56 Tenn. 594 | Tenn. | 1872
delivered the opinion of the- Court.
The bill in this case is filed to set aside a conveyance made by Mrs. Shaw, of a life interest in certain real estate in the City of Memphis. The ground on which the relief is sought, is, that in 1862 or 1863 R. M. Alexander, a brother-in-law of the complainant, and F. Y. Carlile, the husband of the defendant, combined together to defraud the complainant of her property; that in pursuance of this arrangement, Alexander was sent through
The bill charges that Alexander had a secret interest in the purchase, or was to have a large sum-for his services.
■Without enumerating all the allegations of the bill,, it suffices to say, that it raises two questions for our decision. _ The first: Whether the deed was obtained by the fraud, or undue influence of Alexander, in pursuance of the combination charged, and in violation of the duties of any trust relation arising out of his alleged agency, to take charge of the houses, rent them, pay taxes, etc.
The second: Whether the contract and conveyance is void by reason of the fact charged, that Alexander and Carlile were acting in violation of the proclamation of the President of the United States, and the Act of Congress, in going beyond the Federal lines, and making the trade with a resident of the Confederate States — the two Sections being at war.
The only proof of agency existent between Alexander and Mrs. Shaw is, that he had leased one of "the houses for three years from her, at a rent of $600 per annum, and was authorized to rent some wooden tenements on Washington Street, collect the rents, and pay the taxes. We can see nothing in 'this position to prevent or interfere in any way with ffiis acting as agent of Carlile for the purchase of the property — no fraud or undue advantage intervening.
It is not pretended that Alexander did not disclose 'his agency for Carlile, thus notifying the complainant that, so far as the sale was concerned, he was acting in antagonism to her, and for another. We may add, that, if the statements alleged to have been made by Alexander were shown clearly to have been made by him, we could not on this alone set aside the deed, lor the simple reason, that most of them would be but -opinion, and that too of the agent of the party who was seeking to purchase the property, and it would be the party’s own folly to have trusted to his statements under the circumstances; but in addition, so far as any facts are alleged to have been stated, it is not shown in this record, that any word was not true— most certainly it is not shown that all that was said was not honestly believed to be' true.
The next question presented is one on which more ¡or less of difficulty arises, that is, As to the validity
It may be conceded as settled law, that upon the breaking out of a war, all commercial intercourse is forbidden as between the citizens or inhabitants of the respective belligerent countries. “This general rule is. subject to but few exceptions, and these exceptions are-founded on motives of humanity, such as bills drawn by a prisoner in an enemy’s country, and purchased by an enemy, the money going to supply his necessities and relieve his wants — and other well known, cases, that do not break upon the soundness of the-general rule:” See Halleok Int. Law,-359, s. 9 and 11. The principle on which this rule rests is, that a war makes the subjects of the respective belligerents, each, the enemy of the other, and that this relation can. not be modified or changed at the will of individuals. Conceding the rule in its fullest extent, the question recurs, Does it apply not only as between the two-belligerents, and the inhabitants of their respective countries, but also to the case of the territory of one-belligerent invaded by the other and held by military occupation, as enemy’s territory, and governed and controlled by military regulations?
It would seem that on principle it would be clear,, that the general rule had no application as to. intercourse between citizens of the occupied territory, within-the lines of the invading foe, and citizens of the same-
If we have given the correct ground on which the rule stands, that is, the existence or non-existence of the enemy relation, as between the parties, or their governments, thus forbidding, as * has been said, all but hostile intercourse, then the simple question for settlement is, Was Memphis, or any other portion of Tennessee, during the late Civil War, by virtue of simple military occupation, and no more, converted into friendly territory, as to the United States, and its inhabitants made, not only citizens of the United States-absolutely, and relieved of all belligerent disabilities,, but also transformed at once by such occupation into enemies of the rest of the State not thus occupied, as well as the other Southern States engaged in the War?
“Mere military occupation,” says Mr. Halleck, “of a territory by the forces of a belligerent, (without confirmation of conquest by one of the modes recognized in International Law) does not, in general, change the national character of the inhabitants,” — and, he adds “So the inhabitants of territory in possession and under the government of the conqueror, prior to cession or complete conquest for any commercial and belligerent purpose, are considered by other countries as subjects-of the conqueror, notwithstanding that he himself may regard them as aliens, with respect to the inhabitants of his other dominions.” In short, the particular
It is insisted in the bill, that the contract for the purchase of Mrs. Shaw’s life estate in the property was void, as in violation of the Act of
This was merely a matter of policy on the part of the Federal Government; as is shown by the fact, that in March, 1863, another proclamation was issued by the President, in which it was recited, in substance, that embarrassments had grown out of the exceptions contained in the former proclamation, in favor of trade between the occupied territory and the United States, and all commercial intercourse with the Confederate States was forbidden, except by special license — such trade was declared unlawful, and to continue so until
This was so held in the case of the United States v. 100 Barrels of Cement, where the property of a citizen of West Tennessee was held forfeited, because it was sought to be transported from St. Louis, Missouri, to Jackson, Tennessee, without a special license. The same doctrine was held in numerous other cases. We cite the above, because the parties resided in West Tennessee, and it occurred in July, 1862, after the Federal occupation of this portion of our State. (See case, reported in the American Law Register, vol. 3, p. 135.)
We need only, refer to one other fact in support, of this view of the case; i. e. — that Tennessee was held in military subjection and governed as enemy’s-territory, occupied by an invading foe, up to the end. of the War: Andrew Johnson was appointed Military Governor of the State, and thus the State continued: to be governed till the cessation of hostilities, and the-so-called election of Brownlow in 1865.
We conclude, then, that as the question of intercourse between countries, in time of war, is dependent upon the existence or non-existence of the enemy relation between the two places' — -and that as the enemy relation did not exist between Tennessee and the State of Georgia at the time of the transaction, by reason of'
The enemy relation does not cease to exist between the people of such occupied territory and their invaders, simply by reason of the invasion and occupation of the territory; nor is it created by such occupation, as against the people of the territory to which they belonged before the invasion. It is needless to review in. detail the cases referred to by counsel in the argument. We will say, however, that they have been carefully examined, not only in this case, but in previous cases before us, and so far as they hold a doc-' trine different from that laid down in this opinion, we cau not yield our assent to them.
We may.add, that the error, in most of them, consists in applying the rule established between recognized enemies, as to commercial intercourse, to quite a different state of facts; i. e. — to the case of the inhabitants of belligerent territory, temporarily occupied
Upon the authorities, it may well be considered doubtful, whether the rule of non-intercourse, even as-between belligerents, has any application to the conveyance -and transfer of' real estate, situated in one belligerent territory, by a citizen of the other. It is-so maintained by the Supreme. Court of Massachusetts, in a case well considered, upon what «appears to be a careful review of a number of cases, and we are inclined to give the doctrine of the case our approval, and to think its conclusions are sound: Kershaw v. Kelsey, 1 Am. Rep., 154.
Assuming the doctrine contended for by the complainant’s counsel to be correct, as to the question of the illegality of the sale in this case, by reason of the-enemy relation of the parties, there is another ground on which the complainant would, undoubtedly, be repelled from a court — that is upon the principle, that each was equally guilty of the wrong, if any was' committed, and that if no public policy is to be subserved by favoring either party, a court would aid neither,, but leave them to the consequences of their own acts. It is unnecessary to criticise the cases on this question. Upon the assumption of the illegality of the sale, the rule would have an unquestionable application, and be conclusive of the right of the complainant in this case.