Griffin v. Hasty
Decision Date | 28 February 1886 |
Citation | 94 N.C. 438 |
Court | North Carolina Supreme Court |
Parties | C. W. GRIFFIN v. J. C. HASTY et al. |
CIVIL ACTION, tried before Shipp, Judge, at Fall Term, 1885, of the Superior Court of UNION county.
This action, begun before a justice of the peace, and removed by defendants' appeal to the Superior Court, is for the recovery of the amount due on a note under seal, executed by the defendants, to J. W. Griffin, sheriff of Union county, and assigned by him to the plaintiff, for a valuable consideration. The claim is resisted upon an allegation of illegality in the consideration, and in the transaction in which it originated. The pleadings before the justice are drawn out at great length, and the facts upon which the defence rests, stated in detail. After several continuances, the cause came on for trial at Fall Term, 1885, and it was agreed that the Judge should take the papers, find the facts, and render judgment at Chambers.
His Honor found the facts as follows:
“The note in suit was given to J. W. Griffin, who was at the time Sheriff of Union county. He then had in his hands an execution against the defendant Hasty, in favor of one Houston, which was levied upon personal property, which property was claimed by another person, who had a mortgage on it, and asserted his title to it; the defendant in the execution resisted the officer at the time he took possession for the purpose of sale. The officer was the deputy of the Sheriff, and, when resisted, immediately telegraphed to the Sheriff. Thereupon the Sheriff went to the place, some distance from the town. The Sheriff had previously advertised the property for sale, and had taken bond for its delivery, and had postponed the sale, from time to time, at the request of the defendant in the execution.
When the Sheriff went to the place, he and the defendant had some negotiation, and agreed to settle upon the following terms:
The defendant was to pay so much money at the time, and give a note for the balance of the judgment, embracing costs of transportation, &c.
The note in suit was given in consideration of the above agreement, with the further understanding that it was not to be paid, unless the Sheriff was amerced for failure to sell. He was afterwards amerced and paid the same.
The note was transferred to the plaintiff, after maturity, for a valuable consideration.
There was a payment upon the note, before suit brought, of the sum of $2.00.
The mortgagee, one of the defendants in this action, was present at the time of the contest between the deputy Sheriff and Hasty, asserting his rights as above stated, and signed the note in suit.”
The Court thereupon rendered judgment in favor of the plaintiff, from which the defendants appealed, and filed the following exceptions:
The judgment is not warranted by the findings of fact, and ought to be in defendants' favor, for that it appears therefrom that the instrument sued on was taken by the sheriff in violation of a duty which he owed the plaintiff in the execution, and was, moreover, against public policy, as an indemnity for avoiding to do that which the law, as well as the mandate of the Court, enjoined upon him to do.
The second exception is to the failure to credit the debt with the payment of two dollars, and is admitted by the appellee.
Mr. D. A. Covington, for the plaintiff .
Messrs. Payne and Vann, filed a brief for the defendants .
SMITH, C. J. (after stating the facts).
As the plaintiff took the note under an assignment made after its maturity it passes into his hands, subject to all the infirmities and defences to which it was exposed when held by the assignor.
It is an established principle governing the law of contracts, that they will not be enforced when resting upon a consideration against good morals, public policy, or the law, common and statutory, and it is expressed in the maxim ex turpi causa, non oritur actio. This vitiating result follows, when the illegal purpose enters into, and forms a part of an entire indivisible consideration. King v. Winants, 71 N. C., 469. If it be the basis of several stipulations, some legal and some illegal, the whole contract is infected and rendered void. Lindsay v. Smith, 78 N. C., 328.
An illustration of the rule is afforded, in the case of a sheriff having final process in his hands, and finding property subject to seizure, in the possession of the judgment debtor, to which a third party makes claim. An indemnity given the officer for proceeding to levy and sell, in the bona fide purpose of contesting the validity of the opposing claim, is effectual for his protection, while such indemnity given by the claimant to induce the officer to forbear, and not proceed with the execution, would be inoperative. The distinction is, that in one case, the security is given in...
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