Mound v. Barker

44 A. 346, 71 Vt. 253, 1899 Vt. LEXIS 167

• Court: Supreme Court of Vermont
• Decided: February 11, 1899
• Status: Published

Opinion

Roweee, J.

When an agreement, innocent in itself, is designed by one of the parties to further a purpose forbidden by the law or opposed to its policy, courts will not enforce it in favor of such party nor in favor of the other party if he is implicated in such design. Thus, when property is leased with knowledge on the part of the lessor that the lessee intends to use it for an illegal or an immoral purpose and does so use it, the rent therefor cannot be recovered. Sherman v. Wilder, 106 Mass. 537; Riley v. Jordan, 122 Mass. 231; Ernst v. Crosby, 140 N. Y. 364; 2 Taylor, Land. & Ten., 8th Ed., § 521; Jennings v. Throgmorton, Ry. & M. 251 — 21 E. C. L. 744; Smith v. White, L. R. 1 Eq. Cas. 625.

Carrigan v. The Lycomin Fire Ins. Co. 53 Vt. 418, is not opposed to this, for there the liquors were legitimately used in the plaintiff’s drug business, though occasionally sold in violation of law, and no illegal design entered into the making of the policy.

The bond in suit was given by the defendant as surety for the lessees of a hotel, conditioned for the payment by them of the rent reserved, and was executed at the same time as the lease. The lease was innocent, in itself, but at the time of its execution and delivery, both the plaintiff, who is the lessor, and the lessees understood and expected that the hotel would be used, not only for the entertainment of' guests, but that intoxicating liquor would be sold therein in violation of law; and it was so sold, to the knowledge of the plaintiff. Therefore if this suit was upon the lease itself, it could not be maintained. It can be maintained no better on the bond, for when the foundation fails, all goes to the ground. Riley v. Jordan, 122 Mass. 231.

Judgment affirmed.