41 Ky. 71 | Ky. Ct. App. | 1841
delivered the Opinion of the Court.
In September, 1836, Lofius Cook filed a bill in chancery against the representatives of John Colyer, (who died in 1832,) for redeeming a tract of land and a slave, Preston, alleged to have been mortgaged to the decedent by the complainant, in the year 1830.
The Circuit Court dismissed the bill without prejudice as to the land, and absolutely as to the slave.
As ‘Colyer’s heirs admitted.nothing in their answer, and no mortgage or other document concerning the land was exhibited, the decree of dismission, without prejudice as to the land, was as favorable to the complainant as he could have expected. .
But the absolute dismission as to the slave was, in our judgment, erroneous.
It appears that the slave had been delivered to Colyer in June, 1830, to work for the use of money which he had loaned to Cook, and for securing which Cook had given him a lien on the slave, as well as on his land— ■that in November of the same year, one- Slaughter, as agent of Cook, executed to Colyer a writing purporting •on its face to be an absolute bill of sale of the slave, for the recited consideration of $424, the slave being then worth, according to the proof, at least $800, and Cook being peculiarly attached to him and having refused about that timó, to sell him for $750—that Colyer was an intelligent man and had great influence over Cook, who looked up to him as a friend and counsellor, and who was, also, an ignorant, reckless, and credulous man, oppressed by debt—that Colyer frequently admitted, be
The exaction of usury and the doubtfulnes at least of Slaughter’s authority to execute an absolute bill of sale for Cook, opened that document to explanation and contradiction by parol testimony. There being neither proof nor presumption that any new consideration, in addition to the loan, was ever advanced by Colyer, a court of equity would not incline to consider the conversion of the mortgage into an absolute sale, as closing the equity of redemption, had the parties intended such transmutation. But it is, we think, evident that there was no such intention as between the parties themselves; and, for the reasons already suggested, the extraneous testimony was admissible for the purpose of showing that a mortgage, and not an absolute sale, was mutually intended.
But it is argued that Cook, as well as Colyer, designed a fraud on the creditors of the former in the ostensible sale of Preston, and that, therefore, being in pari delicto, he cannot be entitled to the aid of a court of equity, which will not help to extricate a party from the consequences of his own voluntary fraud. This is a formidable consideration: but we are inclined to think that it is not conclusively applicable to this case.
The salutary principle of equity, now urged in bar of Cook’s right to relief, should not be extended beyond the reason and policy which dictated it; and it does not,
We are, therefore, indisposed to subject Cook as a suit? able victim to the rule,f“i?z pari delicto potior est conditio defendentiswere we to do so, we should, as we think, pervert the principle to an end inconsistent with its reason and subversive of its just and wholesome policy, and make it an engine for perpetrating, rather than preventing the most pernicious and fraudulent of all kinds of frauds.
We are, therefore, of the opinion that Cook is entitled to redeem the slave, Preston, upon equitable terms—accounting for the $424 as principal, and legal interest thereon, and being credited with the annual money value of Preston’s services to Colyer as a provident and humane man, and opposed to slavery, as he seems to have been.
The lapse of time does not bar the claim to relief, because it does not appear that Colyer ever, held the slave adversely in fact to Cook.
And as the alleged mortgage on the land and lien on the slave seem to have been intended as securities for the
Decree reversed and -cause remanded for such further proceedings and decree as shall b,e proper, consistently with the foregoing opinion.