3 A. 204 | R.I. | 1885
On May 30, 1863, Andrew Jansen, of Providence, died leaving a will by which he devised several lots of land belonging to him in the city of Providence, as follows, to wit: To his wife during her life and widowhood, and after her decease, "in trust to such person as my wife may appoint by will, to hold said estate until my youngest child shall become of age, said trustee to appropriate the income thereof to the support and education of my three youngest children and their survivors until the youngest shall become of age, at which time said trustee shall . . . distribute equally, share and share alike, to all my surviving children." Andrew Jansen died leaving five children, the youngest of whom became of age June 25, 1881. One of them subsequently died. The widow died without appointing any trustee, February 12, 1871. Trustees were appointed by this court, John Jansen, so appointed, being trustee in 1881. Andrew Jansen, Jun., one of the children, in the employ of James H. Perry and William F. Hardy, copartners as Perry Hardy, had embezzled the moneys of his employers to the amount, according to his own confession, of about $1,500. He was arrested on complaint of Hardy, and lodged in jail to await his trial thereon. He was afterwards released, and January 14, 1874, gave to Perry a quitclaim deed of his interest in the land aforesaid, taking back an agreement by Perry to reconvey to him, at any time within seven years, on payment of $1,500 and interest at eight per cent., *263 and thereupon the complaint was discontinued. On march 27, 1874, said Andrew gave a deed of one undivided fourth of said lots, with general covenant of warranty, to one David A. Brown, who, on the same day, gave a warranty deed thereof to the complainant. Afterwards Perry Hardy failed in business and made a composition with their creditors, in the course of which Perry sold to the defendants, Daniels and Cornell, all his interest in said lots for $455, the instrument of sale being dated November 26, 1875. The three deeds first mentioned were recorded on the days of their dates. June 28, 1881, Andrew Jansen, Jun., gave a deed of the defendants confirming his former deed to Perry, and this deed of confirmation was recorded June 30, 1881. June 29, 1881, the complainant gave the trustee notice of his claim; but on July 11, 1881, the trustee transferred the estate to the defendants, Daniels and Cornell, in place of Andrew Jansen, Jun., and to three other surviving children of Andrew Jansen, deceased. The complainant brings this suit for the purpose of enforcing the claim which he makes to an undivided fourth of the estate.
The complainant contends that the estates devised to the children of Andrew Jansen, Sen., were only contingent remainders, and consequently that the quitclaim deed given by Andrew Jansen, Jun., to James H. Perry was ineffectual: whereas the deed to David A. Brown, being a warranty deed, took effect by estoppel as soon as the estate vested when the youngest child became of age. The estate given to Andrew Jansen, Jun., by the will of his father, was without doubt a contingent remainder; but it was also an equitable estate, and in a court of equity it must be dealt with on equitable principles. In Bailey v. Hoppin,
The complainant also contends that he is entitled to relief on the ground that the deed given to Perry was void because it was given for the purpose of compounding felony. We have no doubt that the deed was given in part in consideration of the withdrawal of the criminal complaint. There was, however, another consideration, namely, the moneys embezzled, which, for aught that appears, was entirely adequate. There is no proof of any unconscionable advantage taken. In Anthony v. Hutchins,
After the foregoing opinion had been rendered, the complainant, July 14, 1885, asked for a re-argument of the case. The case was re-argued November 17, 1885, and the court thereupon gave the following opinion: —
February 13, 1886.
STINESS, J.
