Hope v. Evans

1 S. & M. 195

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

This case was submitted, on motion to dissolve the injunction therein, on bill, answpr, and depositions.

In 1836, the complainant purchased of the defendant, Evans, a plantation and negroes, in the county of Yazoo, at the gross sum of $36,000, payable in instalments, at different periods thereafter; and then conveyed the same property, in trust, to secure the payment of the several instalments as they fell due. In the spring of 1842, there being then a balance of nine thousand dollars due, on the purchase, the trustees advertised, that they would sell the property under the deed of trust, to raise that sum. This bill was filed to enjoin that sale, and rescind the original contract, and to recover back the money paid thereon ; mainly on the ground, that a part of the slaves, which entered into the consideration of the contract, were introduced into this State, by the complainant, for sale, in violation of the law. This allegation of the bill is positively denied by the defendant, who states, that he was, at the time of the sale, and has since been, a citizen and cotton planter in this State, and that the slaves, referred to by the complainant, were purchased and brought to the State, and placed on his plantation, for his individual use. The deposition of Edwards, from whom Evans purchased the land, sold to the complainant, proves, that the additional slaves, brought into the State by Evans, were necessary for the cultivation of the land ; that the negroes, when brought here, were immediately placed upon it, and that.Evans had been a citizen of this State for five years, at the time of the sale, and had never been known to engage in the business of buying and selling slaves. That when Evans returned with the slaves, from Tennessee, he told the witness, that he had bought, or rather wished to buy, a place in Tallahatchie county, and wanted Edwards to release him from the purchase made of him. This deposition shows, in the first place, that the purchase of the slaves by Evans, in Tennessee, was rendered necessary for the cultivation of the plantation bought of Edwards, and sold to the complainant, and, to that extent, shows that they were not purchased for sale. In the next place, it accounts for the sale that was immediately afterwards made to the complainant, by showing that Evans had found another place, which he preferred to the one sold. The facts, thus detailed, are strongly in support of the answer, and the question is, Whether the positive statements of the answer, thus corroborated, are countervailed by the other proof in the case. The substance of the testimony of the other two witnesses, is, that Evans told them, after he purchased the plantation from Edwards, that he would bring some negroes from Tennessee, and supply the deficiency onf the place; and that he thought he would be able, in that way, to sell the plantation and negroes, for an advance upon what he gave for it; and that, shortly after bringing the slaves to the State, he sold to the complainant. This is the whole of the testimony upon which it is attempted to deduce the inference (for it leads to nothing more), that a part of the slaves sold(the complainant, in connection with the plantation, were brought here as an article of merchandise, and for sale. Is this testimony, leading to mere inferences, explained and weakened as it is by the testimony of Edwards, and opposed by the positive denial of the answer, to be taken as sufficient to fix upon a citizen, indirectly, the charge of violating one of the penal laws of the country ? I think not. Proof of mere admissions of a party, unsustained by any other circumstances, should always be cautiously weighed, because of their liability to be misunderstood, the facility of fabricating them, and the difficulty of disproving them. Where it is sought to set aside a contract, on account of the alleged illegality of the consideration, the proof should be full, clear, and direct to the point, and not rest upon remote inference or doubtful deduction. But even if the allegation of the bill, in this particular, were fully and clearly proved, I should still not be satisfied, that the complainant is entitled to the relief which he asks. It is quite clear, upon both principle and precedent, that I cannot decree a repayment of the money, which the complainant says he has already paid, if the contract, as is alleged, be illegal.

The complainant, by his own showing, knowingly entered into an illegal contract, and afterwards made large and voluntary payments thereon. He is, then, a particeps criminis, and, as such, has no claim to recover back the money, either at law or in equity; the maxim, volenti non fit injuria, applies equally in both courts. (Merwin v. Huntington, 2 Conn. Rep. 209 ; 1 Salk. R. 22; Douglass, Rep. 673 ; Sprague v. Birdsall, 2 Cow. Rep. 419 ; Clark v. Dutcher, 9 Cow. Rep. 674 ; Greenwood v. Curtis, 6 Mass. R. 381.) This latter case is worthy of some notice, because it is not very unlike the case before me, in some of its features. The plaintiff, in that case, brought a suit in Massachusetts upon a contract for the delivery of slaves. The Court held, that no recovery could be had, in that State, upon such a contract, being void by their laws. (Greenwood v. Curtis, 4 Mass. Rep. 93.) The plaintiff afterwards brought an action of assumpsit to recover back the money which he had paid and advanced upon the faith of that contract; when the same court held, that it was money voluntarily paid, on an illegal contract, and could not, therefore, be recovéred back. It is a general rule, that where a party knowingly and voluntarily pays money, which at law could not have been recovered, he can have no remedy to recover it back. (Morris v. Tarin, 1 Dallas, 148 ; Bogert v. Nevins, 6 Serg. and Raw. 369 ; 2 Conn. 209.) As, then, I cannot decree the money to be paid back, which has been already voluntarily paid, it would seem to follow that I should not disturb that portion of the contract which remains unexecuted ; as it is a well settled principle, that a court of equity will never decree a partial rescission of a contract; and' especially where, as in this case, the complainant insists that the contract is entire, and incapable of apportionment, and that the illegality, upon which the rescission is asked, goes to the whole consideration of the contract.

In the case of Fitzroy v. Gwillim (1 Term. Rep. 154), it was held, that where a party applies for a rescission of a contract on the ground of its illegality, the rescission must be total, for he should not be allowed to take any advantage under it. So in the case of Johnson’s heirs v. Mitchell’s heirs (1 Marsh. Rep. 227), the Supreme Court of Kentucky held, that an entire contract cannot be affirmed so far as it has been performed, and rescinded for the residue. In the case before me, the complainant has done acts, in the performance of the contract, which the Court, according to established precedents, cannot undo; and as I cannot, according to the authorities referred to, make a partial rescission, the complainant would seem, by his own conduct, to have precluded himself from any relief in this Court. I am of opinion, therefore, whether I look to the facts, or the law, of the case, that the injunction should be dissolved. ■