10 Barb. 369 | N.Y. Sup. Ct. | 1851
Since the decisions of the su- - preme court and the late court for the correction of errors, in Nellis v. Clark, (20 Wend. 24; 4 Hill, 424,) it has been regarded as established law iri this state, that when property is s<?ld for the purpose of defrauding creditors, no action by the payee will lie on a note given to secure the payment of the consideration money. Such contract is illegal and void by statute and at common law. When it is executed, it is binding upon the parties, though void as to creditors; and no action lies by one party against the other to recover back money paid, or property delivered under such a contract. When it is executory, the law will not enforce its performance, nor give damages for a breach of it. Ex turpi contractu non oritur actio. In both cases the law leaves the parties to the fraud where it finds them, and applies the maxim, potior est conditio defendentis.
The note in suit was not made until- about three years after
It did not validate the note to include in it $300 of honest indebtedness. On the contrary, the rule of law is, that where part of one entire contract is void, the whole is void. (Crawford v. Morrell, 8 John. 253. Van Alstyne v. Wimple, 5 Cowen, 162. Story on Prom. Notes, 209, § 190. Robinson v. Bland, 2 Burr. 1077. Bayley on Bills, 514. Scott v. Gilmer, 3 Taunt. 226. Chit. on Bills, 114. 5 Barr, 542. 5 New Hamp. Rep. 196. 6 Id. 225.) John A. Dedriek can still sue for the original consideration of the $300 included in the note, but the plaintiff has no legal claim for it.
I think the defense was admissible against the plaintiff. Two years and three months had elapsed, after the note was made, before it was transferred to the plaintiff. After so great
I think the justice decided correctly at the circuit, and that the judgment should be affirmed.