Hill v. Freeman.

to the grantees, and being in possession under their deed, they cannot be dispossessed by the heirs of Hill, who can have no greater claim or right than the deceased grantor had. It is plain that such a contract, if unexecuted, could not be enforced in any court. Such was the ruling of this court in Walker v. Gregory, 36 Ala. 180. But the deed being executed and delivered, and the grantees being in possession, ejectment will not then lie to dispossess them. The maxim applies, in pari delicto potior est conditio possidentis.

There was no error in excluding the evidence offered by appellants, as the illegality of the consideration upon which the deed was based was immaterial.

The judgment is affirmed.

Judgment affirmed.

NOTE BY THE REPORTER.—In Clark v. Colbert, 67 Ala. 92, the court`said: "There can be no question that the composition of the felony, and the dismissal of the prosecution for a valuable consideration, was a highly penal offense, and that all who aided and abetted in its perpetration were participants in the guilt. Any executory contract, or promise based on such consideration, is illegal, and no suit can be maintained for its enforcement. Ex turpi causa, non oritur actio. No one can recover, who, to establish his claim, must trace his right through such illegal transaction. This is common knowledge. Courts can give no sanction to such flagrant violations of the law. Add. Cont., 258; 1 Brick. Dig. 381; Collins v. Blantern, 1 Smith. Lead. Cas. [161] and English notes; Benjamin Sales, §§ 503-4. The present case arises however not on an executory, but on an executed contract. The plaintiffs seek to regain property which they conveyed away by deed, on the ground that the consideration was illegal a violation of positive law. Walker v. Gregory, 36 Ala. 179, was a suit to recover slaves which had been conveyed to the plaintiff on an immoral consideration. To establish her cause of action, she was forced to rely on the contract, which was founded on such illegal consideration. This court held she could not recover. It was added, that if she had been in possession of the slaves, and the administrator had sought to recover them from her by suit possibly she might have protected herself under the maxim, potior est conditio possidentis. Denton v. English, 2 Nott & McC. 581, holds that an executed contract, founded on an immoral consideration, is binding on the parties. In Gray v. Roberts, 2 A. K. Marsh. 208, the court said: If both parties are equally guilty of a breach of the law, a court of justice cannot interpose its aid in behalf of either, for it is a settled rule, that in pari delicto potior est conditio defendentis.' S. C., 12 Am. Dec. 383. In Waite v. Merrill, 16 id. 238 (4 Greenl. 102), it was held that money paid on an illegal contract, voluntarily, knowingly, cannot be recovered back. The case of Inhabitants of Warrenton v. Eaton, 11 Mass. 368, is not distinguishable from this. The court, PARKER, C. J., said; If then the composition of a felony, or of a larceny, is an illegal consideration of any promise or obligation for money, the party claiming unVOL. XLIX-7

Hill v. Freeman.

