Ludlow v. Ramsey

APPEAL from the Circuit Court for the Eastern District of Tennessee, the case being thus:

The code of Tennessee of 1857-8, under its chapter on 'Attachments,' enacts that a plaintiff after action for any cause has been brought may, when the sum claimed exceeds $50, on giving bond, &c., sue out an attachment at law or in equity against the property of a defendant in the following cases:

'Where he is about to remove or has removed himself from the State.

'Where he absconds or is absconding or concealing himself or property.'

The code continues:

'In order to obtain an attachment, the plaintiff, his agent, or attorney, shall make oath in writing stating the nature and amount of the debt or demand, and that it is a just claim.'

Subsequent sections provide for notice of the attachment by publication, declaring that the attachment and publication are in lieu of personal service.

With these provisions of the code in force, Mrs. Cynthia S. White, having a suit pending against one Ramsey, applied, September 18th, 1863, to the State Chancery Court at Knoxville, Tennessee, for an attachment against a portion of the said Ramsey's property. The affidavit filed was thus:

'Your orator, Cynthia S. White, a citizen of Knox County, respectfully represents unto your honor that she holds a bond on J. G. Ramsey, dated July 17th, 1860, payable six months after date, with lawful interest from date, for $300, a copy of which note is hereunto appended, the original of which shall be produced in the final hearing of this cause. Your orator shows that the said Ramsey has left this State, or so conceals himself that the ordinary process of law cannot be served upon him. He was the owner of a considerable estate, both real and personal, in Knox County. The premises considered, your orator prays that the said J. G. Ramsey be made a party defendant to this bill; that process of subpoena and attachment issue, and that a sufficient amount of said estate be attached to satisfy your orator's demand. She prays for publication, and, on the final hearing, she prays for the sale of said property, and for an account, if necessary.'

A copy of a note, such as was described in the affidavit, was annexed to it, but as the reader will have observed, nothing is said in the affidavit as to the justness of the debt to secure which the attachment was prayed for.

Having given the requisite bond an attachment was issued, and a house and lot in Knoxville, belonging to Ramsey, was duly attached, as appeared by the sheriff's return to the writ, no personal property being found. At the January rules, 1864, order of publication was made in the Knoxville Whig, a newspaper published in Knoxville, to notify the defendant to appear on the first Monday of April, 1864, and make defence, or that judgment would be taken pro confesso against him. In October Term a decree was rendered for the amount of the debt, and directing the master to sell the property attached. The master duly advertised it for sale, and bid it off, January 3d, 1865, to one Vail for $5100. The sale was reported to, and confirmed by, the court, and a writ of possession was issued, but was opposed by persons occupying the premises. Subsequent proceedings, however, were taken, which finally resulted in putting Ludlow into possession, he having purchased the property of Vail.

Ramsey now filed a bill (subsequently amended) in the court below against Ludlow, to set aside the sale thus judicially made of the house and lot, and to recover the rents and profits. His allegation was that the property was sold for $5100, a sum which was not more than half its value, to pay a claim of $332; that he had another house just beside the one sold of less value than it, and two farms not far off, a limited number of acres of which might have been sold; all of which the sheriff certainly knew of; that he himself knew nothing of the institution of the suit until long after the sale was made, and the decree confirmed.

He alleged further, that the proceedings by which the property was sold were null and void. Referring to the publication in the newspaper at Knoxville, giving him notice to appear and defend the original suit, or that judgment would be taken pro confesso against him, his bill alleged that he left Knoxville shortly before the Federal troops arrived; that at the time when the attachment was sued out, and when the publication was made, he was in no situation to see or know of the same; that Tennessee was held by Federal troops, and he in the country held by the Confederate troops; and that no newspapers that were published within the Federal lines were allowed to be sent into the Confederate lines; that there were no mail facilities between them, and the only communication was by a flag of truce; that a great civil war was raging between the confederate government and the United States, and martial law existed in the State of Tennessee, and civil courts were only held by the will of military commanders. In his amended bill he alleged that when the attachment was issued, and the proceedings had, he was known to be one of the enemy of the party governing by arms the locality of the court, and that it was known that he could not have notice of the suit, could not appear at the court, and could have no communication with others at the place of the court, &c.

The bill further set forth that in September, 1864, the United States seized the property in question as forfeited, and in October of the same year filed an information against it; that Mrs. White had asked and obtained leave to intervene, and did intervene in December, 1864, prior to the date of the sale under the attachment, and it charged that by filing the said intervention in the District Court, Mrs. White had virtually abandoned her attachment suit in the Chancery Court, and that she relied upon having her debt made in the District Court, as provided by the act of Congress which authorized the seizure; and that these proceedings in the District Court gave the United States a prior lien upon the property, the same as if it had been seized by the United States prior to the issue of the attachment bill in the Chancery Court, and that the Chancery Court had no authority to proceed with the sale of the said property, and have the sale confirmed after the said proceedings had been commenced in the District Court of the United States.

As respected the facts it seemed that the property was estimated variously from $6000 to $10,000; that the complainant had another house and lot close by of less value, and a farm; that he had been engaged in rebellion against the United States, and on that account had left Knoxville, the place of his residence; and though no record of the proceeding in the District Court for forfeiture was produced, it was yet admitted by the defendant that the mere facts of seizure, information, and intervention alleged, were correctly alleged, but it appeared also that Ramsey produced to the District Court a pardon from the President for his complicity in the rebellion, and that the proceedings being thus ended, the purchaser under the attachment obtained possession of the property under a writ of possession issued from the Chancery Court of the State.

The court below held that, 'for want of a sufficient affidavit,' the attachment issued at the suit of White was insufficient; that the Chancery Court of the State acquired no jurisdiction; and that all the proceedings therein 'were null and void,' and that as they had no other effect than to throw a 'cloud' upon Ramsey's title, the removal of it the court regarded as ground for jurisdiction and relief, and granted the relief prayed for. Ludlow accordingly brought the case here.

Messrs. Lander and Moore, in support of the decree:

The case is one of such extreme hardship that the court will scan with eagle eyes the regularity of the proceedings by which the title set up is sought to be maintained. A valuable lot in Knoxville, worth more than thirty times the amount of the debt due to White, was levied on when there were other pieces of property not a stone's throw from it far less valuable; yet abundantly sufficient to pay the debt, notoriously known to be the property of the appellee. Yet this valuable piece of property was levied on and sacrificed. Now we say:

1. The affidavit upon which the attachment was obtained, does not meet, in form or in substance, the requirements of the law as expounded in numerous cases. The language of McKinney, J., in one of them, Thompson v. Carper, has been often cited, and seems conclusive of the case.