Pangborn v. Westlake
36 Iowa 546
Iowa
1873
Check Treatment
Cole, J.

— The single question presented by the demurrer is, whether the contract for the sale of a lot in a town or city, оr addition thereto, the plat of which has not been recorded, is void, so that no right of action can be based thereon. Our statute enacts (Rev., § 1027): “ That any person or persons who shall dispose of, or offеr for sale or lease, for any time, any out or in lots, in any town, or addition to any town or city, or any part thеreof, which has been or shall hereafter be laid out, until the plat thereof has been duly acknowledged and recorded, as provided for in chapter él of the Code of Iowa, shall forfeit and pay $50 for еach and every lot or part of lot sold or disposed of, leased or offered for sale.”

There is no doubt that the well-settled general rule is that when a statute prohibits or attaches a penalty to thе doing of an act, the act is void and will not be enforced, nor will the law assist one to recover monеy or property ‍​‌​‌‌​‌​‌‌‌‌‌​​‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌‌​‌​‍which he has expended in the unlawful execution of it; or, in other words, a penalty impliеs a prohibition though there are no prohibitory words in the statute, and the prohibition makes the act illegаl and void. Bartlett v. Vinor, Cath. 252; Lyon v. Armstrong, 6 Vt. 219; Robeson v. French, 12 Metc. (Mass.) 24; Gregg v. Wyman, 4 Cush. 322; Patee v. Greely, 13 Metc. (Mass.) 284; Etna Ins. Co. v. Harvey, 11 Wis. 374; Midland v. Larson, 19 id. 463; Pike v. King, 16 Iowa, 50, and cases cited; Cope v. Rowlands, 2 Mees. & Welsb. 149, and very numerous other eases there cited. But, notwithstanding this general rule, it must be apparent tо every legal mind, that when a statute annexes a penalty for the doing of an act, it does not always imply such a prohibition as will render the act void. Suppose, for instance, the act itself expressly provided that the penalty annexed should not have the effect ‍​‌​‌‌​‌​‌‌‌‌‌​​‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌‌​‌​‍of rendering the act void. Surely in such case the сourts would not give such force to the legal implication, under the general rule above quoted, as to *549override the express negation of it in the statute itself. Then, upon this conclusion, we are prepаred for the next step, which is equally plain, that if it is manifest from the language of the statute, or from its subject-mattеr and the plain intent of it, that the act was not to be made void, but only to punish the person doing it with the penаlty prescribed, it is equally clear that the courts would readily construe the statute in accordancе with its language and its plain intent. ¥e are, therefore, brought to the true test, which is, that while, as a general rule, a penalty implies a prohibition, yet the courts will always look to the language of the statute, the subjeсt-matter of it, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be acсomplished in its enactment; and if, from all these, it is manifest that it was not intended to imply a prohibition or to rendеr the prohibited act void, the courts will so hold, and construe the statute accordingly. The following casеs will abundantly vindicate, as well as illustrate this statement of the law. Ferguson v. Norman, 5 Bingham’s New Cases, 76 (opinion of Tindal, ‍​‌​‌‌​‌​‌‌‌‌‌​​‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌‌​‌​‍C. J., p. 83); S. C. in 35 E. C. L. Rep. 51 (i. e. 55); Harris v. Runnels, 12 How. (U. S.) 79; Johnson v. Hudson, 11 East, 180; Brown v. Duncan, 10 Barn. & Cress. 98; Hodgden v. Temple, 5 Taunt. 181; Fockler v. Ford et al., 24 How. (U. S.) 322; The Oneida Bank v. The Ontario Bank, 21 N. Y. 490 (see opinion by Comstock, C. J., on p. 495).

Wе are relieved from the necessity of making an analysis of and construing our statute as an original interpretation of it, because our statute above quoted, like our general municipal incorporatiоns act, was taken from the Ohio statute, and is essentially the same as that. See Swan’s Rev. Stat. of Ohio, Derby’s editiоn 1854, § 10, p. 940. Prior to our adoption of that statute, it had received a judicial construction by the supreme court of that State, and it was held that the penalty did not render the contract illegal, so as to prevent a recovery by the vendor of the consideration agreed to be paid by the vendee, for a lоt sold him prior to the proper survey and making and recording of the plat. Strong, etc., v. *550Darling, 9 Ohio, 201. And it is a well-settled rule that when the legistature of one State adopts a statute from another which has received judicial construсtion there, such ‍​‌​‌‌​‌​‌‌‌‌‌​​‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌‌​‌​‍construction will be presumed to have been known to and approved by the legislature, and will he followed by the courts of the State adopting the statute. See Bemis v. Becker, 1 Kan. 226 (i. e. 249), where the rule was appliеd to a statute like the one now in question. Under this rule we must hold that the note and mortgage in this case are not illegal and may, therefore, be enforced.

There are two cases in Missouri, to which our attention ‍​‌​‌‌​‌​‌‌‌‌‌​​‌​‌‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌​‌‌‌​‌‌‌​‌​‍hаs been called, construing a statute similar to ours: Downing v. Kinger, 7 Mo. 585, and Mason v. Pitt, 21 id. 391. In the former, and apparently without much investigation, it was hеld, under the general rule first above stated, that the penalty rendered the contract illegal, and that thе vendor of a lot in an unrecorded plat could not, under the Missouri statute, recover from the vendee the consideration agreed to be paid therefor. In the last case it was held, that the failure to rеcord the plat, prior to the conveyance, did not prevent the title from passing to the vendeе. The Kansas court, in Bemis v. Becker, supra, followed the last, without referring to the former.

JBut, further than this, the question has been, in effect, determined by this court in Watrous & Snouffer v. Blair, 32 Iowa, 58, where it was held, that the vendеes of certain lots, having, as in this case, actual knowledge that at the time of their purchase the plat had not been recorded, were entitled to a specific performance, by their vendor, оf their contract of purchase. Surely, we could hardly be expected to compel a vendor to convey, and then to deny him the right to recover the consideration for such conveyance. In that ease we required the conveyance to the vendee; in this, we enforce the payment by the vendor.

Affirmed.