Leverett v. Stegall , 23 Ga. 257 ( 1857 )

McDonald, J.

dissenting.

Notes were staked in this case. The legal title to a note, is presumptively in the party to whom it is made payable, if he have the possession, and it be not endorsed by him. To divest that title, there must be proof of some sort.

This is an action of trover for the recovery of a promissory note. The suit is by the maker against 'the payee. The simple production of the note, would prove title in the defendant. The plaintiff must rebut this proof. How can he do it ? He must prove the bet and rely on it to invalidate the title of defendant. It is the same thing as if he relied on it to make out his title in the first instance. We decided in the case of Alford vs. Burke, 21 Ga. 46, that if the Court is called on to decide on the validity of an illegal contract to sustain the right of the plaintiff, it will not do it. The greatest extent to which the Courts have gone, has been to allow a recovery in such case, from a stakeholder. While the deposit is in his hand, either party may disaffirm the illegal contract, and by proof that plaintiff deposited the money or goods in his hands, he may recover them. This he can always do, without relying on the illegal contract or alluding to it in the pleadings or evidence, but after the money or commodity has been delivered to the winner, he must rely on proof of the title by which the defendant holds and impeach it by showing the illegality of the contract. This he cannot do. In the language of the law, the Court will not hear him.

If the stakeholder pays money or delivers property after notice not to do it, by the party making the deposit, it or its value maybe recovered from him, and he cannot defend on the ground that he paid it to the winner, because the Court will not allow him to justify by the illegal transaction.