delivered the dissenting opinion of the court.
As the decision of the majority of the court, in this case, involves a question of considerable importance, and has been, unfortunately, so differently viewed by the most respectable judicial tribunals in this country, it is proper that the dissenting judges should state the grounds upon which 'their dissent is based.
. To understand the point involved, it is necessary to state the facts on which the question of law in this case arises, and as it was raised by a demurrer to the petition, the facts stated in the petition ai’e of course admitted.
These facts are, briefly, that the plaintiffs are citizens of Virginia, and had been from the inception of the contract out of which the controversy arose, which was long prior to the war of 1861 — that they continued to be citizens of Virginia during the war, and were still such citizens, domiciled in that State, when this proceeding was instituted. They purchased some land in this county (St. Louis)-in 1857, for which they paid one-fifth of the purchase money in cash, and for the re*452maining four-fifths, executed four notes, respectively payable in One, two, three and four years from date, which date was the 27th of April, 1857. • They received a deed for this land, and to secure the purchase money not paid, executed a mortgage or deed of trust, which authorized the trustees to to sell the same if any of the notes should not be paid, upon a notice of such sale specified in the deed. All the notes were paid, except the last one, which fell due on the 30th of April, 1861. This last payment not having been made, the trustees advertised in 1862, and sold the land in conformity to the provisions of the trust deed.
The petition asserts that, on the 12th of April, 1861, and from that time forward, to the time of the sale, a war was existing between the Confederate States, of which Virginia was one, and the United States, to which Missouri adhered, and that the plaintiffs were citizens of the former, and subject to their laws. They aver that when the note fell due, on the 30th of April, they were ready and willing to pay the same, but were prevented from so doing by said war, and by their continued allegiance to the State of Virginia and to the Confederate government, of which Virginia was a part; that they had no notice of the advertisement, or sale thereunder, and therefore, ask to redeem.
. To this petition there was a demurrer, which was overruled by the Circuit Court, and judgment for plaintiffs rendered thereon. But on appeal to this court, this demurrer is sustained, and the plaintiffs thereby declared to have no ground for redemption.
It will be seen from this statement, that this is not a case of a mortgagor who has died after or before forfeiture, or of a mortgagor who has gone to Japan, or some other inaccessible place, where notices could not be served on him, or of a mortgagor who has left his domicile for any purpose, or of a mortgagor who has gone from the United States to risk his fortunes with the Confederate States, or one who has been expelled from the states supposed to be loyal to the federal government, on account of suspicions of his disloyalty. *453It is the case of a mortgagor who continues to live where he always has lived, so far as the record shows, and where, for aught that appears, he was born. I shall therefore, decline to give any opinion on the cases hypothetically stated — but will confine my opinion to the facts upon which the Circuit Court passed.
The question is very simple : whether a mortgage, or deed of trust, executed by a citizen of Yirginia in 1857, to a citizen of Missouri, which requires the payment of a sum of money on the 30th of April, 1861, is forfeited by a failure to pay the money on that day, and whether the trustee or mortgagee may sell the mortgaged premises, for such failure of payment, occurring after the beginning of war between the countries where the parties are respectively domiciled.
That the war between the United States and the Confederate States attained the dignity of a civil war, and made both parties to it occupy the position of belligerent sovereign-ties, has so often been conceded in the decisions of the highest judicial tribunals of the United States, constituting the judicial department of the government that succeeded, and by the eases cited in the opinion of the majority of this court, that I might be excused from repeating the citations. But I prefer to recall the language of the'courts in those cases, as explanatory of their position.
In Brown vs. Hiatts, (15 Wall., 177). Mr. Justice Field says: “It is unnecessary to goat length over the grounds upon which this court has repeatedly held that the statutes of limitations of the several states did not run against the right of action of parties during the continuance of the civil war. It is sufficient to state that the war was accompanied by the general incidents of a war between independent nations ; that the inhabitants of the Confederate States, on the one hand, and of the loyal States on the other, became there-, by reciprocally enemies to each other, and were liable to be so treated, without reference to their individual dispositions or opinions ; that during its continuance, all commercial intercourse and correspondence between them were interdicted *454by principles of public law, as well as by express enactments of congress; that all contracts previously made between them were suspended, and that the courts of each belligerent were closed to the citizens of the other.”
