53 Ark. 147 | Ark. | 1890
The appellant had advertised for sale, and was about to sell, lands of the appellee, under the power contained in two mortgages purporting to have been executed by him and his wife to secure the payment of certain notes therein described.
One mortgage bears date March 15, 1886, and recites-that it was given to secure one note given for borrowed money and six notes for the interest thereon. The other is dated December 8, 1886, and was given to secure the same notes, except one interest note which had been previously satisfied. The appellee’s son paid it.
The appellee brought this suit to cancel both mortgages, and to restrain a sale under them.
The complaint alleges that the prior deed and the notes therein described are forgeries, and that the plaintiff was entirely ignorant of their existence until the day that he ex-cuted the latter deed; that appellant’s agent visited his residence on the 8th day of December, 1886, for the purpose of obtaining the deed and notes of that date; that Manguir showed him the forged instruments, and told him they ha been forged by his son, J. E. Watson, and that he had thereby obtained the amount of money therein indicated; that he Mangum, only wanted the money secured, and if that wa done, the liberty and good name of the son would be saved but that, if it was not done, he would be vigorously prose cuted and sent to the penitentiary and would lose his standin .at the bar and in society; that, in order to prevent the prosecution and ruin of the son, the deed of trust and notes, all of which Mangum brought ready for signature, were executed, .and the deed acknowledged before a justice of the peace, who had accompanied Mangum for that purpose.
The appellee testified that the only consideration for the deed and notes was Mangum’s promise not to prosecute his son.
The court found that the material averments of the -complaint were true, and that the deed and notes executed by appellee on the 8th day of December were void because they were made upon an illegal and invalid consideration; and it decreed that the appellant should surrender for cancellation said deed and notes, and be forever enjoined from selling the land or collecting the notes.
From this judgment the appellant has appealed. He insists that the first mortgage and notes were executed by the appellee and are valid, and that the second mortgage and notes were given as a further security for the first, to remove all doubts as to their validity. He asked no affirmative relief in his answer, and we have not considered what- his rights would be if he had done so.
The evidence shows that the appellee did not execute the mortgage of March 15th, and fails to satisfy us that he was a party to a conspiracy to obtain money by means of it. As the deed was forged, the appellee is not estopped to set it up, although the son obtained money upon the faith of it and loaned a portion of it to him, unless he participated in the illegal acts. A sale under the power in that deed would ast a cloud on the appellee’s title and was properly -estrained.
The question whether the appellee, on the case made y him, is entitled to any relief as against the latter mortage and notes, -is not free from difficulty. His case in ■ffect is, that his son had forged a mortgage, on the faith of which he had obtained money from the appellant; that appellant desired to obtain security for that money, and appellee desired to suppress the criminal prosecution of the son; that appellant proposed to appellee, that if he would execute the mortgage and notes tendered, appellant would not prosecute his son; that the proposition was accepted, and the papers executed and received accordingly; that the son was prosecuted through other agencies, and the appellee at no time sought to withdraw from the compact or to recover the securities given in pursuance of it, until the sale was advertised —an interval of over two years — and never released the appellant from his promise except as it may be implied by bringing this suit.
Upon this state of case can the appellant invoke equitable relief?
Mr. Story, treating the subject as to the rights of partie, to such an agreement, states the law as it is generally ap proved: “The general rule is, that where an illegal contract has been made, neither courts of law nor of equity will interpose to grant any relief to the parties, but .will leave them where it finds them, if they have been equally cognizant of the illegality.” 1 Story, Con., sec. 486; 2 Par., Con., 74-6; 2 Ad., Con., pp. 715-24; 1 Pom. Eq., sec. 402.
There are some exceptions to the rule, where the contract is malum prohibition, as also where public policy is considered as advanced by allowing the parties or the less culpable one to sue for relief; but it is not material to consider the exceptions now, for cases like this have been considered to fall within the general rule.
In the case of Atwood v. Fisk, 101 Mass., 363, Atwood sued to compel the surrender and cancellation of the notes and a mortgage given to secure' them, on the ground that they were given upon the consideration that the defendant would not prosecute him for a felony. The bill was dismissed because the plaintiff was not in a position to claim the equitable relief prayed for.
Compton v. The Bunker Hill Bank, 96 Ill., 301, is a case in which a wife sought to cancel a conveyance executed by her to the defendant in consideration of its promise not to prosecute her husband for embezzlement; the court reviewed the authorities and concluded that the bill should be dismissed, saying, “But though the deed may be void for such reason, equity does not relieve the party who executed it upon or for such illegal and immoral consideration and purpose.”
We might add many citations to the same effect: Allison v. Hess, 28 Iowa, 389; Inhabitants etc. v. Eaton, 11 Mass., 377; Smith v. Rawley, 66 Barb., 503; Swartzer v. Gilett, 1 Chand. (Wis.), 207.
The judgment will be reversed, and a judgment rendered here cancelling the mortgage of March 15, 1886, and enjoining any sale under it, but no relief will be given as against the second mortgage.