der such instrument cannot enforce it in a court of justice; nor, can the other party, if he has paid it, recover it back again. There must then be a distinction between a conveyance of land, and money paid on such consideration, or Betsy Flagg [the grantor] could not, on this ground, avoid her deed by entry or action, so as to convey any title to the demandants. Such a distinction was attempted in the argument, but we find no foundation for it. A deed of bargain and sale, signed, sealed, delivered, acknowledged and recorded, is an actual transfer of the land to the grantee, as much as the delivery over of a sum of money, or of a personal chattel, is a transfer of those.' In Myers v. Meinrath, 101 Mass. 367; s. c., 3 Am. Rep. 168, it was said, 'the policy of the law is to leave the parties in all such cases without remedy against each other.' In 1 Story Eq. Jur., § 298, is the following language: ·In general (for it is not universally true), where parties are concerned in illegal agreements, or other transactions, whether they are mala prohibita or mala in se, courts of equity, following the rule of law as to participation in a common crime, will not at present interpose to grant any relief; acting upon the known maxim, in pari delicto, potior est conditio defendentis et possidentis.' Pursuing this subject in the note, it is said: I say at present, for there has been considerable fluctuation of opinion, both in courts of law and equity on this subject. The old cases often gave relief, both at law and equity, where the party would otherwise derive an advantage from his iniquity. But the modern doctrine has adopted a more severely just, and probably politic and moral rule, which is, to leave the parties where it finds them, giving no relief and no countenance to claims of this sort.' In the leading case of Collins v. Blantern, published in 1 Smith Lead. Cas. [153], is this strong language: This is a contract to tempt a man to transgress the law, to do that which is injurious to the community; it is void by the common law; and the reason why the common law says such contracts are void, is for the public good. You shall not stipulate for iniquity. All writers upon our law agree in this; no polluted hand shall touch the pure fountains of justice. Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid, in pursuance thereof, he shall not have the help of a court to fetch it back again. You shall not have a right of action, when you come into a court of justice in this unclean manner, to recover it back. Procul, 0! procul, este profani.' And the American annotators, after reviewing American decisions bearing on the question, employ this language: 'It is proper to say, in taking leave of this brief notice of an important and difficult subject, that the law will leave all who share in the guilt of an illegal or immoral transaction where it finds them, and will neither lend its aid to enforce the contract while exocutory, nor to rescind it and recover back the consideration when executed. We adopt this language as our own, and hold that under the facts shown in this record, plaintiffs cannot recover. Black v. Oliver, 1 Ala. 449.” See Marksbury v. Taylor, 10 Bush, 519, holding that an executed contract based upon illicit sexual commerce cannot be set aside at the instance of the grantor or his heirs-at-law, who cannot occupy in court a better position than their ancestor through whom they claim.

In Gisuf v. Neval, 81 Penn. St. 356, a man seduced a female and induced

Seals v. Edmondson.

her to submit to an operation for abortion, resulting in her serious sickness, and suffering. After her recovery he said he would buy her a house for what she had suffered for him. She contracted for a house, he gave her the purchase-money, and she paid for it before and at the time the deed was delivered to her. Held, that no trust resulted to him, by his furnishing the purchase-money. The court said: That an immoral consideration will never support a contract,' as was said by the learned judge of the court below, in that portion of his charge contained in the sixth specification, is doubtless true as an abstract proposition. But it has no application to this case. The defendant is not seeking to enforce such a contract. The contract, so far as one existed, has been fully executed. This is the case of a man who has wronged a woman, who has made her a compensation for that injury, and who now seeks to recover it back. In this the law will not help him. As he has sown, so must he reap."

*
*

To the same effect, Ayerst v. Jenkins, L. R., 16 Eq. 275; s. c., 6 Moak. Eng. 756, where SELBORNE, L. Ch., said: "The voluntary gift of part of his own property by one particeps criminis to another, is in itself neither fraudulent nor prohibited by law; and the present is not the case of a man repenting of an immoral purpose before it is too late, and seeking to recall, while its object is yet unaccomplished, a gift intended as a bribe to iniquity. Lord ELDON asked whether there had been any case upon the distinction between a recompense for past, and a provision for future cohabitation, 'where the court, finding the woman in actual possession of the property, has upon that ground had it taken out of her hand? The distinction, he added, upon the doctrine of premium pudicitia, has prevailed in the case of restraining her from enforcing a security. But I doubt whether there is any instance of taking the property out of her hands, except as to creditors.'"

The owner of a few of a large number of bales of cotton stored in a burning warehouse, having saved a part of the cotton, declaring at the time that if he could not hold it under the law, he would surrender it on being paid for his labor and expense in saving and baling it, and the warehouseman, with knowledge of the services and of the terms on which they were being rendered, having assented thereto or acquiesced therein, held, a contract entitling the person rendering the services, the cotton not being identified as his own, to payment for his labor and expense, and to its possession until he was paid.*

* See Woods v. Ayres (39 Mich. 345), 33 Am. Rep. 396.