Upon a re-argument granted in this case, the complainant contends that the court erred, in its former opinion, in holding that, upon the facts shown, he was not entitled to a conveyance of the estate held by the defendants. It is agreed that Andrew Jansen, Jun., had a contingent, equitable interest in certain real estate, under the will of his father; that he made a deed to Perry; grantor to the defendants, of that interest, before the estate became vested; that subsequently he gave to Brown, grantor to the complainant, a warranty deed of the same estate; that afterwards, upon the happening of the contingency, when the right in expectancy became vested, he made a deed to the defendants, confirming his prior deed; and the trustee, in whom was the legal title, also conveyed to them the interest to which said Andrew would have been entitled under the will. The complainant now contends that, under his warranty deed, the equitable interest, which came to Andrew Jansen, Jun., at the happening of the contingency, immediately vested in him, the complainant, by way of estoppel; that, as no such estoppel is created by a quitclaim deed, nothing passed or became vested under that deed, and the complainant, thus becoming the equitable owner of the share of Andrew Jansen, Jun., has the right to a conveyance of the legal estate. In McCusker v. McEvey,
We do not see that the question of notice, actual or constructive, is important. The complainant assumes that the court held, in the previous opinion, that the registration of Perry's deed was notice of his claim of title. The court made no such ruling. Referring to the fact that Perry's deed was put on record, the court remarked that it does not appear that either Brown or the complainant was ignorant of it; thus indicating that no fact appears tending to show that the complainant is entitled to consideration in equity above the defendants.
The complainant also contends that, a part of the consideration for Perry's deed being illegal, the deed itself is void. There can be no doubt that a court will not enforce a contract between parties, founded upon an illegal consideration; and that, when the consideration is entire, the illegality of a part vitiates the whole. Perhaps the court said more in the former opinion than was warranted by the evidence, in saying: "We have no doubt that the deed was given, in part, on consideration of the withdrawal of the criminal complaint." While there is strong reason to believe that such was the fact, we can hardly say that it is very clearly proved. It does not appear that Jansen was arrested upon the complaint, although, from his pleading to it and giving bail, we may assume that he was arrested and that the officer neglected to make a return. *269 The witnesses also refer to the fact that Jansen was in jail. Hardy was the complainant, but he says he did not discontinue the complaint and does not know who did. Jansen sent for Perry, both of whom are now dead. Jansen himself fixed the amount which would repay what he had taken. Hardy testifies that he understood that Jansen proposed to give the deed, and that if he gave the deed he was to be set at liberty. He also testifies that Jansen did not give the deed until after he came out of jail, and that he said he gave it to secure what he had taken, intending to raise the money to redeem the property. Now what promises were made to Jansen, what the actual consideration was, and how the complaint came to be discontinued, are matters of conjecture, not of evidence. Those who knew about the transaction are dead. Jansen's statement, after the deed was given, is consistent with an honest desire on his part to make restitution; and his voluntary confirmation of the deed afterwards, which he could not have been compelled to give if the consideration was illegal, affords a reasonable presumption that both the motive and the transaction were honest rather than corrupt. But, however this may have been, we are not asked in this suit to enforce an illegal contract. The cases to which we have been referred by the complainant are cases brought by parties to an entire contract, wholly or in part illegal, where the aid of the court is sought to enforce it. There is a wide difference between seeking to enforce an illegal contract and simply standing upon one that is executed.
Thus in Thomas v. Cronise, 16 Ohio, 54, the defendant had obtained title to land as the result of a bet. The plaintiff, an innocent purchaser for value, sought to have the deed set aside for illegality of consideration. But the court held as a universal principle, both in law and equity, that where an agreement is founded upon a consideration illegal, immoral, or against public policy, a court will leave the parties where it finds them. If executed, the court will not rescind it; if executory, the court will not aid in its execution." The reason for this is obvious. If a grantor upon such consideration could sell the property to a third party, who could avoid the prior deed, it would result in enabling the grantor indirectly to secure a benefit from his own wrong. In Atwood *270 Currant v. Fish,
But the defendants in this case do not even claim to stand upon the equitable title created by the deed to Perry. They stand upon the legal title, which it is not pretended is tainted by illegality; referring to the other only to show that they hold under a claim of right, for which, without wrong on their part or notice of wrong on the part of others, they have paid value. That is enough to stand upon, until a better title is shown. Does the complainant show a better title? Assuming all that he claims to have proved, the case stands thus: Jansen gave two contracts to convey his contingent, equitable interest in real estate. One party secured the legal title as a result of his contract; the other did not. Whatever the form, both were agreements to convey, and, except in point of time, neither was superior in equity to the other. Even if based upon illegal consideration, the contract under which the defendants claim has been executed, and we cannot, upon that ground, set it aside in favor of one who took a subsequent agreement. We are of opinion, therefore, that the complainant makes no case for interference in equity, and that his bill must be dismissed.
Bill dismissed with costs.