fendant under a trust deed executed by plaintiff to secure a note while he was a minor.296 But on the other hand, the adult party to the contract is equally entitled to be restored to his former situation, on its disaffirmance by the infant, if this can be done consistently with a due regard to the rights and privileges of infancy. Thus, if an adult sells or leases property to an infant, which still remains in the infant's hands at the time he disaffirms the contract, the title to the property revests in the seller or lessor, and he is entitled to the immediate possession of it.297 There may even be cases in which the infant, being unable to restore the property, should be required to make restitution in money; but in this case, he is chargeable only for the value of the property, not for its agreed price.298 The infant may also have a claim for work done or money expended in connection with the property while in his possession. Thus, where plaintiff sold an infant certain cattle, which the latter fed for some time, and, on becoming of age, rescinded the contract, it was held that he was entitled to recover the reasonable value of his services and the feed, with a lien on the cattle for the amount.2 299 The disaffirmance of an infant's contract avoids it completely and for all purposes and in respect to all its incidents and collaterals. It will, for instance, release the sureties on the infant's note.300 If an infant gives a mortgage to secure the price of property purchased by him, his disaffirmance of the mortgage will rescind the sale,301 and if the note and mortgage of an infant are repudiated, there can be no recovery of the goods covered by the mortgage on an assignment of it or an indorsement of the 296 Parker v. Gillis (Miss.) 66 South. 978. 297 Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561; Peck v. Cain, 27 Tex. Civ. App. 38, 63 S. W. 177; Ross P. Curtice Co. v. Kent, 89 Neb. 496, 131 N. W. 944, 52 L. R. A. (N. S.) 723; Skinner v. Maxwell, 66 N. C. 45. See Lamkin v. Ledoux, 101 Me. 581, 64 Atl. 1048, 8 L. R. A. (N. S.) 104. 298 Kimball v. Bruce, 58 N. H. 327. 299 Tower-Doyle Commission Co. v. Smith, 86 Mo. App. 490. 300 Patterson v. Cave, 61 Mo. 439. 801 Cogley v. Cushman, 16 Minn. 397 (Gil. 354). note.302 So where, in an action against an infant for the price of goods sold, the proceeds of the property purchased have been attached in the hands of a third person, the plea of infancy annuls the contract, defeats collection of the debt, dissolves the attachment, and releases the funds.303 But an infant may avoid personal liability by disaffirming a contract made by a firm of which he was a member, without disaffirming the contract of partnership.304 302 Hyde v. Courtwright, 14 Ind. App. 106, 42 N. E. 647. 308 Wallace v. Leroy, 57 W. Va. 263, 50 S. E. 243, 110 Am. St. Rep. 777. 304 Mehlhop v. Rae, 90 Iowa, 30, 57 N. W. 650. CHAPTER XIII ILLEGALITY AND IMMORALITY § 313. General Rule as to Executed Contracts. 314. Rescission of Executory Contracts. 315. Immoral Contracts. 316. Gambling, Wagering Contracts, and Lotteries. 319. 320. 321. 322. 323. Monopolies and Restraints of Trade. Ultra Vires Contracts. Compounding Crime or Stifling Prosecution. Contracts Contrary to Public Policy. Fraudulent Transfers and Schemes to Defraud. 324. Contracts Violating Sunday Laws. 325. Usurious Contracts. § 313. General Rule as to Executed Contracts.-When a contract which is illegal or contrary to good morals or public policy has been executed, neither of the parties to it can obtain the aid of the courts to rescind it or set it aside. Both of them being participants in a transaction which the law condemns, the law will not assist either of them to undo the transaction, but will leave them just where their own acts have placed them.1 "The maxim, 'ex turpi causa non oritur actio,' is an old and familiar one, resting on the clearest principles of public policy and never to be ignored. In accordance with this maxim, nothing is better settled than that, in regard to contracts which are entered into for fraudulent or illegal purposes, the law will aid neither party to enforce them whilst they remain executory, either 1 St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 145 U. S. 393, 12 Sup. Ct. 953, 36 L. Ed. 748; Cincinnati, H. & D. R. Co. v. McKeen, 64 Fed. 36, 12 C. C. A. 14; Watkins v. Nugen, 118 Ga. 375, 45 S. E. 260; McAndrew v. Taylor, 15 Ga. App. 555, 83 S. E. 967; Cisna v. Sheibley, 88 Ill. App. 385; Marksbury v. Taylor, 10 Bush (Ky.) 519; Monatt v. Parker, 30 La. Ann. 585, 31 Am. Rep. 229; Murray v. White, 42 Mont. 423, 113 Pac. 754, Ann. Cas. 1912A, 1297; Costello v. Portsmouth Brewing Co., 69 N. H. 405, 43 Atl. 640; Roche v. Hoyt, 72 N. J. Eq. 947, 73 Atl. 1118; Gisaf v. Neval, 