Watkins v. Nugen

• Decision Date: 11 August 1903
• Citation: 45 S.E. 262,118 Ga. 372
• Parties: WATKINS et al. v. NUGEN.
• Court: Georgia Supreme Court

45 S.E. 262

118 Ga. 372

WATKINS et al. v. NUGEN.

Supreme Court of Georgia

August 11, 1903

Syllabus by the Court.

1. The instrument involved in this case was a deed, and not a will.

2. A court of equity will not lend its aid to either party to an executed contract founded upon an immoral or illegal consideration.

3. A deed becomes an executed contract when signed and delivered. It is not essential that possession should be obtained under it.

4. A deed executed and delivered in consideration of a promise to do an immoral or illegal thing is not a gift, but an executed contract founded upon a consideration.

Error from Superior Court, Richmond County; E. L. Brinson, Judge.

Action by Robert S. Watkins and others against Eliza Nugen. Judgment for defendant, and plaintiffs bring error. Affirmed.

W. K Miller, for plaintiffs in error.

Salem Dutcher, for defendant in error.

COBB J.

This was a suit by Robert S. Watkins and others, claiming to be heirs at law of Wilson Watkins, deceased, to recover from Eliza Nugen a tract of land of which the defendant was alleged to be in possession. According to the allegations of the petition, Wilson Watkins died in 1902, and in 1897 executed a paper conveying to the defendant certain described property, to be held by her "after the expiration of the life estate herein reserved in fee simple forever." This instrument was in the form of a deed, and executed as such. It was made in consideration of the payment of $10, "and in consideration of [the grantor's] interest in the said party of the second part." The paper was duly recorded. It is alleged that the paper is void: (1) Because it is in fact a will, and not properly executed as such. (2) Because it was the result of fraudulent imposition upon the grantor by the defendant, who induced him to believe that the document was a will, and not a deed, and was of no effect whatever until after his death; that it provided for her only in case she survived him; and that, notwithstanding the execution of the paper, the grantor would still own the property absolutely. (3) Because the conveyance is founded upon, and is the result of, an agreement to do an immoral and illegal thing, to wit, an agreement on the part of the defendant a married woman, to live, contra bonos mores, and in open defiance of all public decency and law, in illicit relations for life with the grantor. The petition alleges that the defendant had been living in such relations with Watkins for several years prior to the execution of the paper, and that he was induced to sign the paper on account of representations of the defendant that unless he did so she would cease to continue illegal intercourse with him, and that the document was intended to provide for the continuance of further illegal and illicit relations between them, which relations were in consequence thereof kept up by her and him to the time of his death. The petition further alleges that by reason of the confidential relations existing between the defendant and Watkins, if any title passed under the conveyance, the same is held in trust for the use of plaintiffs as heirs at law. The prayers were for injunction, cancellation, etc. The court dismissed the petition on demurrer at the hearing, and plaintiffs excepted.

1. The paper executed by Watkins was not a will, but a deed conveying the property in praesenti, with right of possession postponed until his death. West v. Wright, 115 Ga. 277, 41 S.E. 602.

2, 3. It is as well settled as any proposition can be that neither a court of law nor a court of equity will lend its aid to either party to a contract founded upon an illegal or immoral consideration. If the contract is executed, it will be left to stand. If it be executory, neither party can enforce it. Howell v. Fountain, 3 Ga. 176, 46 Am.Dec. 415; Adams v. Barrett, 5 Ga. 404; Peacock v Terry, 9 Ga. 137, 147; White v. Crew, 16 Ga. 416; Ralston v. Boady, 20 Ga. 449; Bailey v. Milner, 35 Ga. 330, Fed. Cas. No. 740; Bugg v. Towner, 41 Ga. 315; Thompson v. Cummings, 68 Ga. 125 (2). In such a case one claiming under a party to the contract, as legal representative or heir, stands in no better position than the party himself, and the courts will afford him no relief. See McCleskey v. Leadbetter, 1 Ga. 551; Crosby v. De Graffenreid, 19 Ga. 290; Beale v. Hall, 22 Ga. 432 (8); Edwards v. Kilpatrick, 70 Ga. 328. It is argued, however, that a court of equity will interpose to prevent the enforcement of an executory contract founded upon an illegal or immoral consideration, and that the contract involved in this case was executory. It is contended that a deed does not become an executed contract until possession is obtained under it. Even if counsel's premise be conceded, we do not agree to his conclusion. There is no such thing in Georgia as livery of seisin. A deed is executed by signing and delivery. As was said in Adams v. Barrett, 5 Ga. 415, "the old doctrine of corporal investiture, etc., has no force now, and a deed is a seisin in law. A deed is a contract executed. Even if not recorded, it passes the title, as against the grantor, his heirs and devisees." The petition in the present case does not,...