111 Pa. 14 | Pa. | 1886
delivered the opinion of the court January 4th, 1886.
In January, 1878, the plaintiffs in error, Alfred Pearce and Sarah J., his wife, for the nominal consideration of one dollar, conveyed the premises in dispute to Henry Goehring upon the following trusts, to wit: “That he shall hold the same for the use of the Harmony Savings Bank, and upon the further trust that if Alfred Pearce aforesaid, or any one on his behalf, shall, within four years from the date thereof, pay to the Harmony Savings Bank, its legal successor or representatives, or to said Goehring as trustee thereof, the sum of $8,000 without interest, then the said Goehring, his heirs, executors, administrators, or successors in the trust, shall convey the said premises in fee simple, clear of all incumbrances, to said Sarah J. Pearce, or to,such other person or persons as Alfred Pearce may direct; and upon the further trust that during the said period of four years the said parties of the first p|rt shall have the use and occupation of the said premises, they to pay the taxes that may be levied and assessed thereon during said period, and keep the said premises in good repair,” with covenant of general warranty, “ except and subject to the trust aforesaid.”
In May, 1879, Goehring, as trustee of the bank, and shortly afterwards the bank itself, conveyed the premises to Mary A. and Jane Wilson, who, after expiration of the four years; brought this action of ejectment to recover possession of the premises.
The parties differ widely as to the nature of the first-mentioned instrument, plaintiffs in error contending it is a mortgage to secure the payment of $8,000 in four years, and defendants claiming it is an absolute conveyance with the right to demand a re-conveyance, provided the sum named be paid within the time specified. Strictly speaking, it is a deed of trust, such as is employed in some of the states for the same purposes that mortgages are generally used here. Under our decisions, it is clearly a defeasible conveyance, or mortgage, reserving to the mortgagors the right to retain possession of the mortgaged property until default is made in payment of the sum for which it is pledged as security. Nothing is better settled than that a conveyance of laud, with an agreement, condition, or stipulation incorporated therein, that the same-
The most that plaintiffs below can claim is that the instrument is a valid mortgage, and they, as assignees thereof, after default in payment within the time stipulated, have a right to the possession of the mortgaged premises, to be held by them until from the net rents, issues, and profits, or otherwise, the sum secured shall be fully paid. Their position, as assignees of the mortgage, is no better than that of their assignors, Goehring and the bank. They purchased with at least constructive notice of the terms on which the property was held. Plaintiffs in error were then in possession. That, as well as the defeasible deed, was notice to everybody that they were mortgagors in possession.
But, it is further contended that the instrument in question, whether it be considered an absolute, conveyance or merely a mortgage, is void, because the controlling consideration for which it was given was the illegal settlement of the indictments then pending against Alfred Pearce and others in the Quarter Sessions of Butler County. That the admitted abandonment of those prosecutions was the moving consideration for the conveyance, is clearly if not conclusively shown b}7 the testimony. It appears that Pearce and others were charged with embezzlement, conspiracy, &c., and at June Sessions, 1877, bills of indictment were duly found, one of which contains four counts, respectively charging them, as officers of the Harmony Savings Bank, with embezzlement, fraudulently making false entries in the bank books, fraudulently making false bank statements, and fraudulently mutilating and
Defendants in error claim that the abandonment of the criminal prosecutions was not the only consideration for the mortgage; that the settlement of the civil action and release of the bank’s claim against Pearce were important factors therein. Doubtless they were, but the mortgage was the price of the formal acquittals, as well as the release ; neither the conveyance nor the consideration therefor is divisible. If any part of either is illegal the whole is void: Filson v. Himes, 5 Barr, 454; Chitty Cont. 992. It is not only an indictable offence to compound a felony, but as a general rule all contracts to abate or compromise criminal offences, of any class, are held void as against the policy of the law, because of their manifest tendency to subvert public justice. Formerly a distinction existed in this respect between felonies and misdemeanors, but it is no longer recognized, except in a few minor offences, the prosecution of which is matter of little or no public interest. In many jurisdictions the distinction between felonies, and misdemeanors is abolished, and in those where it still exists it is regarded as artificial. There are many misdemeanors, the compounding of which militates far more against the public welfare than does the compounding of some felonies. It is more important,'for instance, that conspiracies to murder and to rob, and all treasonable conspiracies, should be prosecuted by the state unswayed 'by private interest, and that private hands should be kept off such pro
It is very evident, from the phraseology of the Act, that it was not intended to apply to misdemeanors of so grave a character as either of those in question, but only to such as are to the personal injury and damage of the prosecutor, and do not specially affect the public. The offences charged in the indictments are of a very high grade, much more detrimental to the common weal than many of the lower grades of felony. As officers of an incorporated bank, chartered in part, at least, for the public benefit, the parties accused occupied a quasi public position. The embezzlement of money entrusted to their care, by those occupying such positions, is a crime of. much more public importance than ordinary larceny. While the fraudulent alteration of the books, mutilation and destruction of the accounts of such an institution, with intent to defraud it and those who have entrusted their money and securities to its care and keeping, is not technically forgery, it is quite as bad, and generally worse, in its far reaching consequences and injurious effects on the public interests. Ever and anon whole communities are startled and public confidence-shaken to its very foundation by the commission of such crimes. To stifle their prosecution for a paltry pecuniary consideration is contrary to public policy, and a mere mockery of Justice in her own temple.
Judgment reversed, and a venire facias de novo awarded.