Upton v. Haines

55 N.H. 283 | N.H. | 1875

Lead Opinion

It is not distinctly denied in the bill that Johannah Rourke knew for what purpose the note and mortgage, which she executed with her husband, were given. The plaintiff alleges that John Rourke was a saloon keeper and retail dealer in liquors, and, in order to obtain credit for ale and beer thereafter to be sold by the defendants to him, and for no other consideration whatever, he and his wife executed the note and mortgage in question, and that whatever sum, if any, is due upon said note, is due for ale and beer sold under this arrangement.

In State v. Biddle, 54 N.H. 379, it was held that the court cannot, as matter of law, say that ale and beer are intoxicating liquors, and so within the terms of the statute prohibiting the sale thereof. The plaintiff asks that this mortgage may be decreed null and void, upon the ground that the consideration of the note was illegal; and the defendants in their answer admit that the consideration was illegal. Both parties therefore admit that the ale and beer furnished by the defendants to John Rourke were intoxicating liquors. It necessarily follows, then, that if this note was given by the wife with knowledge or notice of its consideration, the law must leave the parties, who are in pari delicto, in the position in which they have placed themselves. Weeks v. Hill, 38 N.H. 199; Leach v. Tilton,40 N.H. 473.

But the defendants have filed their answer, in which they deny that the note was given for the sale of ale as alleged in the bill, but say that it was given in consideration of an agreement between the defendants and John Rourke, by which he acquired for a term of years the sole and exclusive right to sell the ale and beer manufactured by the defendants in the city of Manchester. But it is not distinctly alleged that the wife had notice or knowledge of the consideration of the note. *286

The plaintiff has set down the cause for a hearing upon the bill and answer. The answer not being sworn to, is regarded in our practice as a mere pleading. The allegations of the bill, so far as not denied by the defendants in their answer, are taken as true, and the allegations in the answer, so far as they are responsive to the bill, are also to be taken as true.

The sale of spirituous and intoxicating liquors being prohibited by law, a contract to give another the right to the exclusive sale of such liquors is a contract to promote the sale of an article prohibited by law, and is consequently an illegal contract.

The legal title to the mortgaged premises was in the wife. If the purchase-money was furnished by the husband, there would have been a resulting trust in favor of the husband, of which the then existing creditors might have availed themselves; but as to subsequent creditors no such trust is raised.*

If it should turn out on the trial that the wife had knowledge of the illegal consideration upon which the note and mortgage were based, the law would leave her where she placed herself; and her son, who takes her rights in the land by inheritance, would be in the same predicament, and so could not have the relief sought by the bill. White v. Hunter, 23 N.H. 128. If, on the other hand, it should be made to appear at the trial that Johannah Rourke had no such knowledge, no reason is now seen why the prayer of the bill should not be granted.

Upon these views the order must be that the bill be dismissed, unless the plaintiff obtains leave in the circuit court to amend his bill, file a replication, and proceed to proof.

* Pembroke v. Allenstown, 21 N.H. 107; Vogt v. Ticknor, 48 N.H. 242; — but see Dickinson v. Davis, 43 N.H. 648. REPORTER.





Concurrence Opinion

The plaintiff in this case appears as the guardian of John Rourke, Jr. It is, in point of fact, the suit of John Rourke, Jr., appearing by his guardian Samuel Upton, and the case must be determined on the same principles as if the suit were, in form, the suit of John Rourke, Jr.

It is substantially alleged in the bill, that the plaintiff's father and mother, — John Rourke and Johannah Rourke, — under whom he claims and whose title he has, in their lifetime executed a mortgage of the tract of land in controversy to the defendant; that said mortgage was given to secure a note, the consideration of which was the price of intoxicating liquors unlawfully sold by the defendants to the plaintiff's ancestor; that the note, therefore, is void, and the mortgage also, — both being given for the purpose of carrying out the unlawful trade. The case comes here to be heard on the bill and answer, and we must, I suppose, assume that whatever is alleged in the bill, and not denied in the answer, is true, and that the answer is true.

From the allegations in the bill and answer, I infer that the contract, in the execution of which the note and mortgage were given, was a *287 contract, the object of which was the furtherance and promotion of the sale of ale, which the answer admits to have been intoxicating liquor, of which the sale was prohibited by law.

The bill alleges and relies upon this unlawful contract, but does not allege, as I think it should in order to make out the case, that Mrs. Johannah Rourke was ignorant of the nature of the contract which she assisted to execute and carry out by signing the note in question. It seems to me beyond doubt that if Johannah Rourke were the plaintiff here, she would be obliged to clear her skirts from all stain from this illegal transaction, and I cannot see how her death should relieve her representative from the burthen [burden] which I think she must have borne.

The plaintiff invokes the aid of the court to relieve him from the effects of that unlawful contract. He asks the court to interfere, and set aside for his benefit a deed made by his ward's ancestor, for the purpose of carrying out this contract.

The case of White v. Hunter, 23 N.H. 128, appears to me to be exactly in point. There, as here, the plaintiff was seeking the aid of the court to relieve him from the consequences of his ancestor's unlawful contract. The maxim, in pari delicto potior est conditio defendentis, was held to apply. If, as I should infer from the case, the defendants are not in actual possession, and should hereafter find it necessary to invoke the aid of the court to enable them to recover possession, the same maxim would probably be held applicable.

I think the bill must be dismissed unless the parties, having obtained leave in the circuit court, shall amend their pleadings as they shall be advised, and go to trial.

LADD, J., concurred in the result.

Decree accordingly.