74 Colo. 380 | Colo. | 1923
delivered the opinion of the court.
These parties appeared in reverse order in the trial court and are hereinafter referred to as there.
Plaintiff brought replevin to recover thirty-five promissory notes. The jury found in his favor fixing the value of the notes at §2625.00 and charging him with a board bill of §137.92. To review the judgment thereupon entered defendant brings error and prays a supersedeas.
It is undisputed that plaintiff owned the notes in question and was entitled to their possession until he was wheedled out of them by defendant. He alleges in his complaint that they were obtained by undue influence “the nature of which can not with propriety be set forth in this complaint,” and that both prior and subsequent thereto the parties lived together in adulterous relations. He does not further state the nature of said “undue influence” but his pleading, which sets forth much evidence, leaves no room to doubt that it was the relationship above mentioned. Defendant in her answer denies all this and says the notes were a gift to her; that after delivery a dispute arose concerning them, and her rights were thereupon confirmed by a written contract; and that this cause w;as theretofore dismissed by written stipulation and illegally reinstated. The replication denies the gift, alleges that the contract referred to by defendant was without consideration, that the stipulation of dismissal was signed upon defendant’s promise to surrender the notes, and that said notes were originally delivered to her for collection.
The court ordered the case dismissed on the stipulation above referred to and, on plaintiff’s motion, supported by his affidavit, vacated the order. One allegation of said affidavit is that defendant promised, if the case was dismissed, to “resume meretricious relations with said plaintiff;”
The document is further solemnized by an enormous red seal, but whether that be the seal of the plaintiff, or the defendant, or the attorney who drew the paper, there is nothing to indicate.
At the close of plaintiff’s testimony counsel for defendant moved for nonsuit upon the ground, among others, that the consideration for the transfer of the notes was immoral. The motion was overruled. Defendant’s requested
We have been compelled to carefully examine the entire nauseous mess disclosed by this record and agree with the foregoing statement of the trial court. Furthermore we are of the opinion that the consideration, and the sole consideration, for the original delivery of the notes to defendant, for the so-called written contract set up in the answer, and for the stipulation of dismissal, as repeatedly disclosed by the pleadings, expressly testified to by defendant and not denied, and suggested by all the other evidence in the case, was past, present and future illicit relations between the parties. Under such circumstances no recovery could be had. The law is well settled and the authorities practically unanimous. Lanham v. Meadows, 72 W. Va. 610, 78 S. E. 750, 47 L. R. A. (N. S.) 592, and notes.
It is unnecessary, in this jurisdiction, that such a condition of affairs be pleaded. Where the contract or transaction in question is illegal, fraudulent or immoral, and there is mutual misconduct of the parties with respect thereto, neither law nor equity will aid either to enforce, revoke or rescind. To such disputes the courts will not listen and the parties thereto they will leave in the exact position in which they have placed themselves. It is immaterial whether information of such illegality comes from plaintiff or defendant, or is disclosed by pleadings or evidence. Branham et al. v. Stallings, 21 Colo. 211, 40 Pac. 396, 52
For the foregoing reasons the judgment is reversed and the cause remanded to the district court with directions to dismiss the action.
Mr. Chief Justice Teller and Mr. Justice Allen concur.