It may not be inappropriate to quote further from this opinion — which proceeds thus: “As the enforcement of contracts between enemies, made before the war, is suspended during the war, the running of interest thereon, during such suspension, ceases. Interest is the compensation allowed by law, or fixed by the parties, for the use or forbearance of money, or as damages for its detention, and it would be manifestly unjust to exact such compensation or damages, when the payment of the principal debt was interdicted.”
As this case declares the war of 1861 to have been accompanied with the same consequences as followed a war between independent sovereignties, we may with propriety recur to a decision of the Supreme Court of Pennsylvania, in regard to the effect of another war, originating in a rebellion — and a successful one — and which was placed on the same footing with the one to which Mr. Justice Field referred.
In Hoare vs. Allen, decided by the Supreme Court of Pennsylvania, in 1789, (2 Dal., 102) the court say: “ This action is brought on a mortgage for £16,000, payable on 4th Dec., 1774. No suit could be brought, on the mortgage before the 4th Dec. 1775. Before that period the war commenced, and on thé 10th September, 1775, the congress prohibited the exportation of commodities, etc., to Great Britain, or any of her dominions. This was obligatory on their constituents, and it became unlawful to make any remittances after this, to the enemy. During a war, all civil actions between enemies aré suspended; debts are suspended also, but restored by the peace. For the term of seven and a half years, viz: from 10th September, 1775, to 10th March, 1783, the defendant could not have paid this money to the plaintiff, who was an alien enemy, without a violation of the positive laws of this country, and of the laws of nations. They ought not, therefore, to suffer for their moral conduct and their submission to the laws.”
*455. That case is evidently exactly like the present, except that it related to a successful rebellion against Great Britain, on which our independent national existence is based, and may, on this account, be repudiated as inapplicable to the recent war in which rebellion was unsuccessful. It was the ease of a mortgage given by a citizen of Pennsylvania to a subject of Great Britain, and the court declare .that since all intercourse with Great Britain, when the mortgage money fell due, was prohibited by the congress of the United States and by the laws of nations, the failure to pay to the alien enemy did not and ought not to produce a forfeiture of the mortgage, or an exaction of damages in the shape of interest for the non-payment of the principal, at a time when the law prohibited its payment. I am unable to distinguish it, in principle, from this case, and it was decided by a court which historically occupies a very high place in American annals, and the opinion was delivered by Ch. J. McKean, associated with judges Shippen, Yeats and Bradford, a court whose bar contained such names as Sergeant, Ingersoll, Duponceau, Lewis, Bawle, Dallas and Tilghman. And, from a note appended by Mr. Dallas, the reporter (himself not unknown in our judicial and political annals), it appears that Mr. Jefferson, when Secretary of State, in his reply to Mr. Hammond, the British minister plenipotentiary, had maintained the same doctrine with the Pennsylvania court, concurring as it did with that subsequently maintained by the Supreme Court of the United States, as announced by Mr. Justice Field. And, although Mr. Jefferson is chiefly known as a great statesman, he was also a lawyer by profession, anda very learned one, and he maintained the same doctrine enunciated by the Supreme Court of Pennsylvania, and referred to English authorities in support of it, and to the adjudications of New York, Maryland and Connecticut, though he admitted that if the creditor had an agent in this country during the war, to whom the money could be paid, the result might be different. (2 Dall., 104.)
We may quote further from the opinion of the court in that case: “ Interest is paid for the use or forbearance of money. *456Bat in the case before us, there could be no forbearance; be. cause the plaintiff could not enforce the payment of the principal ; nor could the defendants pay him, consistently with law; nor could they pay it without going into the enemy’s country,wheye the plaintiff was. Where a person is prevented by law from paying the principal, he shall not be compelled to pay interest during the prohibition, as in the case of a garnishee in a foreign attachment.”
And the court says further:
“It is urged, that a remittance of bills of exchange furnished the enemy with no money, yet it is clear that it would furnish the enemy with the means of carrying on the war within the bowels of the country without bringing any money into it.”
And in conclusion, Chief Justice McKean says:
“I have searched for precedents, both in the civil law and in the books of reports ; but could find none. We, therefore, determine .on principle and analogy, and are unanimously of opinion, that the plaintiff is not entitled to interest from the 10th September, 1775, to 10th March, 1783.” This was the decision of a court composed of judges eminent for ability and learning, and made just after the close of our revolutionary war with Great Britain. And the same doctrine is maintained by the Supreme Court of the United States during the second war with Great Britain, and is thus stated by Judge Story in the case of the Julia (8 Oranch, 18): “I lay it down as a fundamental proposition, that, strictly speaking, in war all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the exercise of the rights of humanity. I am aware that the proposition is usually laid down in more restricted terms by elementary writers, and is confined to commercial intercourse.” (Bynkershook and Yalin are then quoted.) And this eminent judge then proceeds to say : “From this last expression-it seems thatYalin did not understand the interdiction as limited to mere commercial intercourse.”
