7 Mass. 76 | Mass. | 1810
The issue in law before us is on the sufficiency
It appears from the allegations of the demandants, that they were never seised in fact of the premises, but only of the right, as Bussey, on the death of their father, abated them. But this right could not pass by their conveyance to Dunbar, because the law will not permit any person to sell a quarrel,
But it was said, in the argument, that the replication discloses facts confessed by the demurrer, which avoid the release as a fraud on Dunbar, for whose use the action is sued. If the release is shown to be fraudulent, it will have no legal operation in favor of the tenant, a party to the fraud. The facts thus disclosed are the prior deed executed to Dunbar, the suing the action for his use, and the knowledge thereof by Beaumont. Now, this knowledge of Beaumont can have no tendency to give any legal effect to the deed to Dunbar, the demandants’ right still remaining, not conveyed nor extinguished ; for the deed being void, as a conveyance, no collateral transaction whatever, under any circumstances, can give it any operation to pass the right. The demandants thus having a right which could pass by release to Beaumont, might regularly pass it, and were not estopped by any principle or maxim of law. The knowledge of Beaumont of the deed to Dunbar, as it cannot, on the one hand, give validity to that deed, so neither on the other hand can it defeat the release to himself.
The transaction between the demandants and Dunbar was pro hibited by law,
*Let an entry be made, that it appears to the Court [ * 79 ] that the replication is bad and insufficient in law.
[Swett & Al. vs. Poor & Al., 11 Mass. Rep. 549. — Brinley vs. Whitney, 5 Pick 348.— Wolcott & Al. vs. Knight & Al. 6 Mass. Rep. 418.—Ed.]
1 Hawk. P. C. c. 86.