York v. . Merritt , 77 N.C. 213 ( 1877 )

The facts are sufficiently stated by Mr. Justice Reade in delivering the opinion of this Court. Verdict and judgment for the defendant. Appeal by plaintiff. The plaintiff sues for a tract of land, and shows a deed from the defendant to him therefor. The defendant answers that although the deed is absolute on its face, yet in fact it was made under the supposition that it was only a security to the plaintiff for $100, and that upon the payment of that sum the plaintiff would reconvey; and he says he has paid $47 and tendered the balance; and upon payment of the balance, he prays that the plaintiff may be compelled to reconvey.

The findings of the jury sustain the allegations of the defendant, and his Honor gives judgment for the plaintiff for $53 and interest, and upon payment thereof to him directs that he shall reconvey the title to the defendant.

Upon the supposition that the facts are as found, and nothing more appearing, the judgment would seem to do justice to all parties; and it may be that the parties will yet find their interest in settling upon that basis. But the plaintiff appeals, and objects that the judgment is not according to law, and that he is entitled to a new trial. The findings of the jury seem to have been based upon the evidence of the defendant himself. He states that, being very much embarrassed, he consulted the plaintiff as an attorney at law; and the plaintiff advised him to go into bankruptcy, and offered to procure his discharge for $100, and advised him that he could convey the land to him to secure the sum, and that he executed the deed "upon the express agreement with the plaintiff that upon the payment of said sum of $100 he (the plaintiff) would reconvey the said land to the defendant." And he states that the land was (215) worth $750; that the deed was executed on 25 December, and on the next day he filed his petition and schedules in bankruptcy, the plaintiff preparing all the papers without disclosing the transaction. So that it appears that the plaintiff was to cover up the land for the defendant until he got his discharge in bankruptcy and then reconvey it to him.

This testimony discloses a transaction contra bonos mores, in which, both parties participated. But then it was not alleged in the complaint, nor in the answer, nor was there any issue submitted to the jury which, in express terms, involved it. It may, therefore, do the plaintiff injustice to assume its truth as to him; but we may assume its truth as to the turpitude of the defendant, because it is his own testimony; and, being true as to him, it shows that he is not entitled to the judgment which he obtained, and therefore there must be a new trial. Ex turpi causa nonoritur actio.

The alleged turpitude of the transaction, although so plainly stated in the testimony, seems to have been allowed no effect whatever in the trial. If this was because such things are so common that honesty is benumbed, it ought to be the oftener declared that the courts will not aid one party to enforce a fraud against the other; and that where both parties have united in a transaction to defraud another, or others, or the public, or the due administration of the law, or which is against public policy, or contrabonos mores, the courts will not enforce the agreement in favor of either party. King v. Winants, 71 N.C. 469, and cases there cited. We say nothing as to the validity of executed contracts where the aid of the court is not sought.

We forbear to say more upon the case presented, lest we might do injustice to the parties. A new trial, if the parties will venture upon it, will develop the facts on both sides.

PER CURIAM. Venire de novo.

Cited: York v. Meritt, 80 N.C. 285; Sparks v. Sparks, 94 N.C. 532;Pitman v. Pitman, 107 N.C. 162; Basket v. Moss, 115 N.C. 462; Bank v.Adrian, 116 N.C. 540, 543; Taylor v. McMillan, 123 N.C. 393; LeRoy v.Jacobosky, 136 N.C. 457; Edwards v. Goldsboro, 141 N.C. 72; Smathers v.Ins. Co., 151 N.C. 105; Pearce v. Cobb, 161 N.C. 302.

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