The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1869-04-08
In the Circuit COurf Of the Dnlted
States. for the Southern AptSarhca
OF Mississippi.


plainant against the defendants, for the
foreclosure Of n mortgage, executed by the
defendant, II. ID. Smith, on the LIST day OF
May, 1861, 10 secure the purchase money by
defendant TO complainant for the Lauder
dale Springs property, situated In Lauder
dale county. in said Southern District.
The pleadings and proof show the follow
ing facts
Thos. Adams was the owner In fee Of said
property and died intestate; upon his death
the property decended 10 his three minor
children. subject 10 the right of dover Of
his widow, who with her said minor chill
dren, returned 10 Louisville, ky- 70 the
house of complainant, the brother Of the
widow, and uncle OF the minors. 4. III.
Minge IA friend OF the family was requested
10 take out letters OF guardianship from the
Probate Court of Lauderdale county, for
the minor children.,aud 10 procure, decree
from said court. aud sell said property, "a
IL wa. going into dilapidation and waste
being valuable only as a watering place and
summer resort for health and pleasure. The
letters were granted. decree obtained, and
sale made as requested, the purpose being 10
transfer the proceeds To Louisville 70 Dc
placed under the control of the mother OF
the minors, as their guardian. The widow
relinqLished her right of dover before tile
sale. The complainant at the sale became
the purchaser at the price Of $4,000 90; the
sale was confirmed by the court and deed
made by the guardian 10 complainant. In
August, 1850, through said Minge acting AZ
his agent complainant contracted 70 sell
said property TO said Smith for the sum 81
$4,000, payable In three annual Install
ments. with per cent. interest. II was
complainant executed a deed for the lands
and improvements. smith would exc
cute his notes for the payment OF the pur-
chase money. and mortgage on the proper
ty to secure the same. Two deeds were made
which were not accepted FOR alleged
reasons that the acknowledgements we're not
sufficiently attested, one of which was that
the State of Mississippi had ceased to be one
Of the states in the Union. and the acknowl-
edgement should be made and attested as
provided for deeds made In a foreign cOun-
try. \ deed was made In April, 1861, which
WAS accepted and the notes and mortgage
executed by Smith according 10 said con
tract. Smith went into possession inlmedi-
ately upon the making OF the contract and
remained IN possession until October.
1864. when lie sold and delivered possession
To Hulburt, StuTgcs and others; no part OF
said purchase money was paid In any man
ner. until about the time CRATER the sale By
smith. Smith offered 10 pay the notes in
Confederate Treasury notes 10 Leachman
the Attorney employed by Minge Ia prepare
the deeds, and 10 transact the business. The
notes and mortgage were 10 have been sent
10 complainant ut Louisville, ky, but be-
fore il could be done after their execution
intercourse between Mississippi and Louis
Vile became somewhat hazardous, and they
remained In the possession of LeachmAn
without any instructions from complainant
either TO him or Minge, la relation 70 them.
Complainant having engaged actively on
the side ofthe United States in the war then
being commenced between the Confederate
States and the United States, no further
communication was had between complain
ant and Minge or leachman, until after tile
close Of the war.
When the proposition TO pay IN Confed-
crate money was made, Icachman declined
accepting IL. believing that IL would be
worthleas, at least 70 complainant. Smith
threatened that il 10 was not accepted he
would report the debts 90 the Confederate
authorities. and have IL contiscated 30
that complainant would get nothing. Minge
who was the client OF Ieachman directed
him 70 accept il, saying that lac bad full /.
confidence In the success OF the Confederate +
cause and would vest IL Ia Confederate /
bonds or in the purchase OF cotton, and in /
that way save IL for the minor children. /
Upon this instruction Ieachman accepted /
the Confederate notes al par, ana wrote "A .
receipt across the face Of the notes acknowl- F
cdging payment, and that 10 was In full .
satisfaction OF tile mortgage, and delivered .
the notes to Smith, but no satisfaction Of .
the mortgage was entered on the record .
where the mortgage was recorded. The /
Treasury notes received from Smith were .
paid over 10 hinge, or his agent; what dis
position was made Of them by Minge, Is not +
shown, Mngc died soon after the payment h
was made.
soon after llulburt and others purchased
from Smith, they sold the property 20 the
Trustees OF the Orphans Home, "A benevolent
association, and were TO receive In payment
the sum of $4,000 90 in Confederate Urea
sury notes but only paid $1,000 90 In that
currency. The Trustees Immediately went
into possession. having received the bond Of
the Nendors conditioned that a good and
sufficient title should be made upon payment
OF the balance OF the purchase money. Al
ter the close Of the war; Rev Mr.. TcasdAle.
the financial and business agent of the
Orphans Home association was IN the city
OF Louisville making appeals TO the citizens
for aid in support Of the Institution. The
called on him and stated that
he had not received payment for the proper
~, and that the Trustees had best not make
any further payments for the property until /
payment Of the notes giyeu by Smith 20 / {
him. After this interview llulburt and
others, and the trustees, agreed that the .
purchase money should be dis
charged by the payment of $1,000 In {
United States Treasury notes, a part Of {
which was paid. After the complainant ,
had employed cOudsel to bring this suit, the
counsel informed Teasdale, who was stu Z
he agent Of the Trustees, that he was in
'tructed to bring suit TO subject the proper ,
y TO the payment Of the purchase money
iue complainant, ana that the Trustees had {
better not make any further payments 20 I
Ilulburt and others, until the matter was ,
settled. Teasdalo stated, that the Trustees
vere safe, that they had a good bond for !
tile, and would pay the remainder, which {
hey have since done. Smith has been add {
udicated a bankrupt. The bill does not seek
| decree against any Of the defendants, 50 as Y
o render them personally liable. but that i
nay direct, and in default, that the proper -
y be sold, and the proceeds applied 70 the
payment Of the amount due. Four points y
If defence are relied on by defendants.
lst. That the title obtained by COM 2
claimant al the guardians sale Is defective, g
or the reason that no guardian dd Hsm v
vas appointed for the minors, and the re- ~
,ort was not made % the first term Of the
curt after the sale, but TO a subsequent .
erm. -
%. That the notes and mortgage deed IA
veil as the deed from complainant, were
Xecuted after the commencement Of the [
var between the United states and the Con- a
ederate States, and that at the time the !
Complainant was a citizen, and resident Of |,
he state OF kentucky, one Of the States In 4
he Union, and that said smith was a citi- I
en- and resident Of the State Of Mississippi
ne OF the states then engaged in war
gainst the United States, and that accord q
~ TO the law of Nations, all commercial a
Intercourse was then prohibited between 4,
he citizens OF the States OF Kentucky and "
Mississippi. and therefore the contract
ias illegal and void.
81. That the payment made to Leach
IAN, the attorney for Minge, the alleged r
gent of complainant, whether or not by -
omplainants knowledge, or consent, was
evertheless good payment that Is, thatit .
'as complete execution Of the contractand y
ill not now be disturbed, =
4th. That the defendants who hold under V
NTH, are bona dde purchasers without no. ~
zee and cannot be effected by any y
4uities existing between complainant aud -
NTH. These different points OF defence -
ill be considered in the order In which y
hey are stated. >,
lst. The statute does not require IN such :,
use, the appointment Of a guardian al Atcm. ~