172 Ky. 255 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
J. R. Fears, the husband of the appellant, Maggie Fears, was the master commissioner of the Henry circuit court and as such was the custodian of about two thousand dollars, which he failed to pay over to the persons entitled thereto, and the sureties in his official-bond were compelled to pay it for him. One of the sureties was I. W. McGinnis, deceased, and. his administrator, the appellee, A. G. Elliston paid of the defalcation the sum of over one thousand dollars. Several months afterward the grand jury found and returned an indictment against Fears, which accused him of the crime of embezzlement growing out of his defalcation as master commissioner. After the prosecution had been continued at one term of the court and another term had arrived, J. R. Fears and his wife, the appellant, Maggie Fears, borrowed seven hundred and fifty dollars from the appellee, the United Loan & Deposit
After the parties had taken such evidence as they desired upon the issues, the action was submitted for trial and judgment and resulted in a judgment in favor of the bank against appellant and her husband for the sums of the notes and the enforcement of the mortgag*e lien upon the house and lot to satisfy them, and a denial of any recovery upon the cross-petition against Ellis-ton, which was dismissed. Prom this judgment the appellant, Maggie Pears, has appealed.
(A) It is insisted that much of the testimony is incompetent and should not be considered, for other reasons. Objections were made to a great deal of the evidence, along, as the depositions were being taken, and written objections were then filed to many questions and answers, and the entire deposition of J. K. Pears. The court did not pass upon any of these objections, nor does it seem that it was ever requested to do so. Section 589, Civil Code, provides that “Errors of the court in its decisions upon exceptions to depositions are waived, unless excepted to.” Hence, if the court had been requested to pass upon the objections to the depositions and had done so, and an exception to the decision had not been taken, the decision would not be a question
(2) Passing* to the merits of the controversy, it appears that -the indictment was returned against J. B. Fears, at the January term, 1913, of the circuit court, and at the April term was continued for a reason, which does not appear, and at the September term it was dismissed. We presume that Fears was arrested before the April term and was under bond for his appearance to answer the indictment thereafter. On the 9th day of September, which was during the September term of the court and probably on the day or the day before the indictment was set for trial, the notes and mortgage sued on were executed. On the 10th day of September, the request of the sureties in the official bond of Fears for a dismissal of the indictment was signed, and'on, the 11th day of September the requests were filed in court and the prosecution dismissed. It is not pretended that any officer or director of the appellee, bank, had any actual knowledge, at the time the loan was made and accepted, of the purpose of the obligors, in the notes, in borrowing the money, or what was intended to be done with it. The place of business of the bank is at Campbellsburg, while the appellant and her family resided at New Castle. Both towns are in the same county, but the distance between them is not shown. It is insisted, however, that H. K. Bourne, an attorney through whom it is claimed the loan was consummated, was an attorney for the bank, and that he had knowledge of the purpose of the loan and what was intended to be done with the money arising from it; that Bourne was acting as attorney for the bank and made the loan for it; that he knew that the money was to be paid to Elliston for the purpose of stifling the prosecution and participated -in the intent to accomplish the unlawful
“If the illegal use to be made of the goods enters into the contract, and forms the motive and inducement in the mind of the vendor or lender to the sale or loan, then he cannot recover, provided the goods or money are actually used to carry out the contemplated design. But, bare knowledge on the part of the vendor that the vendee intends to put the goods or money to an illegal use will not vitiate the sale or loan, and deprive the vendor of all remedy for the purchase money.” ■
■ With relation to the claim by appellant that she was compelled to execute the notes and mortgage through duress imposed upon her, as before said, it is not claimed that appellee, Bank, was in any way responsible or caused any duress, under which she was laboring. The claim is, that the duress arose from the threats and actions of appellee, Elliston, who it was alleged, had threatened to cause her husband, J. B. Fears, to be convicted and confined in the penitentiary, and had employed attorneys to prosecute him for the crime of embezzlement. It is well settled, that duress will not avail as a plea to avoid a contract, unless the .one, who is seeking to enforce the contract or an agent of his, imposed the duress, or that it was done with his knowledge and was taken advantage of by him for the purpose of obtaining the contract. As said in Ely v. Hartford Life Insurance Co., 128 Ky. 808, “Duress by a third person will not avoid a contract made with a party who was not cognizant of it. ’ ’ Long v. Branham, 30 R. 352, 99 S.
The evidence relied upon to show a guilty knowledge and participation on the part of the appellee. Bank, in the transaction, which resulted in the borrowing of the money and the payment of it to Elliston, and which it is insisted constituted a stifling and impeding of the due execution of the criminal laws, is- as follows:
J. R. Fears testifies that some time previous to the finding of the indictment against him, that Elliston came into his office, accompanied by H. K. Bourne, and there requested Bourne to ask him what he, Fears, was going to do about paying the money which Elliston had paid out for him upon his- bond. Fears- answered that he did not know, that he was- not in a condition to pay it then. Elliston then said to'Bourne-, to say to Fears, that unless he and his wife- would give him a mortgage upon her property for one thousand dollars or pay him the money, that he would- indict him when the Henry circuit court should sit. Fears said that he could not pay the money then, but to wait until court convened, and in the meantime it might be adjusted. Elliston then said, “Say to him, that unless I get one thousand dollars or a mortgage or the money secured, that I will indict him, and grief and tears will not avail anything with me.” Fears further stated, that Bourne was Elliston’s attorney, although he does not state any fact or circumstance, other than this, to indicate that such relation existed between Elliston and Bourne. Elliston and Bourne -denied that such conversation occurred, or that anything was said about a mortgage by Fears and his wife, or that Elliston made any threat to indict Fears, or made a threat of any kind. Elliston testifies that he and Fears were not on friendly relations and he requested Bourne to go with him into Fears’ office, for that reason, and because, he would not trust himself to have any conversation with Fears, unless there should be some other person present; that Bourne was not his attorney at all; that he requested of Fears to know whether he intended to repay the sum he had! paid for
These facts do not show any agency for the bank by Bourne in the transaction, and hence the bank was not bound by any knowledge which Bourne may have had in regard to it. Being without knowledge of the claimed duress or of the purpose for which the borrower intended to use the money, its contract cannot be voided either on account of duress imposed upon the appellant
(3) The judgment denying any relief against appellee, Elliston, upon the cross-petition of the appellant, remains to be considered. In considering this branch of the controversy, the position of the appellee, bank, can be entirely eliminated from any connection with it, as the money, when deposited to the credit of the appellant, was her property, and having paid it to appellee, Elliston, can she now recover it from him? As before 'stated, it is contended for appellant, that the only consideration for the payment of the money to Elliston was an agreement by him, in consideration of the payment •to him of the money, to procure the dismissal of the indictment, and thereby to shield the husband of the appellant from the punishment, which he should have received for the commission of a crimo, which, it is to the welfare of the public, should be punished. This character of contract is in contravention of public policy and is void. It cannot be ratified and is unenforceable at the suit of either party to it. According to the contention of appellant, this contract was an executed one, the' money having been paid and the indictment' procured to be dismissed, were all the things to be performed under the contract between appellant and Elliston. The common law rule and the one applied to such transactions is, that where money is paid and personal property transferred in performance of such contract, neither the money nor the property can be recovered, although the other party should refuse to perform his part of the contract, the policy of the law being that the parties being in equal wrong, that a court of equity will not give aid to either of them, but will leave them just as it finds them and in the position in which they have placed themselves. Chapman & Wife v. Haley, 117 Ky. 1004; Central Trust & Safety Deposit Co. v. Respass,
Tbe judgment is therefore affirmed.