61 Ga. 322 | Ga. | 1878
This was a proceeding under the statute, section 1077 of the Code, instituted by Tufts against DuBignon, in order to get possession of lands which Tufts alleged that DuBignon held as his tenant, and that the term had expired, the lease providing that in the event the tenant did not pay rent when due, on twenty-four hours notice, the lease should terminate. Tufts alleged that the rents were over-due, and that the notice had been given. DuBignon denied by counter-affidavit, under section 1079 of the Code, that he held under Tufts; and thus the issue was made, and no other pleadings were made in the case by either party. The court submitted two questions for the jury: 1st. Do you find for plaintiff or defendant ? and 2d.; if you find for defendant do you find that the deed be given up to be canceled as fraudulent? The jury found that the deed be canceled. Whereupon the court entered up a decree that the clerk of the court cancel the same.
The plaintiff moved for a new trial on numerous grounds, many of which are corrected by the court as the record will show, so as to amount to nothing. To those uncorrected and certified as true, we will direct our attention.
There can be no doubt that the courts will not enforce an immoral or illegal contract, if their aid be invoked by either side to execute such'a contract; but that it will leave the parties where it finds them. If the contract-be executed, as between the parties the court will not interfere. It will help neither side to undo what has been done. Hence it was held in 55 Ga., 262, that where the 'consideration of -a note was to defraud, hinder and delay-other creditors, the court would not allow it collected — the money not being paid and the contract béing executory. And sofin the cases there cited. In that case attention was drawn to certain language óf Judge Lumpkin and Judge Benning in regard to enfore
This contract, under the facts made here, was executed. The deed was made and the consideration was paid. Possession of the land was given, as Dubignon leased from Tufts and became his tenant; thus his possession became Tufts’. The proceeding at bar was not to execute the contract, for it was already executed by the parties; but to put Tufts in actual possession of the land his tenant held for him under the executed contract. On that issue he had no right to dispute his landlord’s title even if it' was fraudulent, as he himself was a party to the fraud. This was ruled in Gleaton vs. Gleaton, 37 Ga., 350. Indeed, in that case there was proof of fraud in the landlord alone, yet the court would not allow his title impeached. See also §§2283, 2285 of the Code; 39 Ga., 381; 43 Ga., 230.
In the casé at bar the court allowed, on a naked issue of possession' under a lease by which the tenant acknowledged that he held under the landlord, the tenant to impeach the title under which he held, and interposed in behalf of the tenant, who certainly was m pari delicto, to say the least, to the extent of canceling the'deed of the landlord.
Thus the court opened the executed contract in behalf of the most guilty of the two men, allowed him to go behind his lease, wherein he recognized the plaintiff as his landlord, and to show that the deed he made and executed, and for which the consideration was paid, was fraudulent on the part of himself.
In the best view we can take of the ease in reference to this important question, we conclude that on this issue of possession alone, the title of the landlord, Tufts, cannot be
See 3 Ga., 176; 5 Ga., 404; 7 Ga., 256, 275; 8 Ga., 137; 9 Ga., 151; 10 Ga., 274, 361; 16 Ga., 140; 19 Ga., 290 ; 20 Ga., 600; and cited by plaintiff in error, 98 Mass., 22 Pick., 253; 4 Rich., 491; 13 Wendell, 240, 242 ; 16 Johnson, 189; 18 John, 515 ; 5 Conn., 547; 19 Vesey, 166; 2 B. & Ald., 367; 10 E. C. L. R., 84.
Judgment reversed.