Nellis v. Clark. sented to exist had been settled on the female by marriage articles; and it is said, in either case, the suit must be in the husband's name. To take the general doctrine unqualifiedly as there laid down, would contradict the whole current of English authority, and several cases decided by Lord Mansfield himself. The doctrine is also too broadly laid down in Potter v. Yale College, 8 Conn. R, 52, 62; indeed as broadly as would be the proposition just examined. The cases there cited, of Philips v. Biron, 1 Str. 509, and Smith v. Bouchier, 2 id. 993, are merely that where two join in pleading a justification, the matter must be a good justification for both, not for one only; otherwise the plea is bad. The point before us has been lately examined on the equitable side in the court of appeals of Kentucky. Jones v. Read, 3 Dana, 540, A. D. 1835. There a debtor, Mary May, in order to cheat her creditors, conveyed to her daughter Lucy, taking back a secret bond for re-conveyance. Lucy married, and her husband sold the land to Read, who gave his note for the purchase money, but filed his bill to avoid it, because the bond raised an adverse equitable claim in the obligee. Ewing, J. delivered the opinion of the court. He said the bond was fraudulent in its emanation; and a chancellor should not interpose to afford relief to either party. No authorities are cited; but the case is evidently an application of the principles which I have supposed to govern. It is more pertinent, as the mother's assignee was made a party defendant, and insisted on the bond as valid. The principle is also fully stated and approved in a case at law in the supreme court of North Carolina, by a dictum of Ruffin, J. in Waller v. Niles, 3 Dev. 519. On the same principle a court of chancery refused, as between the parties to such a fraudulent deed absolute on its face, to change it into a mortgage, pursuant to the agreement of the parties. Wright v. Wright, 2 Litt. R. 8, 12. From the degree of examination I have been enabled to bestow upon the subject, I can not bring myself to doubt, that the note in question is among that class of contracts which the law will Nellis v. Clark. not enforce, on account of their corrupt origin. I am sure it is in vain to speculate, ab inconvenienti, whether such a result will, being known as the law of the land, have an influence either to discourage or multiply such fraudulent practices. To say that notes given upon such a consideration as this shall be enforced, was acknowledged by the plaintiff's counsel to be without any precedent which they could produce. It is said the defence can be allowed only where the facts must necessarily make a part of the plaintiff's own proof, and for this we are referred to what Gibbs, Ch. J. said in Simpson v. Bloss, 7 Taunt. 249, 250. As this objection was very fully considered, and refuted on abundant authority, by Mellen, Ch. J. in Smith v. Hubbs, I shall content myself with referring to his argument there. The question put by counsel, (as if that would present an analogous case,) suppose that the defendant had paid the money, instead of giving his notes, could he recover it back? is the question, as it will be seen, to which we have fully directed our attention, and answered no; because that would be an execution of the contract, and drive the defendant, in the words of Lord Mansfield, to change sides. That makes the fatal differOn the whole, my conclusion is, that there should be a new trial, the costs to abide the event. ence. Mr. Justice BRONSON, concurred. The CHIEF JUSTICE dissented, and delivered the following opinion: I am of opinion that the plaintiff is entitled to his verdict on the note in question, notwithstanding the want or illegality of consideration urged against it. In my view of the case, neither has been established; and to be satisfied of this, it seems to me only necessary to distinguish between an illegal contract in the strict sense of that term, and one fraudulent as it respects creditors. The former is altogether void, and cannot be made the foundation of an action. Ex dolo malo non oritur actio. "You Nellis v. Clark. shall not stipulate for iniquity," says Chief Justice Wilmot in Collins v. Blantern, 2 Wils. 341," for no polluted hand shall touch the pure fountains of justice." This class of contracts is well assigned, and illustrated in the books. 1 Comyn on Cont. 31, 46. 2 Saund. on Pl. and Ev. 576, and cases there cited. They form an exception to the rule applicable in general to the dealings of mankind, namely, that no person shall take advantage of his own wrong. The reason for it is given by Lord Mansfield in Holman v. Johnson, Cowp. 343. "The objection," he observes, "that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff. If from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant." All this is quite clear and satisfactory. But in respect to the other class, that is, contracts fraudulent under the statute, 2 R. S. 137, § 1; 13 Eliza. c. 5, they are void only "as against the persons hindered, delayed or defrauded :" not altogether void; they are binding upon the parties. Cro. Jac. 271. Hawes v. Leader, id. 270. 7 Johns. R. 167. 