Berry v. Dunn

78 So. 51, 201 Ala. 275, 1918 Ala. LEXIS 257

• Court: Supreme Court of Alabama
• Decided: February 14, 1918
• Docket: 5 Div. 673.
• Status: Published

Opinion

SOMERVILLE, J.

[1] The crime of se< duction being a felony under our statute (Crim. Code, §7776), “there can be no question that the composition of the felony * * * 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.” Clark v. Colbert, 67 Ala. 92. In that case Judge Stone thus expresses the conclusion of the court:

“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 executory, ndr to rescind it and recover back the consideration when executed.”

[2] Complainant’s counsel concede that this is the law, but the insistence is that, properly applied, it forbids the respondent Bishop’s action on the notes, but not complainant’s suit in equity for restitution of the notes indorsed to Bishop. This theory, of course, assumes that the indorsement in question was nothing but an executory contract, against which equity will grant relief so long as it remains unexecuted.

Conceding, as claimed by appellant, that the bill shows a transfer of these notes by indorsement, since they could have been transferred in no other way, it becomes necessary to analyze the indorsement contract and observe its operation and effect.

Obviously in every indorsement completed by delivery there are two primary elements: (1) A transfer of the title to and property in the instrument; and (2) a new contract by which the indorser undertakes, conditioned on due diligence on the part of the holder, that it shall be accepted and paid according to its tenor.

So far as the transfer of the property is concerned, the contract is fully and irrevocably executed by the delivery of the instrument. It cannot be distinguished from the delivery of money or any other chattel, or a deed conveying land.

As to the indorser’s new conditional undertaking, it is, of course, strictly executory until his liability is established and payment made by him to the holder of the instrument accordingly. So in this case complainant’s obligation as indorser is purely executory, and, of course, not enforceable against her by her indorsee, the respondent Bishop.

But it does not appear that any effort has been or will be made to enforce complainant’s liability as such indorser. On the contrary, the action on the notes is only against the maker, Thompson, and payment thereof by Thompson would completely relieve complainant of her conditional liability as indorser, a result which the bill in fact seeks to prevent. Against that liability, if ever asserted, her remedy at law is adequate for all the requirements of the case.

The real purpose of the bill is the recovery of the notes and the reinstatement of complainant in their ownership. To this end she invokes the aid of a court of equity for the rescission of an executed agreement, and the recovery of the consideration which passed thereunder. To do this she must set up and rely upon the illegal contract itself. The authorities all forbid the granting of such relief in cases' like this, and we are constrained to hold that the demurrer to the bill was well taken and was properly sustained.

[3] The- bill does not make a case of duress, and there is nothing to show that the parties were not in paridelicto. It is to be observed also that, with respect to the preservation and recovery of gaming considerations, those cases rest upon statutes and decisions which render them sui generis, and without analogy in this particular to other classes of illegal contracts. See Fenno v. Sayre, 3 Ala. 458, 473; Barker v. Callihan, 5 Ala. 708; Roberts v. Taylor, 7 Port. 251; Foreman v. Hardwick, 10 Ala. 316, 325.

It results that the decree of the circuit court must be affirmed.

Affirmed.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.