Morey, 10 Johns. 69; 3 Wash. C. C. 484.

The government of the United States had not, prior to November 5, 1861, established any rule which would prevent the sale and deed under the provisions of this mortgage. In the case of Allen v. Russel et al., it was expressly decided that a deed made November 29, 1861, by persons in actual rebellion, to a loyal person, of property in Kentucky, was valid.

The proclamation of the president, of August 16, 1861, prohibiting all commercial intercourse between persons in the States in rebellion and those in the loyal States, did not embrace the case of the resort to the remedy afforded by the contract of the parties. Mr. EDWARD S. ISHAM, for the appellee.

The breaking out of war operates to suspend all contracts existing between the residents of the hostile countries; such contracts, and all right to enforce them, are suspended and put in abeyance until the return of peace; interest ceases to accrue during the same period; and by the laws of war all pacific intercourse between the people of the contending nations is absolutely prohibited. Semmes, admr., v. The City Fire Ins. Co., in U. S. Cir. Co. for the District of Connecticut, reported in 2 Chicago Legal News, 17; The Prize Cases, 2 Black, 678; Griswold v. Waddington, 16 Johns. 447; The Rapid, 8 Cranch, 160; The Julia, Id. 193; Hanger v. Abbott, 6 Wall. 535; Wheaton's International Law, by Lawrence, 551, 556.

The rule by which pacific intercourse was interdicted and contracts were suspended had the same force and effect in the late civil war, both by virtue of the general law and by force of the proclamation of the president, as in a foreign war. Semmes v. Ins. Co., before cited; The William Bagaley, 5 Wall. 407; The Ouachita Cotton, 6 Id. 521; Hanger v. Abbott, Id. 535.

In the case of Mixer v. Sibley, 53 Ill. 61, the creditor had invoked the aid of the civil courts. In the case at bar, however, there was no intervention of a court of justice. The holder of the notes and mortgage took his case into his own hand, and advertised the property for sale under a power of attorney. He went through a proceeding deriving all its right from the terms of a suspended contract. By the rules of international law, the debt could not become due while the debtor was absent within the rebel lines. Baylies v. Fettyplace, 7 Mass. 325; Quick v. Sturtevant, 2 Paige's Ch. 91; Hatchett v. Pattle, 6 Madd. Ch. 11; 1 Story's Eq. Juris., § 93. Mr. JUSTICE SHELDON delivered the opinion of the Court:

On the 25th of September, 1857, James Boggs, George Boggs and Redmond Cotter, then residents of Chicago, executed a mortgage to Julius Crane and William P. Apthorp, of certain premises, situate in Cook county, to secure the payment of four promissory notes of even date, each for $1,400, due in one, two, three, and four years.

Cotter afterward conveyed to the two Boggs, and they became the sole owners of the equity of redemption.

The last note having fallen due September 25, 1861, and it and a portion of the third note remaining unpaid, to satisfy the payment of the same, on the 5th day of November, 1861, Willard, the assignee of the notes and mortgage, sold and conveyed the mortgaged premises to George Smith for $300, in pursuance of a power of sale contained in the mortgage, authorizing the mortgagees or their assigns, in default of payment of the notes, or either of them, to sell the premises for their payment, after publishing a notice in a newspaper in Chicago for thirty days. July 14, 1862, Smith sold and conveyed the property to Willard, for $334.

George Boggs left Chicago in May, 1860, and went to New Orleans, where he remained until June, 1862, when the city was occupied by the Federal forces. He soon after returned to Chicago, via New York.

After the sale, Willard took possession of the land, and has held it ever since, and paid all taxes.

James Boggs has acquiesced in the sale, and makes no question as to Willard's title. But George Boggs commenced this suit in chancery, on the 26th day of October, 1868, to declare the sale void as to him, and to permit him to redeem an undivided half of the property.

The court below rendered a pro forma decree as prayed in the complainant's bill.

To reverse the decree, the defendants bring the record here, assigning this decree as error. There is no pretense that the sale and conveyance of the mortgaged premises in this case by Willard to Smith were not in entire conformity with the power of sale...