Finley v. Williamson

• Decision Date: 04 November 1919
• Parties: ALICE FINLEY, Respondent, v. WILLIE WILLIAMSON, Appellant
• Court: Missouri Court of Appeals

215 S.W. 743

202 Mo.App. 276

ALICE FINLEY, Respondent, v. WILLIE WILLIAMSON, Appellant

Court of Appeals of Missouri, St. Louis

November 4, 1919

Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Jno. B Dempsey and Rozier G. Meigs for appellant.

(1) The court erred in ruling that the plaintiff in replevin can recover upon a prior valid title to the property, provided that she can make her prima-facie case without reference to an intervening illegal transaction by which possession passed to the defendant, notwithstanding that defendant pleads and proves the illegality of the transaction. Notes to 9 Cyc 557; Martin v. Hodge, 47 Ark. 578; Allenback v Hunseker, 132 Pa. 349; Sawyer v. Sanderson, 113 Mo.App. 233; Standard Furniture Co. v. Van Alstine, 51 L. R. A., p. 889. (2) The court erred in setting aside the verdict of the jury and in sustaining plaintiff's motion for judgment non obstante veredicto and in rendering judgment therein for the plaintiff. Elliott on Contracts, sec. 745 1066 and 1067. (3) The plaintiff in replevin must recover if at all on the strength of his own title or right of possession, and not upon the weakness of that of his adversary. 34 Cyc. 1501; Stone v. McNealy, 59 Mo.App. 396; Andrews v. Costican, 30 Mo.App. 29; Maryville National Bank v. Snyder, 85 Mo.App. 82. (4) Conducting the business of a bawdy house is malum in se. And no contract involving the sale of such a business or in enforcing any contract right when the parties are in pari delicto can be enforced at law or in equity. Sprague v. Rooney 104 Mo. 358. (5) An immoral, illegal contract having been entered into and fully executed by parties who are in pari delicto cannot be enforced. It is the duty of the court when such facts appear to grant no relief to either party, but to at once, by appropriate orders and judgments, leave the guilty parties where it found them, and in replevin this can be effectuated only by return of the property to defendant. 35 Cyc. 1509, text and cases cited; Elliot, Contracts, secs. 745-1066; Parsons v. Randolph, 21 Mo.App. 353. (6) Party who is in pari delicto may set up the illegality of the transaction and he will be heard, not for his sake, but because of the principles of public policy which refuses the courts' aid to a party in search of relief. Standard Furniture Co. v. Van Alstine, supra; In re T. H. Bunch Co., 180 F. 519; Sawyer v. Sanderson, supra; Ulman v. Fair Assn., 167 Mo. 273; McDermott v. Sedgwick, 140 Mo. 172; Gwyn v. Williamson, 26 Mo 100. (7) Right to possession in replevin must be shown as at the commencement of the action. Prior possession is material only as it throws light upon the present right. 34 Cyc, 1470; Cobbey, Replevin, sec. 98; Morgner v. Briggs, 46 Mo. 65. (8) Replevin is strictly a proceeding at law; it cannot be invoked as an equitable proceeding for rescission or cancellation of a contract. Fredericks v. Tracey, 98 Cal. 658; Monarity v. Stofferan, 89 Ill. 528; Thompson v. Peck, 115 Ind. 512; Penton v. Henson, 13 Okla. 450; Marlott v. Warwick & Smith, 19 N.J.Eq. 439. (9) Sale of property by a vendor who not only knows the purpose to which they are to be put, and that that purpose is unlawful and where the vendor actively shares in carrying out the illegal purpose and receives every dollar of the consideration from the illegal, immoral business deprives the vendor of every right to relief from his own wrong. Hodgson v. Temple, 5 Term. R. 181; Hannaurr v. Doane, 79 U. S. S.Ct. 342; Thomas v. City of Richmond, 79 U.S. 12 Wall. 349, 6 R. C. L. 696; St. L. Fair Assn. v. Carmody, 151 Mo. 566.

Stern & Haberman and John M. Wood for respondent.

