1 Morris 124 | Iowa | 1841
This was an action of covenant, to which the defendants had pleaded non infregit convantiónem, and non est factum; and, under these pleas, had given notice of fraud as a further defence. Neither by plea nor notice was any mention made of illegality as a ground of defence. On the trial of the cause several instructions were asked of the court, which being mostly refused, exceptions were taken, and the case brought up on writ of error.
The first instruction asked was, that the selling of land belonging to the United States was a fraud upon the purchasers — which the court refused, and charged the jury that süch sale would not be fraudulent unless deception were practised upon the vendees. This is so clearly correct as scarcely to need notice. Such a sale might not constitute a sufficient consideration for a promise, but would not be fraudulent where no fraud was practised.
The next instruction asked and refused was, that if the jury found this covenant was made for a quit claim deed from the plaintiff below for public lands belonging to the United States, they must find fordhe defendant. The only particular in which this question differs from that just considered, is, that it may be contended that the traffic in public lands is illegal. This subject has been so frequently considered in this court, that it is unnecessary for us to express our coincidence with the views of the court below, farther than by referring to the case of Hill vs. Smith, decided at the last term of this court. We have not1 changed the opinions there expressed.
But the principal point relied upon in this case by the plaintiffs in error, is, that after the court below had, in accordance with their request, instructed the jury “that if they found that the consideration for the covenants made by McCarty was in whole or in part that he was to convey to the defendants below a right to purchase the land at the auction sales of the United States, and that he sold his right of bidding at the land sales for said land, that he could not recover, and that it was not necessary that this agreement or promise should have been in writing,” the court further instructed the jury that the evidence must prove a direct and positive agreement. This latter instruction is deemed error.
To sustain themselves in this position, they rely upon the fourth section of the Act of Congress, approved March 31, 1830, entitled “An Act for the relief of the purchasers of public lands, and for the suppression
Por the defendant in error it was contended that the written agreement between the parties, and on which the action was brought, must be the only proof of any illegal contract; that parol proof was inadmissible for this purpose. But this position cannot be sustained. It is well settled that parol proof is admissible to sustain the defence of fraud or illegality in a contract, though under seal. Saunders on Pleading and Evidence, 528, 578.
There is, however, still an obstacle to the reversal of the judgment below. The state of the pleadings did not permit the defence of illegality to be made at all. In an action of assumpsit, fraud or illegality may be given in evidence under the general issue, but the pleas in an action of debt or covenant are not so broad. It is a well established rule, that in an action on a specialty, unless it be void at common law, illegality, to be made available, must be specially pleaded. 1 Saunders, 295-6; Chitty on Pleading, 520; Saund. on Plead, and Ev. 576. We see no good reason for relaxing this rule, which is calculated to develope by the pleadings the true issue to be tried by the jury. The whole of the instructions, therefore, asked or given on the subject of illegality of consideration, were inapplicable to the legitimate issue then before the jury; and we cannot, of course, reverse a judgment for misdirection of the jury on a merely speculative or immaterial point.'
Judgment below affirmed accordingly.