2 Colo. 502 | Colo. | 1875
Whether or not a party to a written instrument may go back of it to show that the consideration on which it rests is illegal, forms a subject on which the decisions of courts are far from uniform. The maxim nemo allegans twrpitudinem suam audiendus, while regarded as inflexible between the parties, is nevertheless made to yield to the interests of public policy, and the duty of preventing the accomplishment of fraudulent and illegal designs. The test prescribed by some courts is, whether the plaintiff requires the aid of this illegal transaction to establish his case (Swan v. Scott, 11 S. & R. 164), and that, if he does not, the defendant cannot set up his own iniquity as a defense. Stewart v. Cramer, 6 Watts, 453. On the other hand, it is contended that the law ought not to interfere to further the ends of the guilty; that, if the contract is executed, it will not be enforced. Smith v. Hubbs, 1 Fairf. 71; Nellis v. Clark, 20 Wend. 24. Courts should be slow to help parties out of the mire who have voluntarily thrown themselves into it, or aid them to reap the wages of iniquity, when their enrichment would be at the expense of public morals. And this aid would be furnished if, after the law has pronounced a deed or contract void, the courts should withhold the power to take advantage of the invalidity, and
Pursuant to this agreement the note was executed, the proceedings on the caveat abandoned, and the land relin quished by Griffin. It is not difficult to perceive that this transaction was immoral and illegal. It was enabling Macon to procure this land through fraud and by an open violation of the law, which required him to reside on and improve the land. When the design is illegal, the law interferes and says : You shall not stipulate for iniquity, and the courts must drop the parties where it finds them. When Hoyt induced Griffin to abandon the contest, he put it in the power of Macon to perpetrate a fraud on the government, and now he cannot be heard when he claims the wages of his prostitution and depravity. It is claimed by the plaintiff in error that it is not shown that Macon was attempting to obtain the land illegally; that no presumptions as to illegal conduct on the part of Macon can be indulged,- and that, before the note can be regarded as void, it must affirmatively appear that Macon was intent on the commission of an illegal act. When one charges another with the commission of a crime, or a violation of the law, and the latter performs an act having directly in view the stifling of the investigation or the withdrawal of the proceedings instituted for the purpose of determining the existence of the offense, this act must be regarded as an admission, on the part of the person doing the act, of the existence of certain grounds for the charge, and in such case the court will place the estimate 'upon the conduct of the parties that they themselves have placed upon
If this were not true, courts would' present the strange spectacle of trying a person for a misdemeanor or felony whenever it became necessary to show that a note sued on was given in composition of a crime, or to suppress a prosecution.
When Hoyt charged Macon with having made a fraudulent entry of the land, through perjury committed by him, and Macon executed the note to avoid an investigation then pending, and threatened to be pressed, he thereby indicated that there was something wrong in his proceedings which required to be covered up.
We think the case at bar is analogous to those cases where notes have been executed to suppress proceedings in courts of justice. A contract, the basis and purport of which is to secure title to land in a manner inhibited by an act of congress, and through the agency of perjury, and to which object the payee contributed by a suppression of the truth, has a tendency to debauch both private and public morals, and cannot receive the sanction of a court.
It cannot be said that this contract involved the compromise of a doubtful right which Griffin might have had to the land. The moving, paramount consideration was the suppression of the investigation of the charges which Hoyt was making, namely: that Macon was attempting to obtain title by perjury and fraud.
It is claimed, however, that the consideration of the note is divisible, and that, inasmuch as Griffin relinquished to Macon the improvements he had made on the land, this relinquishment was a good consideration, and that the action could be sustained. It might be sufficient to say that no evidence was offered showing that the improvements were separately valued, or the price fixed upon them, and the case as it is presented does not fall within the rule laid down in Carleton v. Wood, 28 N. H. 290, where the goods sold were valued separately from the liquors. In that case, however, the recovery was had on the common counts and
Mr. Justice Washington in Toler v. Armstrong, 4 Wash. C. C. R. 299, says:
“I understand the rule as now clearly settled to be, that where the contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it, and if the contract be in part only connected with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it.” This same case is reported in 11 Wheat. 258, and Marshall, O. J., lays down the rule to be, that if the illegal act is not the consideration of the contract, and is entirely disconnected from it, the contract is valid, though the occasion for making the contract arose out of the existence of the illegal act. In the case at bar, the abandonment of the caveat and the relinquishment of the improvements on the land by Griffin constitute one transaction, and are in furtherance of one common design, pursued by Hoyt and Macon, namely, to enable the latter to fraudulently obtain the patent, and acquire the title to the property. Such being the case, we think the entire consideration on which the note rests is tainted. We have said this much as to the merits of the case, notwithstanding no
The judgment of the district court is
Affirmed.