(1) Plaintiff, having shown her right to the possession of the chattels without recourse to any illegal contract, and entirely independent of any such contract, was entitled to judgment for such possession. In re Bunch, 180 F. 524-5; Martin v. Hodge, 47 Ark. 378-384; Binks v. Harris, 91 Ark. 205, 208; National Bank v. Petrie, 189 U.S. 423; Miller v. Amman, 145 U.S. 421; Allebach v. Hunsacker, 132 Pa. 349; Allebach v. Godshalk, 116 Pa. 444; 9 Cyc, page 557; Roselle v. Beckerneice, 134 Mo.App. 380. (2) Defendant cannot, by resorting to proof of an illegal contract, defeat plaintiff's right to recover when plaintiff's right to recover is established by evidence unconnected with and entirely independent of any illegal contract or transaction. See authorities under Point 1. (3) Defendant, having admitted in her answer that plaintiff was the owner of the property on May 28, 1913, such ownership is presumed to continue and with it the right to its possession up to the time of the bringing of the suit. Swisler v. Storts, 30 Mo.App. 167; Nicholls v. Lead Company, 85 Mo.App. 586; In re Gehrigs' Estate, 27 N.E. 785 (N. Y.); Magee v. Scott, 63 Mass. 150; Sawles v. Carr, 38 A. 77. (4) Plaintiff was entitled to an instructed verdict at close of whole case. (5) The judgment of the court below, non obstante veredicto, was a judgment on the pleadings, and, therefore, proper, because the plaintiff was entitled to a judgment on the pleadings. Shearer v. Trust Co., 136 Mo.App. 229; Hurt v. Ford, 142 Mo. 283; Billows v. Shannon, 2 Hill 68; Bradshaw v. Hedge, 10 Iowa 402; Williams v. Anderson, 9 Minn. 39; Buckingham v. McCracken, 2 Ohio St. 287; Bradley v. Caswell, 65 Vt. 231; Friendly v. Lee, 20 Oregon, 202.

ALLEN, J. Reynolds, P. J., and Becker, J., concur.

OPINION

ALLEN, J.

At the last term of this court an opinion herein was handed down, reversing the judgment below and remanding the cause with directions to enter judgment for defendant on the verdict which the court had set aside. Thereafter, on respondent's motion, we granted a rehearing, and the case has since been reargued and resubmitted.

The action is one in replevin. The petition, filed May 22, 1914, is in the statutory form and alleges that plaintiff is the owner and lawfully entitled to the possession of certain personal property, to-wit, certain household goods, consisting of furniture, carpets, fixtures, utensils, etc., alleged to be situated in houses numbered 2633, 2635 Lucas Avenue in the City of St. Louis; the same has not been seized under any process, execution or attachment as property of plaintiff, but is wrongfully detained by defendant at the location mentioned, and that plaintiff will be in danger of losing said property unless it be taken out of the possession of the defendant or otherwise secured.

On the same day plaintiff filed her replevin bond, and the sheriff took possession of the property under the writ and delivered it to plaintiff, taking her receipt therefor.

Because of the nature of the case, as it reaches us on appeal, the answer, though lengthy, will be set out in full. It is as follows:

"Now at this day comes defendant Willie Williamson, and by leave of Court first had and obtained, files this, her answer to plaintiff's petition, and for such answer denies each and every allegation in plaintiff's petition, and further this defendant claims all of the property described in plaintiff's petition, the same having been taken from defendant by the Sheriff of the City of St Louis, Mo., on an order of delivery heretofore made and entered in this cause, and defendant now declares that said property is of the value of six thousand ($ 6,000) dollars; that she has been damaged by the taking and detention thereof in the sum of two thousand ($ 2,000) dollars, and she demands the return of said property to defendant, the said Willie Williamson.

"And for further answer to plaintiff's petition defendant says, that for a long time prior to the 28th day of May, 1913, and upon said last-mentioned date, the plaintiff herein, Alice Finley, had been and was then the owner of all the goods and chattels described in the petition in this cause; that during all of said time the said plaintiff was the proprietress of and was conducting a bawdyhouse or brothel in the premises numbered 2633 and 2635 Lucas avenue in the City of St. Louis, and that all the goods and chattels aforesaid were used in and about and for the purpose of enabling said plaintiff to conduct said bawdyhouse or brothel; that this defendant was an inmate of said bawdyhouse or brothel so conducted by the plaintiff herein; that on the 28th day of May, 1913, the plaintiff herein, well knowing the avocation of this defendant, negotiated with her for the purchase of the goods and chattels aforesaid, and for the sale by said plaintiff of said goods and chattels, together with the so-called good will and business theretofore conducted at said premises by the said plaintiff; that in said negotiations and in the contract of sale hereinafter pleaded, as well as in the receipt of the various sums of money hereinafter pleaded, the plaintiff herein well knew that the purpose of said purchase by this defendant, and the use to which all of said goods and chattels were to be put by defendant was to continue to operate upon and within the premises wherein said goods and chattels were then placed a bawdyhouse or brothel, that is, that plaintiff well knew that she was disposing of all of said goods and chattels to defendant to be used in maintaining a bawdyhouse or brothel, and that plaintiff well knew that the defendant expected to make all the deferred payments upon said purchase out of the profits realized from the conduct of said bawdyhouse or brothel, and that all of said goods and chattels were to be used to enable defendant to obtain the money with which to meet her payments upon said purchase through the conduct of a bawdyhouse or brothel.

"Defendant says further that on the 28th day of May, 1913, she paid to plaintiff the...