67 Ala. 92 | Ala. | 1880
— The facts of this case are very simple. There seems to have been but one disputed- question of fact, and the jury resolved that in favor of the appellees. John Allen, husband of Mary Allen, and Elijah Nolen, brother of the two plaintiffs, were under indictment in the City Court of Eufaula for arson in the second degree — the indictment found in 1874. Clark, the appellant, had suffered by the burning, and although not marked on the indictment as prosecutor, had employed counsel to aid in the prosecution. In June, 1875, the said Elijah Nolen and his two sisters, plaintiffs in this action, together with the husbands of the two sisters, being tenants in common of the lands in controversy, conveyed the same by deed of bargain and sale to Clark, on a recited consideration of four hundred dollars in hand paid ; and Clark took possession, and remained in possession, under claim of right. More than three years afterwards this statutory real action was brought to recover the lands from him. There was proof tending to show, and the jury so found, that the real consideration of the deed was"a composition of said prosecution for arson ; and that in consideration of. the execution of the deed, the prosecution was abandoned, and the indictment nol-prossed. On these facts the Circuit Court charged the jury that the deed was void, and plaintiffs could recover. Elijah Nolen had died before this suit was brought, leaving his two 'sisters his heirs at law.
There can be no question that the composition of the felony, and the dismissal of the prosecution for a valuable consideration, was a highly penal offense, and that all who aided and abetted in its perpetration were participants in the guilt. Any executory contract, or promise based on such consideration, is illegal, and no suit can be maintained for its enforcement. Ex turpi causa, non oritur actio. No one can recover, who, to establish his claim, must trace his right through such illegal transaction. This is common knowledge. Courts can give no sanction to such flagrant violations of the law. Addison on Contr. section 258; 1 Brick. Dig. 381; Collins v. Blantern, 1 Smith Lead. Ca. [161] and English notes; Benjamin on Sales, §§ 503 — 4. The present case arises, however, not on an executory, but on an executed contract. The plaintiffs seek to regain property which they conveyed away by deed, on the ground that the consideration was illegal — ■ a violation of positive law.— Walker v. Gregory, 36 Ala. 179, was a suit to recover slaves which had been conveyed to the plaintiff on an immoral consideration. To establish her
Reversed and remanded.