Jackson v. Baker

85 P. 512 | Or. | 1906

Mr. Chief Justice Bean

delivered the opinion.

1. There is no bill of exceptions. The only question made on the appeal is that the contract between the plaintiff and Hamilton and the defendant, as alleged and set out in the complaint, is illegal and void as against public policy, and ought not to be enforced by the courts. The substance of the complaint is that the defendant agreed for a consideration paid by plaintiff and Hamilton to convey to Draper the legal title to his homestead after he should obtain title thereto from the United States. Such a contract is illegal and void because against the spirit and policy of the homestead law, and will not be enforced by the courts at the demand of either party thereto: Kine v. Turner, 27 Or. 356 (41 Pac. 664); Oaks v. Heaton, 44 Iowa, 116; McCrillis v. Copp, 31 Fla. 100 (12 South. 643); Dawson v. Merrille, 2 Neb. 119; Mellison v. Allen, 30 Kan. 382 (2 Pac. 97); Anderson v. Carkins, 135 U. S. 483 (10 Sup. Ct. 905, 34 L. Ed. 272).

2. If the illegality appears from the complaint or the plaintiff’s case, the court will, at any stage of the proceedings, dismiss the action, although such illegality is not pleaded as a defense, or insisted upon by the parties, and may have been expressly waived by them. It is an objection which the court itself is bound to raise in the due administration of justice, regardless of the wishes of the parties: Oscanyan v. Arms Co., 103 U. S. 261 (26 L. Ed. 539); Buchtel v. Evans, 21 Or. 309 (28 Pac. 67); Ah Boon v. Smith, 25 Or. 89 (34 Pac. 1093); Bradtfeldt v. Cooke, 27 Or. 194 (40 Pac. 1, 50 Am. St. Rep. 701); Miller v. Hirschberg, 27 Or. 522 (40 Pac. 506); Pacific Livestock Co. v. Gentry, 38 Or. 275 (61 Pac. 422, 65 Pac. 597) ; Gullison v. Downing, 42 Or. 377 (71 Pac. 70); Kreamer v. Earl, 91 Cal. 112 (27 Pac. 735).

3. The plaintiff’s counsel seems to think that the parties to this litigation were not in pari delicto; but, as said by Mr. Justice Brewer in a similar case (Anderson v. Carkins, supra) : “We are unable to see any distinction in moral status between the man who contracts for the perjury of another, and the one who contracts to commit such perjury.”

The judgment is reversed, and the cause remanded, with directions to dismiss the complaint. Reversed.