Evans v. Dravo

• Decision Date: 01 May 1855
• Citation: 24 Pa. 62
• Parties: Evans versus Dravo.
• Court: Pennsylvania Supreme Court

24 Pa. 62

Evans versus Dravo.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

Williams, for the plaintiff in error.

Stanton and Shaler, for the defendant in error.

The opinion of the Court was delivered by WOODWARD, J.

The important question in this case raised, both upon the bills of exception to evidence and the charge of the Court, is whether a husband can recover in a covenant made between him and others for the purpose of defrauding his wife out of her interest in real estate owned by him — or in other words, whether obligors in a fraudulent bond can shield themselves from liability by alleging their own fraud.

This obligation does not belong to the class of contracts forbidden by statute or public policy. It is simply a covenant for the sale and purchase of land. The defendant and his co-obligors, recite that Evans had, at their instance and request, bargained and sold a lot to Richard B. Gilpin for a rolling-mill, at $500, which he valued at $2500, and Evans having remitted $2000 from the price, they bind themselves, on the delivery of the deed to Gilpin, to pay the said sum of $2000. The evidence discloses the fact, that the real and true consideration of the bond was to move from Mrs. Evans. Her husband was already bound to convey his title to Gilpin for $500, a price at which he had been induced to sell by the speculative advantages of a rolling-mill in his neighborhood; but his wife, not as sensibly affected by the prospect of those advantages as her husband, refused to join in a deed unless $2500, the price they had been offered for the lot, should be secured to them. This was what brought the bond into existence. On the delivery of it to her husband, Mrs. Evans executed and acknowledged the deed to Gilpin. The seals import a consideration; but a fair, valuable, and ample consideration is expressed visibly on the face of the instrument, and explained fully in the proofs. A covenant founded on such a consideration contravenes no rule of law or morals.

On the instrument, thus lawful and valid, Evans brought this suit. The defendant pleaded non est factum, but that put in issue nothing but the execution of the instrument, which being duly proved or admitted on the trial, this plea was answered. He pleaded also non infregit conventionem, a plea which left the onus still on him, for the covenant being for payment of money it was not for the plaintiff to show it had not been paid, but for the defendant to show it had been. The plea, though in form a negation, was in fact an affirmation, and there was no evidence to sustain it.

It was lawful, however, for the defendant, under our blended system of law and equity, to set up any facts in defence which, though not amounting to payment, would excuse non-payment — anything which would show that in good conscience he ought not to be called on to perform his covenant. The facts relied on for this purpose are described in the defendant's affidavit, and they are in substance that this bond was got up to induce Mrs. Evans to sign the deed to Gilpin, but as soon as she had done it, and the deed should be delivered, the bond was to be cancelled or delivered to the obligors — was not to be paid.

At law nothing but payment would discharge the bond; and if the defendant is relieved by the facts alleged, it must be by the interposition of equity. The plaintiff needs no aid from equity — he stands on his legal rights; his action is according to strict law to compel performance of the covenant, or compensate himself in damages for its breach. The defendant is in the posture of a party in a Court of Equity, asking that the plaintiff shall be restrained from asserting his legal remedies, and that the bond shall be cancelled according to the secret agreement. Would a chancellor listen to a party seeking relief from the consequences of his own fraud? Never. He would tell him that he who hath committed iniquity shall not have equity; that as he made his bed so shall he lie; that who seeks equity must do equity; and that no man shall be received to allege his own turpitude. The maxim of the common law is to the same effect, Ex dolo malo non oritur actio. And no man, said Lord MANSFIELD, 1 W. Black. 364, shall set up his own iniquity as a defence any more than as a cause of action.

But it is insisted that the plaintiff was in pari delicto, and that the maxims apply to him and his action as well as to the defendant. That he was party to the fraud practised on his wife is not to be doubted, since the verdict has established it; but if he needs no assistance from the fraud to make out his case, if he have a perfect cause of action without it, it is apprehended these maxims do not apply to him. "The test," says Judge DUNCAN, in Swan v. Scott, 11 Ser. & R. 164, "whether a demand connected with an illegal transaction is capable of being enforced at law, is, whether the plaintiff requires the aid of the illegal transaction to establish his case. If the plaintiff cannot open his case without showing that he has broken the law, the Court will not assist him, whatever his claim in justice may be upon the defendant." But we have seen that this plaintiff could not only open but prove his case without showing any infraction of law. The fraud contemplated consisted not in making the bond, but in the use that was to be made of it. It was lawful and fair for Mrs. Evans to demand a full price for the land in which she had an interest, and for the defendant to bind himself to...