Opinion
03-15-1895
BRINDLEY v. LAWTON.
W. D. Holt, for the motion. Edwin R. Walker and G. D. W. Vroom, opposed.
(Syllabus by the Court)
Bill by James Brindley, administrator, against Fanny Lawton, to recover certain shares of corporate stock. Heard on motion to strike out portions of the bill as scandalous and Impertinent. Motion granted.
W. D. Holt, for the motion.
Edwin R. Walker and G. D. W. Vroom, opposed.
BIRD, V. C. The complainant shows that he is the administrator of John Brindley, deceased; that the decedent left a widow and three children him surviving; that at the time of his death he actually lived and cohabited with the defendant, Fanny Lawton; that the decedent was, at the time of his death, entitled to the possession and was the owner of a certificate of stock of a certain pottery, which certificate represented 20 shares of the stock of said company, of the par value of $100 per share; that said certificate was afterwards ascertained to be in the possession of the defendant, Fanny Lawton; and that, when the possession thereof was demanded of her by the complainant, she refused to surrender the same, and claimed that it had been given to her by the said John Brindley, deceased, in his lifetime. The bill then charges "that, even if the pretense so last as aforesaid made of the said Fanny Lawton be true, nevertheless the said gift of stock by your orator's said father to the said Fanny Lawton is absolutely null and void, as being against public policy and good morals, because your orator's said father gave the said stock, if at all, to the said Fanny Lawton, as an inducement to and consideration for her living with him thereafter in a state of adultery, and that the said Fanny Lawton, in consideration thereof, thereafter did live with your orator's said father in open adultery, and was so living with him at the time of his death." The motion is to strike this out because it is Impertinent and scandalous. Since this is the foundation of the complaint, the whole structure must stand or fall with it. The allegation is that the certificate was given to her upon consideration of her submission to him in committing the crime of adultery. The gift is alleged to have been made before the offense against the law and good morals was committed. Can a court of equity grant relief in such case by compelling the donee to surrender the possession of the thing given as compensation for her part in the offense? Prof. Pomeroy, in speaking of contracts that are void or voidable because of their illegal or Immoral character, says: "Among the most important and familiar illustrations are the following: Contracts based upon the consideration, either past or future, of illicit sexual intercourse, or stipulating for such future intercourse, or in any manner promoting or furnishing opportunities for unlawful cohabitation or prostitution." 2 Pom. Cont § 936; 1 Story, Eq. Jur. § 296. That the contract presented by the bill was illegal and immoral is so declared in the bill itself. Will the court aid either party in asking for rescission? The answer to this was in the negative in the case of Ellicott v. Chamberlin, 38 N. J. Eq. 604. In that case, in order to induce the resignation of an executor, he was offered $10,000. After the payment of $5,000 In cash and the assignment of a bond and mortgage for $1,300, a promissory note was given for the remaining $5,000. After the payment of $2,500 on this note, an action at law was begun for the recovery of the amount due thereon. A bill was then filed in this court, presenting the whole transaction, and asking that the action at law be enjoined. The bill was dismissed by the chancellor. An appeal was taken. In delivering the opinion of the court of errors, Mr. Justice Parker used the following language: "There is no doubt that Mrs. Ellicott could have successfully resisted payment of any part of the money she agreed to give Mr. Chamberlin for the renunciation of his executorship, had she interposed defense; but she chose voluntarily to pay the greater part of the money, and she cannot now recover what she has paid. She was a participant in an Illegal contract for the purpose (as the evidence shows) of obtaining for herself the administration of the estate. If a contract be illegal as against public policy, its invalidity will be a defense while it remains unexecuted. If the Illegal contract be in part performed, and money has been paid in pursuance of it, no action will lie to recover the money back. Smith, Cont. 259. The law will not assist either party to an illegal contract, and, the parties being in pari delicto, it will leave them where it finds them. If the contract be still executory, it will not enforce it; and, if already executed, it will not restore the price paid nor the property delivered. Setter v. Alvey, 15 Kan. 157. Mrs. Ellicott cannot, therefore, compel the payment of the money she gave Mr. Chamberlin on the agreement or on the note, nor can she compel the assignment to her of the Yauger bond and mortgage, as prayed for in her bill. To that extent the contract has been executed. But she can resist the payment of the balance of the note, for which suit has been brought. Her defense to the note can, however, be made in a court of law, and therefore the suit in the circuit court, already commenced, should not be enjoined. The bill was properly dismissed by the chancellor without costs. Johns v. Norris, 27 N. J. Eq. 485; Slocum v. Wooley, 43 N. J. Eq. 451, 11 Atl. 264. With these cases before me, it is needless that I should go further. The motion to strike out must prevail, with costs.