*457In the elaborate judgment of Sir W. Scott in the Hoop (1 Rob A. & M., 196), tbe illegality of commercial intercourse is fully established as a doctrine'of national law; but it does not appear that the case before him required a more extended examination of the subject. The-black book of the admiralty contains an article which deems every intercourse with the public enemy an indictable offense. * * * “ But, independent of all authority, it would seem a necessary result of a state of war to suspend all negotiations and intercourse between the subjects of the belligerent nations. By the war, every subject is placed in hostility to the adverse party. He is bound by every effort of his own to assist his own government and.[to counteract the measures of its enemy. Every aid, therefore, by personal communication, or by other intercourse, which shall take off the pressure of the war or foster the resources, or increase the comforts of the public enemy, is strictly inhibited. No contract is considered as valid between enemies, at least so far as to give them a remedy in the courts of either government, and they have, in the language of the civil law, no ability to sustain a persona standi in judicial
The same doctrine is reiterated by Mr. Justice Johnson in the case of the Rapid, 8 Cranch, 155.: “As to the nature and consequences of a state of war, there was really (he said) no difference of opinion among jurists. In the state of war, nation is known to nation only by their armed exterior, each threatening th<e other with conquest or annihilation. The individuals who compose the belligerent States exist as to each other in a state of utter seclusion. If they meet, it is only to combat. The universal sense of nations has -acknowledged the demoralizing effects that would result from the admission of individual intercourse. The whole nation are embarked on one common bottom and must be reconciled to submit to one common fate. Every individual of the one nation must acknowledge every individual of the other nation as his own enemy, because the enemy of his country.”
And the learned and eminent chancellor who reviewed this subject in Griswold vs. Waddington (16 Johns. 482,) says : “I *458think I may venture to hazard the assertion, without any imputation, after the examination which has been given to the subject, that there is no authority in law, whether that law be national, maritime or municipal, for any kind of private, voluntary, unlicensed business,-communication or intercourse with an enemy. It is all noxious, and in a greater or less degree, it is all criminal. Every attempt at drawing distinctions has failed — all kind of intercourse except that which is hostile, and created by the mere exigency of war and necessity of the case is illegal. The law has put the sting of disability into every kind of voluntary communication and contract with an enemy, which is made without the special permission of the government. There is wisdom and policy, patriotism and safety in the principle, and every relaxation of it tends to corrupt the allegiance of the subject and prolong the calamities of war. The idea .that any remission of money maybe lawfully made to an enemy is repugnant to the very rights of war,” etc.
And it may be noted, that Chancellor Kent, in his elaborate opinion in this case, expressly holds, that “ a formal declaration of war is not necessary by the usages of Europe, and war may begin by mutual hostilities as well as by a declaration. * * In the war which occurred between England and France in 1778, the first pitblic act on the part of the English government was the withdrawing of its minister from France, and that single act was declared by France to be the first breach of the peace. There was no other declaration of war.”
These principles are, however, fully recognized by the present Supreme Court of the United States and applied to the war between the Confederate States and the United States.
In the United States vs. Grossmayer (9 Wall., 75), Mr. Justice Davis says: “A prohibition of all intercourse with an enemy during the war affects debtors and creditors on either side equally with those who do not bear that relation to each other. "We are not disposed to deny the doctrine, that a resident in the territory of one of the belligerents may have, in the time of war, an agent residing in the territory of the other, to-whom the debtor could pay his debt in money or deliver to *459him property in discharge of it; but in such case, the agency must have been created before the war began, for there is no power to appoint an agent for any purpose after hostilities have actually commenced.”
In Coppell vs. Hall (7 Wall., 557), Mr. Justice Swayne says: “The payment of money by a subject of one of the belligerents in' the country oí another is condemned, and all contracts and securities looking to that end are illegal and void.” And the cases of Brown vs. 'United States, and the Rapid and the Julia, and the case of Griswold vs. Waddington, are referred to and sanctioned. Upon these authorities, it may be assumed, that the mortgagor domiciled in Virginia could not on the 30th of April, 1861, pay his note due on that day.