16 id. 189. When the question is between them, the rule ex turpi causa does not apply, and therefore, neither can urge the corrupt intent as to the creditors by way of imparing their obligation. Buttolph could not have urged this view in answer to a bill filed to compel the execution of the deed, nor the defendant resist taking it and paying the stipulated consideration. My brethren have expressed the opinion that this rule is applicable only to executed contracts. But as early as the case of Hawes v. Leader, it was held otherwise. There one C. had sold certain goods to the plaintiff for £20 paid, and bound himself to keep them safely, and deliver them on demand. C. died some Nellis v. Clark. four years afterwards, and the plaintiff demanded the goods of the defendant, the administrator, who refused to give them up, upon which the action was brought. The defendant pleaded the statute of 13 Eliz. in due form, to which there was a demurrer, and judgment for plaintiff. It is there said the defendant is not such a person as is enabled by the 13 Eliz. c. 5, to plead that plea; for the statute makes the deed void as against creditors; but not against the party himself, his executor or administrator; against them it remains good. This has been, as I understand it, the received construction of this statute, ever since the decision of this case, (1608.) It is also reported in Yelv. 196. also 3 Bac. 313, 314, tit. Fraud, C. 13 Vin. 520, tit. Fraud, F., pl. 8 and 11. Shep. Touch. 67. 10 Coke, 57. 6 id. 19. 3 id. 82. 1 Taunt. 381. 2 Barn. & Adol. 376. 2 Saund. Pl. and Ev. 528. It was said on the argument that the subsequent application of the property to the payment of the creditors, by operation of law, has changed the legal features of the case, as the vendor has thereby realized the whole benefit of the article sold, and the vendee of course has been deprived of it. Still this cannot make the contract illegal in the sense which renders it absolutely void, as the application is only the practical result of the taint before assumed to exist, notwithstanding which it was deemed valid as between the parties. As to the creditors, it was void from the beginning, and that is all that can be urged against it since the enforcement of their claims; for whatever of the fund may be left after satisfying them, belongs to the vendee as owner. He takes it by virtue of his title under the contract. Again it is said, if the contract is not illegal so as to forbid. the recovery, there is a failure of consideration arising from the interference of the creditors. This question depends upon the nature of the contract itself. If the title had failed upon an eviction by title paramount, the defendant could not have set up this by way of defence, unless there had been a warranty express or implied, or fraud on the part of the vendor ; nor, which is the same thing, sustained an action to recover back the consideration Nellis v. Clark. Sugd. on Vend. 337. paid. 2 Caines, 188. Sugd. on Vend. 337. Id. on Sales, 23, 24. 1 Jac. & Walk. 556. 3 Munf. 243. In the absence of either, the vendee is deemed to have taken upon himself the risk of the title as a part of his contract. But here has been no eviction by title paramount, and therefore it is quite immaterial what may have been the covenants in the deed, or representations at the time of the sale. Neither is any defect of title at the time of the sale pretended; indeed, we may say, from the ground upon which this defence is placed, it is conceded to have been good; for the only defect set up or relied upon, is one that arose out of the purchase itself, made by the defendant, and which implies that previously to that time the title was unexceptionable. Then, is there any general principle upon which the vendor can be made responsible for this ground of failure? There is certainly no covenant by him express or implied against the defect; and there can be no fraud, because we know that the eviction could not have taken place without proving that the vendee knowingly participated in that which has defeated his title. Without proof of such knowledge, there could have been no recovery against him. He took the title with full notice of the defect, and there is, therefore, no rule applicable to the construction of contracts which would make the vendor responsible under such circumstances. The case falls within the familiar principle, that imposes upon the purchaser the responsibility of any defects in the article of property whether real or personal, when he takes it with full knowledge, and without guarding against it by his contract. The defects in such cases enter into the contract and are presumed to modify it by reducing the price of the article sold; in this way the purchaser provides for the risk, or diminished value of the goods. The land is sold with a cloud upon the title : and the goods as unmerchantable. The price is adjusted accordingly, and neither party has cause for complaint. I presume in the case under consideration the defendant provided for the risk against the claims of the creditors, by an abatement of the full value of the land; or if he did not, it was his own folly. In any view that I can take of the case, the plaintiff is entitled |