Allison v. Hess

28 Iowa 388

Opinion

Cole, Ch. J.—

i. JuneaiENT.: estoppel • res acijudicata. The petition alleges that in June, 1865, the plaintiffs were the owners of a certain forty acre tract of land in Lucas county, and had resided " * thereon, as their homestead, for about nine yearn; that the defendant, as prosecuting witness, had caused their son, Henry Allison, to be arrested and held for examination upon the criminal charge of concealing stolen money, etc., and was about to prosecute him to conviction and have him punished therefor; that said defendant came to plaintiffs and it was agreed between them, that in consideration of the conveyance by plaintiffs to defendant of their homestead, the defendant would give them a lease of it for eight months free of rent, and would not appear as a witness in the criminal prosecution against their son Henry, but would have the same dismissed, and have him discharged from arrest; that the deed and lease were executed accordingly, and defendant did not appear as witness against Henry, and he was discharged. That defendant had brought suit for forcible entry and detainer against plaintiffs, before a justice of the peace, and upon trial there the plaintiffs in this action (defendants therein) were successful, but the said Hess had appealed said action to the District Court, and would succeed therein by reason of the conclusiveness of the lease, etc., unless enjoined, etc., and the lease declared by a court of equity to be void, etc.

The defendant denies the compromise of the felony as alleged, and avers that the homestead was really the property of Henry, who had in his possession the money of defendant, which had been stolen from him, to an amount largely in excess of the value of the property, and the same was conveyed to him in consideration of the money thus received and held by him; the defendant also pleads a prior adjudication.

Upon the question of prior adjudication, the proof shows that the plaintiffs brought their action in equity, alleging substantially, though not as fully, the same matters as are set forth in the petition in this action; that the defendant demurred thereto, and the demurrer was sustained, but no judment was entered thereon, and the plaintiffs had leave to amend. That afterward the parties agreed in writing that the surety on the injunction bond should be released from all liability thereon, except for costs, and the plaintiffs abandoned that action. We hold, upon these facts, that such prior proceedings do not constitute a bar to this action.

2. contbacts: compoundingCt' felony. The testimony in the cause satisfactorily establishes the fact that the conveyance and lease were parts of one and the same contract, and that they were executed in furtherance of and pursuant to the illegal contract for the compromise of the felony with which Henry was charged, and from the prosecution for which he was dismissed.

The compromise or compounding of a felony is prohibited by our statute (Eev. §§ 4286, 4287), and the penalty of imprisonment is prescribed therefor. And the rule seems to be well settled, that where a contract is illegal, whether it is because of being malum prohibilmm or mal/um i/n se, the law will not afford affirmative relief to either, but will leave the parties as it found them. Marienthal et al. v. Shafer et al., 6 Iowa, 223, and authorities there cited; Guenther v. Dewien, 11 id. 133; Pike v. King, 16 id. 50. Whether the defendant, Hess, can recover upon the lease in his action for forcible detainer, we cannot now in this case properly determine ; but it is quite apparent that, under tbe general rule above stated, these plaintiffs, who are shown to bejparUceps criminis, are not entitled to the affirmative relief afforded by an injunction against the prosecution of the action for forcible detainer, or by declaring the lease null and void.

Affirmed.