Downey v. Charles F.S. Gove Co.

• Decision Date: 26 February 1909
• Citation: 201 Mass. 251,87 N.E. 597
• Parties: DOWNEY v. CHARLES F. S. GOVE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 251

87 N.E. 597

DOWNEY v. CHARLES F. S. GOVE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1909

COUNSEL

Wm.

F Connor and John C. Cronin, for respondent.

OPINION

KNOWLTON C.J.

This is a bill in equity, brought to obtain an injunction to prevent the foreclosure of a mortgage of personal property by a sale in accordance with its terms, and to obtain a decree for the redemption of the mortgage. The plaintiff is the assignee of the mortgaged property under a voluntary conveyance for the benefit of creditors made by the mortgagor and maker of notes. He contends that the notes and mortgage are void because they were given in payment for intoxicating liquor the purchase of which was procured by solicitation, in violation of Rev. Laws, c. 100, § 52, in a city in which licenses of the first five classes are not granted.

The judge found that the purchase was obtained through such solicitation, made in the city of Cambridge in violation of the stature, and that the sale was made and the liquors were delivered there. Upon this finding of facts the sale was in violation of Rev. Laws, c. 100, § 1, and the contract of sale was illegal and void. The notes and mortgage given in payment for the liquors were also illegal, and the courts will not enforce them in favor of the holder. Brigham v. Potter, 14 Gray, 522; Baker v. Collins, 9 Allen, 253; Warren v. Chapman, 105 Mass. 87.

But this is not a case to enforce payment of the notes. The plaintiff, as assignee for creditors, has no greater rights than the person who obtained the liquors through this illegal contract. He comes into a court of equity and asks to be relieved from the contract which his assignor made. It is a familiar rule of law that one who seeks the aid of a court of equity must come with clean hands. Snow v. Blount, 182 Mass. 489-491, 65 N.E. 845; Lawton v. Estes, 167 Mass. 181, 45 N.E. 90, 57 Am. St. Rep. 450. The plaintiff comes as a participant in a violation of law by the making of an illegal contract. The court will give him no relief from the consequences of his participation in an unlawful act. The case is identical in principle with Atwood v. Fisk, 101 Mass. 363, 100 Am. Dec. 124, in which the maker of a promissory note and mortgage, given in consideration of a promise by the payee to forbear to prosecute for an embezzlement, asked a court of equity to compel the surrender or cancellation of the note and mortgage. The language of the court, in refusing to give the plaintiff relief because he was a party to the illegal agreement to compound a felony, is equally applicable to the present case. The rule stated is that the law 'will not recognize a right of action founded on an illegal...