81 Pa. 354; Jones v. Williams, 41 Tex. 390; Bishop v. Japhet (Tex. Civ. App.) 171 S. W. 499; Sicklesteel v. Edmonds, 158 Wis. 122, 147 N. W. 1024. Compare Henderson v. Palmer, 71 Ill. 579, 22 Am. Rep. in whole or in part, nor, when executed, will it aid either party to place himself in statu quo by a rescission, but will in both cases leave the parties where it finds them." It may be said, however, that the maxim quoted more properly states the reason why the courts will not give their assistance for the enforcement of an illegal contract which remains executory, while the ground for refusing to overhaul or set aside such a contract after it has been executed is expressed in the maxim, "in pari delicto potior est conditio defendentis." Thus, it is said: "When the parties are in pari delicto, and the contract has been fully executed on the part of the plaintiff, by the conveyance of property or by the payment of money, and has not been repudiated by the defendant, it is now equally well settled that neither a court of law nor a court of equity will assist the plaintiff to recover back the property conveyed or money paid under the contract." 994 But because a contract is tainted with illegality it does not follow that both parties must be considered as equally implicated nor that the policy of the law requires that relief should be denied to the one who is wholly or comparatively innocent. "If the contract is illegal," says the Supreme Court of the United States, "affirmative relief against it will not be granted, at law or in equity, unless the contract remains executory, or unless the parties are considered not in equal fault, as where the law violated is intended for the coercion of the one party and the protection of the other, or where there has been fraud or oppression on the part of the defendant." " This distinction is also recognized in the codes of some of the states, judicial rescission of a written contract being allowed "where the contract is unlawful for causes not apparent upon its face and the parties were not equally in fault." For instance, 2 Hooker v. De Palos, 28 Ohio St. 251. 3 Gotwalt v. Neal, 25 Md. 434. 4 St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 145 U. S. 393, 12 Sup. Ct. 953, 36 L. Ed. 748. 5 St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 145 U. S. 393, 12 Sup. Ct. 953, 36 L. Ed. 748. And see Wilson v. Calhoun (Iowa) 151 N. W. 1087. Civ. Code Cal., § 3406; Rev. Civ. Code Mont., § 6112; Rev. Civ. Code N. Dak., § 6623; Rev. Civ. Code S. Dak., § 2353. a contract between a vendor and vendee of real estate is not affected by any secret intention of the vendee to use the premises for an unlawful purpose. So, a plaintiff who has been induced to enter into a contract by the false representations of the defendant that it is such as the courts have held to be legal and not contrary to the postal laws and regulations, and who has received nothing under the contract, and abandons it as soon as he discovers its illegality, is not in pari delicto with the defendant, but is entitled to rescission.o But even where the parties are in pari delicto, relief may in some exceptional cases be granted to one of them as against the other, and chiefly in cases where the undoing of the contract would promote the public interest, or where to withhold relief would to a greater extent offend the public morals or facilitate the perpetration of frauds. Thus in a case in Missouri, where the plaintiff entered into a dishonest scheme with a band of gamesters to obtain money, and was caught and entrapped by them in their scheme, which was so fraudulently conducted as to make it certain that the plaintiff would lose, it was said that the court would not listen to his prayer for relief if there was nothing in the case to make their offense more heinous than his, and if to grant him relief would amount to nothing more than to restore to him the money he had lost. But if there had been other like transactions engaged in by the defendants, the court would permit the plaintiff to recover the money of which he was defrauded, in order to aid in breaking up such dishonest pursuits, for in such cases the court interferes from motives of public policy.10 Also, it is held that if a contract was induced by fraud or duress, or obtained from a person so intoxicated at the time as to be unaware of what he was doing, or, generally, if any recognized and sufficient ground for its rescission exists, rescission will not be prevented by the fact that the 7 Nortnass v. Pioneer Townsite Co., 82 Neb. 382, 117 N. W. 951. 8 Coons v. Lain (Tex. Civ. App.) 168 S. W. 981. Gilchrist v. Hatch (Ind.) 106 N. E. 694. 10 Hobbs v. Boatright, 195 Mo. 693, 93 S. W. 934, 5 L. R. A. (N. S.) 906, 113 Am. St. Rep. 709. |