Mr. Chief Justice Chase, in the case of Bigler vs. Waller, said: “The actual beginning of the war against the United States, doubtless preceded the proclamation of the President of the 15th of April, 1861, calling out the militia to suppress insurrection; but the proclamation declaring a blockade of the ports of the insurgent States must be regarded as the first foi’mal recognition of the existence of a civil war by the national government. That proclamation was issued on the 19th of April, and that date, therefore', must be taken as the date of the commencement of the war.”
And the facts show (See U. S. Stat. at Large, Vol. 12, p. 1258), that the first proclamation of President Lincoln is dated the 15th of April, and the second on the 19th, and the third on the 27th. Without, therefore, resorting to the opinion of Chancellor Kent, that actual hostilities indicate a war more loudly than proclamations, we may safely conclude, that on the 30th April, 1861, when the last note on this purchase became due, there was an existing war between the Confederate States and the United States, and that Virginia was one of the Confederate States.
The question is, then, whether Mr. DeJarnette Could have paid this note on the 30th of April, 1861; and this question is answered by all the cases I have cited in one way. The mortgagor had n'o right or power to pay the note, and the mort*460gagee had no right to receive it. And the only remaining question is, whether the non-payment of the note, which fell due on the 30th of April, 1861, which the law of nations prohibited the plaintiffs from paying, would authorize a sale and effect a forfeiture of the mortgagor’s rights. The majority of this court have decided that it would, but I cannot concur in this decision either on principle or authority. On principle, I would have great difficulty in apprehending a proposition which would involve the necessity of conceding a forfeiture of right by any one who observed the law of the country in which he was domiciled. I cannot distinguish between the successful and the unsuccessful party.
On authority, I refer to the case of Dean vs. Nelson, (10 Wall., 158.) In that case, Mr. Justice Bradley, in delivering the opinion of the court, says : “the great question in the cause is whether the equity of redemption has been extinguished.”
In considering that question he does not place the decision on any deficiency of power in the court which foreclosed the mortgage; for that court, though established under theprotection of the United States army, was a tribunal for the adjudication of civil cases exclusively, and had no military authority whatever; but he says, “the defendants in the proceeding were within the confederate lines at the time, and it was unlawful for them to cross these lines. Two of them had been expelled from the Union lines by military authority, and were not permitted to return. The other, Benjamin May, had never left the confederate lines. A notice directed to them and published in a newspaper was a mere idle form. They could not lawfully see or obey it. As to them the proceedings were wholly void and inoperative.”
And he concludes thus: “This leaves the equity of redemption in the mortgaged property unextinguished, and it is therefore the right of the appellees to redeem it.”
It will be observed that the decision in this case of Dean vs, Nelson, goes further than it would be necessary on the facts of the present case to hold, in order to sustain the plaintiff’s petition. In that case it appears that one of the debtors *461was within the federal lines, when the money became due, and might have paid it; whereas, in the present case, when the note became due for which the trustee sold, the debtors were in Virginia, subject to the confederate government, and were prohibited from paying by the laws of the country. But the court in Dean vs. Nelson, held the whole proceeding to foreclose a nullity, because the notice required in the mortgage could not be given so as to impart any information to the mortgagors within the confederate lines, and although one of the debtors was within the federal lines, when the obligation matured, and might have paid it, yet as the proceeding to foreclose was commenced and carried on after the expulsion of the debtors into the confederate lines and where no notice of such proceedings could possibly reach them, the right to redeem was maintained and allowed.
This judgment in Dean vs. Nelson was, in my judgment, in conformity to the law of nations, which has been defined as “id quod naturalis ratio inter omnes homines eonstituit,” and emanating as it did from the highest branch of the judicial department of this government,, conceding to the defeated party in the war the same rights in courts of justice that would of course be accorded to those who had the merit of “loyalty,” I am not disposed to abandon it, and I believe that the Supreme Court of the United States have recently reaffirmed this decision in Lasere vs. Rochercau, (17 Wallace, 437).
I can never assent to the proposition that a compliance with and submission to the law will produce a forfeiture. All contracts are made subject to the implied power of the government to which the parties belong, to interfere with them, and to suspend them, and perhaps annul them in time of war. No default can arise from a compliance with the law.
