Hill v. Freeman

73 Ala. 200

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

SOMERVILLE, J.

— We understand it to be a first principle, not now’-to be assailed .or even doubted, that where a contract, based on a consideration contrary to law, immoral, or opposed to public policy, has been fully and voluntarily executed, if the parties are in pari delicto, the courts will not interfere to disturb the acquired rights of either at the instance of the other. The result is the same as if the contract had originally been legal and valid, and neither can recover the consideration which he has thus voluntarily parted with. — Bishop on Contr. §§ 140, 432; Morris v. Hall, 41 Ala. 510, 536; Boyd v. Barclay, 1 Ala. 34; Black v. Oliver, Ib. 449; Jacobs v. Stokes, 12 Mich. 381; Burt v. Place, 6 Cow. 431; Liness v. Hesing, 44 Ill. 113; 1 Story’s Contr. § 543;' 1 Addison on Contr. § 303; Williams v. Higgins, 69 Ala. 517.

It is of course settled that all illegal executory contracts are void, and no court will permit its aid to be invoked for their enforcement. — Bishop on Contr. § 458; 1 Addison on Contr. § 251, et seq.; Ware v. Jones, 61 Ala. 288. In Shiffner v. Gordon, 12 East. 304, Lord Ellenborough declared it to be a settled rule that “ when a contract which is illegal remains to be executed, the court will not assist either party in an action to recover for the no?i-execution of it.”

The present case manifestly falls within the first principle above enunciated. It is that of an executed contract in which nothing remained to be done by either party. Conceding that the deed from John Hill to the appellee was executed in consideration that one of the grantees would live with him in a future state of illicit intercourse or concubinage, the title of the land conveyed nevertheless passed to the grantees, and being in possession under their deed, they can not be dispossessed by the heirs of Hill, who can have no greater claim or right than the deceased grantor had. It is plain that such a contract, if unexecuted, could not be enforced in any court. Such was the ruling of this court in Walker v. Gregory, 36 Ala. 180. But the deed being executed and delivered, and the grantees being in possession, ejectment will not then lie to dispossess them. The maxim applies,_ In pari delicto potior est conditio possidentis.

There was no error in excluding the evidence offered by appellants, as the illegality of the consideration upon which the deed was based was immaterial.

The judgment is affirmed.