73 Ky. 519 | Ky. Ct. App. | 1874
delivered the opinion oe the court.
George N. Smith, a husband and father, was the owner of two lots and improvements thereon, situated in Danville, each of the value of twelve or thirteen hundred dollars, and besides these he appears to have had but little estate of any kind. It seems that prior to 1862 Smith had become involved in an improper intimacy with a Mrs. Taylor, who with her husband resided in Danville. In March, 1864, Smith and his wife conveyed one of the lots to Manwarring for the recited consideration of twelve hundred dollars, and on the second day thereafter Manwarring conveyed the same lot to Mrs. Taylor for the same alleged consideration. At the time the latter deed was made Smith and Mrs. Taylor were present, and Manwarring swears that Smith had previously sold the lot to Mrs. Taylor for twelve hundred dollars, and that she showed him three of the four notes given for the price, and
Mrs. Smith was unwilling to join in a conveyance to Mrs. Taylor, and the conveyance to Manwarring was a fraudulent device to procure the release of her potential right of dower.
In November, 1865, Smith, for the recited consideration of thirteen hundred dollars, conveyed the remaining lot directly to Mrs. Taylor.
Both Smith and Mrs. Taylor having died, this suit was brought by the heirs at law of the former against the surviving husband and heirs at law of the latter to set aside the deeds from Smith to Manwarring and Mrs. Taylor and from Manwarring to her, and to be placed in possession of the two lots.
The plaintiffs, now appellants, sought relief upon three grounds:
First—That, although said deeds recite that the consideration named therein was paid, in truth nothing ^whatever was paid for either lot, and that the only consideration therefor was the illicit commerce and adulterous intercourse then and afterward existing between said Smith and Mrs. Taylor.
Second—That by reason of the adulterous intercourse between Smith and Mrs. Taylor, and long-continued excesses in dissipation, the affections of Smith became alienated from his wife and children so much that he labored under an insane delusion with respect to them; and that from the weakening of his intellect, the estrangement from his own family, and his criminal attachment for Mrs. Taylor, she and her husband acquired an unbounded influence over him, and by the undue exertion of such influence induced the execution of the deeds.
Third—That the deeds were made alone in 'consideration of illicit intercourse between the parties; and that as such intercourse was both prior and subsequent to the deeds,
The answer put in issue the material allegations of the petition, and the circuit court on final hearing adjudged the deed dated in November, 1865, to be canceled, and dismissed the petition as to the deed of March, 1864. Not satisfied with that judgment, the plaintiffs below have appealed, and the children of Mrs. Taylor'prosecute a cross-appeal.
It is insisted, however, by counsel for the appellants that if it be assumed, as we have intimated may be done on the evidence in the record, that no legal consideration was paid
It is assumed, on the authority of section 190, Story’s Equity Jurisprudence, that “courts of equity will grant relief upon the ground of fraud established by presumptive evidence, which evidence courts of law would not always deem sufficient proof to justify a verdict at law.”
This language was used by Mr. Story in discussing the remark of Lord Hardwick, that “fraud may be presumed from the circumstances and condition.of the parties contracting ; and this goes further than the rule of law which is that fraud must be proved, not presumed.”
We can not subscribe to the doctrine attempted to be deduced from the foregoing quotation, to the effect that the chancellor may find fraud as a fact on less evidence or on evidence different from what would be required to authorize a jury to find the same fact. That which will satisfy the mind of one man may not satisfy the mind of another; but the true rule in all courts, without regard to their character, must be to require such legal evidence as will overcome in the mind of the tribunal the legal presumption of innocence and beget a belief of the truth of the allegation of fraud. Any other rule would be calculated to create invidious distinctions between the different courts of the country, and would make the rights of parties depending upon questions of fraud or no fraud to turn upon the accident which brought them into the particular forum, and not upon uniform and known rules of law. Almost every alleged fraud in the innumerable transactions of men
The chancellor, like a jury, must have such evidence as satisfies the mind to a reasonable degree that fraud has been committed before he is justified in finding its existence.
There are circumstances in this case calculated to create in the mind grave suspicions that fraud and undue influence have been practiced, but there is not enough to create a satisfactory conviction of the-fact.
4. The third ground relied upon for relief is that the only consideration for the- deeds was the illicit intercourse between the grantor and the grantee.
It has been, suggested already that there was a valid consideration for the deed of 1864; but as to the deed of 1865 there is no evidence of any lawful consideration except the recital in the deed, and this is overcome by the evidence offered by the appellants to rebut it.
As to the latter deed we are therefore brought face to face with the fact that it was executed in consideration of an adulterous intercourse between the parties, and are asked by the appellants to affirm a judgment ordering it to be canceled on that ground.'
In entering upon the consideration of that question we are at once encountered by the maxim, “In pari delicto potior ed conditio defendentis, ei possidentisThe contract, if based on the alleged adulterous intercourse between Smith and Mrs. Taylor, is nevertheless completely executed, and her children are in possession and need not ask the aid of the court; and
It is insisted, however, that there is a class of cases where transactions or agreements in contravention of' public policy will be relieved against in equity for the reason that the public interest requires it to be done, and the court will serve the public through the individual, although he be a party to the wrong; but it is believed that in the cases where this has been done the decisions were either based upon statutes or have been subsequently disregarded as unsound.
The law, both in this country and in England, now undoubtedly is, in general, where parties are equally concerned in illegal agreements or transactions, whether such agreements or transactions be mala prohibita or mala in se, courts of equity, like courts of law, will not interpose .to grant relief to either. (Story’s Equity, sec. 298; Brookover v. Hurst, 1 Met. 668; Inhabitants of Worcester v. Eaton, 11 Mass. 377; Browning v. Morris, Cowper, 792; Bibb v. Bibb, 17 B. Mon. 307.)
We are therefore constrained to hold that an executed contract based upon illicit sexual ^commerce can not be set aside at the instance of the grantor or his heirs at law, who can not occupy in court a better position than their ancestor through whom they claim.
We have been referred to several cases supposed to sanction a different rule, but we do not so understand them; and if they do, they are opposed by a list of authorities so pointed and overwhelming that we feel compelled to decide in accordance with the authorities holding the views we have before expressed.
Wherefore the judgment is affirmed on the original and reversed on the cross-appeal, and the cause is remanded with directions to dismiss the petition.