Brown v. Wylie

2 W. Va. 502

Opinion

Brown, President.

Several questions arise in this case and will be considered in order.

The bill sets forth a sale and conveyance of land, part of the price paid down, and a trust deed on the land to secure the bonds given for the residue of the purchase money. The prayer is for a sale of the trust subject to pay the debt and for “ such other and further relief in the premises as comports with equity and good conscience and is applicable to the case.”

The first question is, will this warrant a decree rescinding or rather avoiding the whole contract. The rule is briefly and tersely stated in Adams’ Equity, 309. If the plaintiff1 in his special prayer mistake the due relief it may be given under the general prayer, if consistent with that which' is actually prayed. If inconsistent it cannot be obtained, and, therefore, if the plaintiff doubt as to the proper relief he may frame his prayer in the alternative, have either one relief or the other as the court shall decide. No relief can be granted under the general prayer entirely distinct from and independent of the special relief prayed. Every fact essential to the relief sought must be stated in the bill, for no facts are properly in issue unless charged in the bill; no proof can be offered of facts not stated; nor can relief be granted of matters not charged, although apparent from other parts of the pleading and evidence, for the court pronounces its decree secundum allegata et probata. The reason of this is that the defendant may be apprized by the bill what are the charges he is to answer or defend. Story’s Equity Pleading, section 257; and 1 Dan’l Chy. Prac., 435, and the authorities cited in the argument. The relief granted under the prayer for general relief must not only be sustained by the facts stated in the bill, but must also be consistent with the special relief prayed fur. Tested by these principles how does the present case stand? The facts stated in the bill for specific performance, and a special prayer for same are inconsistent with relief granted, viz : a rescission or avoidance of the contract, and such as it was error to grant under the prayer for general relief in such case, however proper such relief might have been upon a proper ease stated.

Another point is whether certain persons were officers and their official acts valid, who were duly elected and qualified as justices of the peace, in and for the county of Monroe, and another as clerk of the circuit court of said county, under the laws of Virginia prior to the 17th day of April, 1861, and whose offices, but for the rebellion and their complicity in it, would not have expired, under the laws of Virginia, till after 1864, but which persons after the inauguration of the State of West Virginia, in 1868, performed official acts in said county in 1864, assuming and certifying themselves to be such officers, respectively, not of the restored government of Virginia, holding over and acting under the authority of the ordinance of February 19th, 1863, until their successors were appointed and qualified, nor under the authority of the State of West Virginia, but as officers of the usurped government at Richmond. That such persons so acting were not officers either de jure or de facto has been repeatedly determined by this court, nor were their acts as such valid or effective to any intent, but on the contrary utterly void in law. Hood vs. Maxwell, 1 West Virginia, 219, and Hedges vs. Michael, Williams vs. Freeland, Nadenbousch vs. Sharer, Hawver vs. Seldenridge, and Burkhart vs. Jennings, reported in 2 West Virginia. In other words the 6th section of the ordinance of February 19th, 1868, only applied to the officers of the restored government of Virginia, within the limits of the new State, who held their offices and exercised the authority thereof, under the authority and in harmony with the said government, and not to those who assumed to act under the authority and in the interest and aid of the usurpation at Richmond, which they called the government of Virginia,

Another point is whether a note payable in the so-called Confederate paper is illegal and void. This paper issued from parties combined to overthrow the lawful government and with the intent by that instrumentality in part, of effecting the treasonable object. It only professed to be payable in the event of the successful accomplishment of that object. . It was the life blood of the rebellion, an unlawful means to an unlawful end, by the parties engaged in the unlawful enterprise, and appealed directly to the interest of every holder to aid in its accomplishment. It was contra bonos mores and against sound policy, and of only evil tendency, and was, therefore, illegal. I think the circuit court of Monroe so far as it held the contract payable in 'Confederate money, so called, to be illegal and void, pronounced the law correctly. In the case of the Bank of Tennessee vs. the Union Bank of Louisiana, American Law Review for January, 1868, it was held by the United States circuit court for Louisiana, that the formation of the government of-the so-called Confederate States was unlawful, and the emission of bills of credit by it was unlawful; that the Confederate treasury notes issued and circulated as money were bills of credit within the meaning and prohibition of the constitution, and therefore an unlawful issue, and that all dealing in such notes was unlawful, and all obligations arising therefrom or founded thereon were also unlawful and without legal consideration. In the case of Campbell vs. Anderson’s adm’r, 2 Duvall, 384, C. placed Confederate notes or bonds in the hands of A., with which to buy cotton. A. was to re-sell the cotton so bought, and, after deducting costs and commission, to pay over to C. the proceeds. In an action by C. to recover such proceeds, held, that the contract was against public policy and could not be enforced. In Spencer vs, Wilson, 1 Rand., 76, all dealings in uncliar-tered and illegal bank notes are beld void. It is contended, however, that inasmuch as the contract in question was en tered into before the close of tbe war, within that part of the State where the insurgents had sway by a military force which the lawful government was not then able to overcome, that it is, therefore, lawful, because authorized by the, for the time, dominant authority of the so-called Confederacy, and that being so lawful at the time the contract was entered into by the parties while under such domination, it could not become unlawful by the subsequent triumph of the lawful government and restoi’ation of its authority and laws. But the fallacy is in supposing the illegality is to be tested by the pretended laws of the insurgent authorities, instead of lay the laws and authority of the lawful government. The two cannot stand together. It would be a strange anomaly if the authority of the lawful government upon being fully restored should be used in executing acts done in conformity to the pretended laws of a hostile combination to subvert its authority, and in violation of its own laws. The fact, therefore, that the insurgents held sway in Monroe county, at the date of the contract, cannot relieve the transaction of its illegal character, as tested by the laws of this State, and which alone the courts sit to administer as applicable to the dealings of the parties who are and were subject to their control. The courts of this State cannot recognize as operative within her limits the authority and laws of other States, much less the authority and laws of a temporary and insurrectionary usurpation.

I am of opinion, therefore, that every contract payable in the so-called Confederate paper, or the consideration of which was such paper, is void in law, and a court of equity will not lend its aid to enforce its execution, and when the parties to it are in fari delicto, as in this ease, the court will equally withhold its aid from the guilty party who would invoke it to get rid of such illegal contract executed.

Applying these principles then to the case under consideration, I am of opinion that the sale and conveyance of the land by "Wylie to Brown to be paid for in Confederate money so-called, was an illegal, but, nevertheless, an executed contract, which though void as to everybody else, yet had the effect to transfer the title to the land to-the vendee. Inhabitants of Worcester vs. Exton, 11 Mass., 375; Brookover vs. Hurst, 1 Metcalf, Ky., 667; and a court of equity will not lend its aid to the guilty vendor to protect him. from the consequence of his own illegal act, or aid him to recover hack the land so conveyed away. I am further of opinion that the notes given for the purchase money of said land payable in Confederate money so-called, and the trust deed to secure them were illegal and void, and that a court of equity will not lend its aid to enforce the payment of them, either by decreeing payment of them or selling the land for that purpose, neither will it lend its aid to the maker of the notes to have them cancelled, but will' leave the parties in pari delicto to rest in the condition in which they have placed themselves.

I am further of opinion that Jacob Osborne and David Tomlinson being complete purchasers, without notice from Brown, are entitled to hold the land free from the claim of said Wylie.

I think, therefore, that the decree of the circuit court should be reversed and the bill dismissed with costs to the appellants in both courts.

The other judges concurred.

Decree REVERSED, and bill dismissed.