Bass v. Smith

1903 OK 8, 71 P. 628, 12 Okla. 485, 1903 Okla. LEXIS 18

• Court: Supreme Court of Oklahoma
• Decided: February 5, 1903
• Status: Published

Opinion

Opinion of the court by

Hainer, J.:

The sole question presented by the record is the validity of the contract entered into between the plaintiff, Sarah C. Bass, and the decedent, David W. Smith. Was the contract a valid one? Can such a contract be enforced? We think these questions must be answered in the negative. Section 24 of the organic act of this territory provides as follows:

“That it shall be unlawful for any person, for himself or any company, association, or corporation, to directly or indirectly procure any person to settle upon any lands open to settlement in the Territory of Oklahoma, with intent thereafter of acquiring title thereto; and any title thus acquired shall be void; and the parties to such fraudulent settlement shall severally be guilty of a misdemeanor, and shall be punished upon indictment, by imprisonment not exceeding-twelve months, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment, in the discretion of the court.”

The contract which is attempted to be enforced in this action is not only in violation of, the organic act of this territory, which denounces such an act as a crime, but it is also' in violation, of the laws of the United States. It was therefore illegal. And'the law seems to be now well settled that no action, either at law or in equity, can be maintained on a contract that is forbidden by law. The sound policy of the law seems to be to leave the parties in all such eases without a remedy, since the courts will not lend their aid to a party who bases his action on a contract in violation of the organic law, or the statute, or upon an act that is immoral, or is in contravention of sound public policy. No legal right can arise from such a source. (Garst v. Love, 6 Okla. 46; Light v. Conover, 10 Okla. 732; Trist v. Child, 12 Wall. 441; Meguire v. Corwine, 101 U. S. 108; McMulleh v. Hoffman, 174 U. S. 639.)

However, the contract in the case at bar is to be distinguished from those contracts which are merely-void from excess of power, or want of compliance in some formal matter or which are defective in other essentials. It follows that the courts will not enforce the contract sued on, or permit a party to recover damages on account of the alleged breach thereof, or permit the party to recover the money advanced to carry into effect such an illegal transaction.

The judgment of the district court of Grant county was right, and is, therefore, affirmed, at the costs of the plaintiff in error.

Beauchamp, J., who presided in the court below, not sitting; Irwin, J., absent; all the other Justices concurring.