Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-04
PROPERLY An
TmPOwTAnT DECISION.
IN

TmPoRTAaT DECISION.
A decision recently rendered BY the Su-
preme Court of the United States is of the
utmost importance to persons whose prop
erty underwent a process of Illegal con-
fiscation and sale while they were absent
and within the Confederate lines. The
history of the case decided by the Su-
prefae Court is stated as follows: 1t ap-
pears that Thompson Dean, of Cincinnati.
was, when the war broke out, owner of
several shares or stock in the Memphis
Gas Light Company. In May, 1851, he
transferred this stock to James H. Pen
per, Secretary of the company, with in
structions to sell it in view of approach
ing hostilities. In June, 1851, MIR. Pep
per sold fifty shares at par (S10O each) to
Thomas A. Nelson, on a note of
hand bearing six per cent. interest
to be gradually paid out of the
earnings of the company. To secure
the ultimate payment of this note, Mel
son executed q mortgage in favor of
Pepper on his interest, thus acquired. in
the Gas Company, to be void on payment
of the note. In July, 1861, Pepper sold
and transferred to Nelson one hundred
and ffty-four additional shares of the
stock of said company, and received a
similar note and mortgage for the amount.
These sales were made under an appre
hension that the stock would he confis
Gated by the Confederate authorities: but
Nelson alleges that they were made in
good faith, and without any pledge on his
part TO return the stock. Nelson continued
to reside in Memphis, and received quart
erly dividends on the stock he held, but
did not and could not make any payments
to Pepper or Dean, who were both within
the Union lines. In June, 1862, Nelson
transferred 1874 shares to his wife, hay
ing previously transferred ten shares
to man named May, both trans
fers seeming to be without material
consideration. Later in June, 1852, the
Federal forces entered Memphis and held
military possession of that part of Tennes-
see until the close of the war. Dean
visited Memphis during the summer and
fall of 1862, and saw Nelson there, but
the latter failed to make any payment on
the notes. In April, 1868, Nelson Was
ordered to remove south of the Federal
lines, and did not return until the close of
the war. In the same month Gen
Veatch, then commanding the military
district of Tennessee, by special order,
established and organized court or civil
commission ''for the hearing and deter
mination of all complaints and suits insti-
tuted by loyal citizens for the collection
of debts, enforcement of contracts.
prevention of frauds, recovery of the
possession of property, and generally to
do whatever can be done by court de-
irving its powers from military authority.
Before this court, Dean sued for the for
fixture and sale of the 204 shares of
stock, TO raise the amount due on Mel
sons notes; and Nelson, his wife, and
May, were made defendants, though they
were returned 'tnot found" Under
| decree of the court the stock was sold
| and transferred on the books of the COM
pany to Hanlin, the purchaser. Hanlin
thereupon transferred to Deen, who
thence forward drew the dividends. In
June, 1855, the appeIlees fled bill in
the case; in which they in substance
prayed that the stock might be decreed to
belong to them, and asking that Dean be
compelled to account for the dividends
received as part payment on Nelson's
notes. The defense. set up was, the
forfeiture of the condition of the
mortgage as absolute, and without bene-
fit Of redemption, and the suficiency of
the proceedings before the civil commits
sion. The appellees, on the contrary, in
sist that the paper was mere mortgage;
that the condition in the notes making the
principal due if the instalments were not
regularly paid, was in sthe nature of
penalty, and should not have been en-
forced in an equitable proceeding; that
the court or civil commission was illegal
and without authority; that it never had
any jurisdiction of the person of the ap-
pellants, nor of the property attempted
TO be foreclosed; that the existence of
the war and the residence of the appel
lees within the Confederate lines, forbade
any illegal proceedings against them or
their property; that, therefore, they have
been Illegally dispossessed of the latter,
and are entitled to haveit restored to them
without conditions; and, finally, that the
| appellant is accountable to them for the
dividends received by him, to be credited
on the notes."
The decision of the court, pronounced
by Mr.. Justice Bradley, all the other
judges present concurring, was to the
following effect:
Gin determining the questions raised
by this record, in the first place, Dean
must be regarded as concluded on the
question of the sale of his stock. Had
the transaction been merely an agreement
for sale upon the terms on which the
sale was actually made, and this bill by
the vendees for specific performance, we
should find great difficulty in distinguish
ing this case from that of Dorsey vs..
Packwood, IL Howard 1876. But here
the sale was actually made, and the stock
was actually transferred to Nelson, so
that, in the absence of fraud, it became
actually his. And, in support of the