A

Seals v. Edmondson.

CTION to recover cotton. The head-note shows the facts.

Watts & Sons, for appellant.

G. L. Comer, contra.

STONE, J. This is a statutory action for the recovery of chattels in specie, very like the common-law action of detinue. On all questions material to be here inquired into, it is governed by the same rules as those which obtain in the action of detinue. In fact, it is the common-law detinue, with some statutory additions. One controlling principle, in this form of action, is that to maintain it, the plaintiff must have, as against the defendant, a present, unqualified right to the possession of the chattel, in its present form. If there be any preliminary act, or condition precedent to be performed, before the unqualified right of possession attaches, then detinue cannot be maintained. 1 Brick. Dig. 572, §§ 6, 8, 9.

The testimony showing the circumstances under which the appellant gathered up and baled the waste cotton, left by the fire, is neither very clear nor very harmonious. One phase of the testimony, at least, tends to show that appellee, plaintiff below, was present and cognizant of the services being rendered by appellant in saving the cotton; that appellant stated he intended to hold the cotton for himself, if he could; and if he could not hold it under the law, then he would surrender it on being paid for his labor, trouble and expense in saving and baling it; that appellant and the attorney of the insurance companies, interested in the saving of as much as nine-tenths of all the cotton destroyed by the fire (some 700 bales), agreed to these terms; that both appellant and the said attorney informed plaintiff, appellee of this agreement, and that he expressed no objection. The law frequently implies contracts from the conduct of parties. If one perform useful services and works for another, of a character that is usually charged for, with the knowledge of that other, and he express no dissent, or if he avail himself of the services, then the law implies a promise to pay for such services what they are reasonably worth. And assent is sometimes implied from silence. When the conduct of the parties is ambiguous, or the testimony conflicting, it is always a question for the jury to determine whether or not there was a mutual agreement or understanding. No matter what of dissent plaintiff may have

Seals v. Edmondson.

first expressed, if he finally, while the work was progressing, acquiesced in appellant's offer, if he made it, that if he, appellant, could not hold the cotton under the law, then he was to be paid for his expense, labor and services incurred and employed in saving and baling the cotton, this constitutes a contract. On the other hand, if appellee objected to the services tendered and performed by appellant, and did not afterward expressly or impliedly assent to the terms proposed, if terms were proposed, then there can be no proper finding that there was a contract to pay appellant for his services and expenses. No man, except in specially exceptional cases, can be made another's debtor against his will. This is a question peculiarly for the jury, under the rules above declared.

If the jury find there was an express or implied agreement, such as is referred to above, then plaintiff, appellee, did not have a present, unconditional right to the four bales of cotton. To give him such right, he must have paid or tendered to the appellant the value of the labor and expense he had bestowed in and about saving and baling the cotton. If under the rules above there was no agreement, express or implied, to pay for the labor and expenses, then no payment or tender was necessary. Appellant could not force appellee to become his debtor. If the jury find there was such agreement to pay, express or implied, then plaintiff cannot maintain detinue on the proof in this record. He must bring some other action, or show payment or tender before action brought of appellant's proper charges.

The testimony in this case did not authorize the general charge on its effect. It was neither very clear, nor free from conflict. The objection that the record fails to show the court was requested, in writing to give this charge, is without merit. We presume the court did its duty and obeyed the statute. 1 Brick. Dig. 335, §§ 2, 3, 4, 5.

The plaintiff, having the lawful possession of the cotton as warehouseman, had such a qualified right to it as that in the absence of other facts he could sue and recover against one found in possession of it, and not showing a better title. The fact that appellant owned twelve of the seven hundred and fifty bales that were in the warehouse when it was burned, waste cotton enough to make fourteen bales only being saved, did not of itself tend to prove that any part of the four bales saved by him contained any of his cotton. The possibilities are too remote, and the chances too uncertain, to be made the basis of judicial action. Reversed and remanded.