Shuman v. Shuman

| Pa. | Jul 1, 1856

The opinion of the court was delivered by

Woodward, J.

This’ issue was sent from the Orphans’ Court into the Common Pleas, to try the single question of fact whether the deed of Jacob Shuman to his son Isaiah, dated 12th March, 1847, was delivered in the lifetime of the grantor. The will of the father, made nearly two years before the date of the deed, was offered, and admitted in evidence on the part of the defendants, and this is the first error of which the plaintiff complains.

The will, which did not take effect until the death of the testator, could not, of course, countervail the' deed if duly delivered, and the court guarded it against any such effect, by appropriate observations; but we think it was proper that the jury should understand how the issue arose, and what was the relation of the parties to the estate of the deceased father, and for these purposes the will was properly admitted.

The only remaining error relates to the instruction of the court upon the effect of a delivery of a deed on Sunday.

It was in direct proof, as well by a written endorsement on the deed, as by the testimony of Mann, that it was delivered on the 2d January, 1848, which was Sunday; and the defendants called on the court to say that a delivery on Sunday was not sufficient to pass the title. The question in the cause became, thus, one of law rather than of fact.

The opinion of the court on this point was expressed as follows:

“ 2d. That if, under the evidence of Mann and the almanac, the jury should find the deed to have been delivered on Sunday, whether it would be valid: we say that if the case depended on this point alone, we should agree with the counsel of the defendant, that the delivery of a deed, being a material part of its execution, on Sunday, as the conclusion and execution of a contract, would be contrary to law, and voidable by the parties: but the evidence is that old Mr. Shuman did not die until Monday or Tuesday following, and we are of opinion that if the deed, maide apparently perfect by signature and acknowledgment, was absolutely delivered to Isaiah, even on Sunday, with the intent to pass the title, and it remained in his possession and control until after his father died, unrevoked, not recalled, and without any act upon the part of the old gentleman to recall it, but he died leaving it thus in the hands of Isaiah, the jury might find in this some evidence of delivery.”

This opinion is to be taken as a substantial affirmance of the defendant’s point, for, although there seems to be a qualification added, it will be found on analysis not' to amount to one.

What did the court mean to say was “ some evidence of delivery?” A series of facts, expressly stated, which amounted to an absolute delivery on Sunday. But a delivery on Sunday had just been pronounced contrary to law and voidable by the parties. It was then no evidence whatever of delivery, and the apparent qualification disappears. It cannot be doubted that the jury understood the court to mean that if they believed the deed was delivered on Sunday, they were not to give it effect. And they did not. Can a deed, duly executed and acknowledged beforehand, be delivered with effect on Sunday ? In England it can, unquestionably, for the common law never prohibited the making of contracts on Sunday, and their Lord’s Day Act, 29 Car. 2, chap. 7, only forbids work in the course of men’s ordinary calling. It applies to process and proceedings of the courts, and to dealings in the course of trade, but not to the private transactions of individuals as between themselves by way of conveyance: Drury v. Defontaine, 1 Taunton 131; Preston on Con. 362. But our Sunday Statute of 22d April, 1794, is more comprehensive than that of 29 Car. 2, and interdicts every kind of worldly employment not therein specially excepted, whether it appertain to the ordinary calling or not. It, however, merely denounces a penalty for violation of its provisions, and does not expressly annul or avoid the act done. In this respect it differs from the statutes against gaming, which avoid all contracts made in violation of their provisions, and give a right of action to recover back moneys paid or lost.

Still the construction which has uniformly been given to our Act of 1794, is that contracts made on Sunday are void ; which is agreeable to the principle laid down by Lord Holt in Bartlett v. Yiner, Carthew 252, that every contract made for or about any matter or thing which is prohibited and made unlawful by statute is a void contract, though the statute does not mention that if shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition though there are no prohibitory words in the statute. This rule was predicated of an executory contract, and all our adjudications upon contracts affected by the Act of 1794, have had reference to contracts not. fully executed by the parties. Thus in Kepner v. Keefer, 6 Watts 231, the action was upon a promissory note, and in Fox v. Mensch, 3 W. & Ser. 444, on a bond given on Sunday, and in Haydock v. Tracy, Id. 507, on a promise made on Sunday to pay a debt barred by the statute of limitations. The doctrine of these cases is that the law will not lend its aid to enforce a contract made in violation of the provisions of a statute; but the question now presented is whether the law will undo such a contract when the parties themselves have fully executed it. The plaintiff is not asking that a contract consummated on Sunday should be executed against the other contracting party, but only that he should be left in the enjoyment of the fruits of that execution which, without the aid of law or of courts, the parties made for themselves.

If in Kepner v. Keefer, or in Haydock v. Tracy, the money had been paid in pursuance of the contraband promises, could it have been recovered back? Would not performance of the conditions of the bond in Fox v. Mensch have been good ? If two men agree on Sunday to exchange horses, their contract, so far as respects any legal remedies, is void; but if they make the exchange in pursuance of their agreement, will the law compel them to trade back ?

The answer to these questions is obvious. A contract not void at common law, nor expressly avoided by any statute, and which has been fully executed by the parties, binds them although it was. made on Sunday. An illegal contract executed may be a good consideration for a promise either express or implied, and the court will not unravel the transaction to discover its origin: Fox v. Cash, 1 J. 212.

In fraudulent contracts the law does not help the parties to the fraud either to performance, or to relief from performance already had, but leaves them as it finds them. These principles are constantly applied, and they are decisive against the present attempt to impeach an executed contract.

The delivery of the deed was, it is true, the consummation of the contract, but it was also the execution of it. Nothing more remained to be done, and we do not understand that the deed contained any covenants looking to future performance. The contract was not immoral, nor opposed to any public policy, nor expressly avoided by any statute. . The parties subjected themselves to the statutory penalty for executing it when they did, but they did execute and perform it, and neither of them ever asked the law to undo it for them. We are to take it as they left it. If they were the litigants we would hold them to it, and of course-it is not to be impeached in a collateral proceeding, by others claiming under one of them. Having bound themselves, we leave them bound, and administer their respective rights as we find them defined in their executed contract.

We are, therefore, of opinion that the defendant’s proposition ought to have been negatived, and that the plaintiff was entitled to a distinct direction that if the jury believed the deed was delivered, though on Sunday, it was sufficient to pass the title.

The judgment is reversed and a venire de novo awarded.