Crum v. Carrington Shoe Co.

• Decision Date: 11 February 1895
• Citation: 72 Miss. 458,16 So. 674
• Court: Mississippi Supreme Court
• Parties: C. LEE CRUM v. CARRINGTON SHOE CO

16 So. 674

72 Miss. 458

C. LEE CRUM v. CARRINGTON SHOE CO

Supreme Court of Mississippi

February 11, 1895

FROM the circuit court of Marshall county. HON. EUGENE JOHNSON Judge.

Judgment reversed.

C. Lee Crum, appellant, pro se.

The fact that Graves & Son did not pay sufficient privilege tax cannot affect a contract between H. L. Graves, as an individual, and Spencer. Besides, this is a contract between Graves and the trustee on one side, and Spencer on the other. 62 F. 4; Bishop on Contracts, § 627; Benj. on Sales § 342; 42 Miss. 121. Even if the contract cannot be enforced while executory, it is valid when executed. 9 Am. &amp Eng. Enc. L., 933; Smith on Contracts, 272. The objection to the validity of the contract cannot be made by creditors of one who has purchased from the delinquent. The section merely prohibits the wrongdoer, or those claiming under him, from maintaining a suit on the contract.

R. T. Fant, for appellee.

Our court has never lost an opportunity to brand as invalid all contracts growing out of a business conducted by one in default for his privilege tax. See Dean v. Robertson, 64 Miss. 195; Bowdre v. Carter, Ib., 221; Pollard v. Insurance Co., 63 Ib., 244; McIver v. Clarke, 69 Ib., 408; Williams v. Simpson, 70 Ib., 113. It makes no difference that the controversy is between the delinquent taxpayer and the creditors of Spencer. The statute provides that suit shall not be maintainable in favor of any such person, on any such contract. The effect of this is to deny the holder of such contract access to the courts for its enforcement. The question involved here is not so much as to the rights of the creditors of Spencer as to the right of Graves to ask the aid of the court in enforcing the trust-deed upon which he predicates his right to recover. An illegal contract cannot be made the basis of judicial proceedings. 36 Am. St. R., 303; 9 Ib., 211.

OPINION

COOPER, C. J.

By § 589 of the code of 1880 it was declared that all contracts made with any person who should violate the provisions of the act of which that section was a part, by transacting the business to which the act related without payment of the privilege tax therefor, in reference to the business carried on, should "be null and void, so far only as such person may base any claim upon them, and no suit shall be maintainable on any such contract." The facts appearing of record in this cause are that Graves & Son were transacting business as merchants without having paid the privilege tax required by the statute for transacting such business. In March, 1893, one of the members of the firm sold to one Spencer the stock of goods and took his note therefor for the sum of fifteen hundred dollars. To secure the payment of this note, Spencer, on November 2, 1893, executed a deed of trust upon the property seized in this suit to one Crum as trustee, and placed the trustee in possession thereof. By the terms of the deed the trustee was authorized and required to advertise and sell the stock of goods for the payment of the secured debt, unless the same should be paid on or by December 1 thereafter. On November 13 the appellees, creditors of Spencer, sued out an attachment against him, which was levied on the goods in the possession of the trustee, who interposed a claim thereto. On the trial thereof the jury rendered a verdict in favor of the plaintiffs, and from a judgment thereon the claimant appeals.

The effect of this statute has been considered by this court in quite a number of cases, and we have uniformly held that the violator of the law cannot invoke judicial action to enforce the condemned contract, or to enforce against the other party a security given therefor. Pollard v. Insurance Co., 63 Miss. 244; Bowdre v. Carter, 64 Miss. 221, 1 So. 162; McIver v. Clarke, 69 Miss. 408, 10 So. 581; Williams v. Simpson, 70 Miss. 113, 11 So. 689.

But, in Dean v....