This opinion of the Supreme Court of the United States was followed by the Supreme Court of the District of Columbia in the case of Green vs. Alexander, and by the Circuit Court of the United States for the southern district of New York, in the case of the Kanawha Coal Company vs. The *462Kanawha & Ohio Coal Company, and by the learned judge of this circuit (Mr. Justice Dillon,) and the same principles are maintained in the learned opinion of the Circuit Court of the United States for the western district of Tennessee, in Tait and others vs. The New York Life Insurance Company: In the case of Semmes vs. City Fire Insurance Company, reported in 36 Conn. 543, in an appendix, the district judge, Shipman, made the same decision, which is reported at length, and is, in my opinion,, in accordance with the law and the authorities. This decision was made in 1869, and I quote from it as coming from a tribunal in a State having no sympathy with the southern confederacy, but still willing to adhere to the positions where the jus gentium would lead. Judge Shipman says the replication sets up the late rebellion and alleges that a state of war existed between the organization known as the Confederate States, including the State of Mississippi, and the United States, from the 15th of April, 1861, to the 2nd of April, 1866, whereby it is claimed that this contract and all right to sue upon it was during all that time suspended. There is no allegation that the courts of Mississippi or the national courts in that State were closed for any specific length of time, nor that the plaintiff or his* intestate labored under any personal disability arising out of his actual participation in the war, nor that he was under the control of any vis major, beyond what the law implies from the state of war. The whole question therefore turns upon the legal consequences of the war in their operation oh this contract, and the length of time these consequences continued.
“It is of course conceded that a state of .war, recognized as such by and between the belligerent'parties, suspends all contracts in existence between the citizens of the respective belligerents at the time the war commences. The authorities are uniform on this subject. The general rule is well stated by Mr. Justice Nelson in Prize Cases, 2 Black., 687. The legal consequences resulting from a state of war between two countries at this day are well understood, and will be found described in every approved work on the subject of international *463law. The people of the two countries become immediately the enemies of eacli other; all intercourse, commercial or otherwise, between them is unlawful ; all contracts existing at the commencement of the war suspended, and all made during its existence utterly void.”
“This doctrine has been repeatedly recognized and applied to our late civil war by the courts of this country, both State and National.”
“It is equally well settled that, upon the termination of the war, obligations contracted before its commencement between the respective subjects, though the remedy for their recovery is suspended during the war, are revived.”
“ In Hanger vs. Abbott, and Jackson Insurance Company vs. Stewart, this doctrine was applied to the statutes of limitation. In the former case Mr. Justice Clifford, speaking for the court says: “When a debt has not been confiscated, the rule undoubtedly is that the right to sue revives on the restoration of peace.” And Mr. Chitty says, that, with the return of peace we return to the creditor the right and the remedy; unless we return the remedy with the right, the pretense of restoring the latter is a mockery, as the power to exercise it with effect is gone by lapse of time, during which both the right and the remedy were suspended. ”
“Applying this doctrine to the present .case, it follows that the-war in which the people of Mississippi on one side, and those of Connecticut on the other, participated, suspended the contract with all its incidents, including the condition set up in bar of this action and all rights of action under it.”
“ In view of the result to which I have come, it is unnecessary to determine the precise date of the beginning of the war, when this suspension commenced. It is immaterial whether we take the 15th of April, as stated in the replication — the date of the president’s proclamation calling for volunteers — or the 19th of April, when, by proclamation he declared that an insurrection had broken out in certain States, including Mississippi, and declared his purpose to blockade the ports.”
*464“As the contract and all remedies under it were absolutely-suspended by the war, no suit could have been brought while that suspension continued.”
“I have already shown that by the rules of public law, universally recognized among civilized nations, as well as by the decisions of our own courts, the existence of this war suspended all contracts between the citizens of the respective belligerents, entered into before it commenced. It rendered for the time being, all commercial intercourse between the citizens of the two sections unlawful and converted them into enemies.”
And referring to the proclamation of President Lincoln in August, 1861, the learned judge adds:
“Ey force of this proclamation then, and the statute authorizing it, as well as by the legal effects of the war then existing, all pre-existing contracts between the people of the respective belligerents, including the right to enforce them by judicial proceedings, was thenceforth suspended.”
I am not aware of any peculiarity of'mortgages or deeds of trust which distinguishes them from other contracts for the security of money, so as to exempt them from the operation of the laws of war. Nor can I understand how a trustee or a mortgagee can claim to have more power in passing a title and dispensing with notices, than a court of competent jurisdiction over the subject.
I am therefore in favor of affirming the judgment of the Circuit Court of St. Louis, both at Special and General Term.
And in this opinion Judge Adams concurs.