Hortenstein v. Clark, 6 Div. 895

• Decision Date: 30 April 1936
• Docket Number: 6 Div. 895
• Citation: Hortenstein v. Clark, 232 Ala. 479, 168 So. 564 (Ala. 1936)
• Parties: HORTENSTEIN v. CLARK.
• Court: Alabama Supreme Court

168 So. 564

232 Ala. 479

HORTENSTEIN v. CLARK.

6 Div. 895

Supreme Court of Alabama

April 30, 1936

Rehearing Denied June 11, 1936

Appeal from Circuit Court, Jefferson County; J.F. Thompson, Judge.

Suit in equity by Morris Clark against Clara Hortenstein. From a decree overruling a demurrer to the bill, respondent appeals.

Affirmed.

T.A Murphree and John S. Foster, both of Birmingham, for appellant.

A. Leo Oberdorfer and R.D. Coffman, both of Birmingham, for appellee.

ANDERSON Chief Justice.

Bill by appellee to cancel a deed to the appellant and the transfer of certain stocks and bonds because of undue influence and without consideration.

It is of course, a well-recognized maxim that he who comes into a court of equity must do so with clean hands. It is also a well-recognized rule that equity will not relieve one party against another when they are in pari delicto. Baird v Howison, 154 Ala. 359, 45 So. 668; Brantley v. West, 27 Ala. 542. As to this last-mentioned rule, however, there are modifications and exceptions, and the courts may interfere from motives of public policy. 2 Pomeroy's (3d Ed.) § 941. Again, this eminent author observes in section 942, as follows:

"Lastly, when the contract is illegal, so that both parties are to some extent involved in the illegality,--in some degree affected with the unlawful taint,--but are not in pari delicto,--that is, both have not, with the same knowledge, willingness, and wrongful intent, engaged in the transaction, or the undertakings of each are not equally blameworthy,--a court of equity may, in furtherance of justice and of a sound public policy, aid the one who is comparatively the more innocent, and may grant him full affirmative relief, by canceling an executory contract, by setting aside an executed contract, conveyance, or transfer, by recovering back money paid or property delivered, as the circumstances of the case shall require, and sometimes even by sustaining a suit brought to enforce the contract itself, or if this be impossible, by permitting him to recover the amount justly due, by means of an appropriate action not directly based upon the contract. Such an inequality of condition exists so that relief may be given to the more innocent party, in two distinct classes of cases: "1. It exists where the contract is intrinsically illegal, and is of such a nature that the undertakings or stipulations of each, if considered by themselves alone, would show the parties equally in fault, but there are collateral and incidental circumstances attending the transaction, and affecting the relations of the two parties, which render one of them comparatively free from fault. Such circumstances are imposition, oppression, duress, threats, undue influence, taking advantage of necessities or of weakness, and the like, as a means of inducing the party to enter into the agreement, or of procuring him to execute and perform it after it had been voluntarily entered into.

"2. The condition also exists where, in the absence of any incidental and collateral circumstances, the contract is illegal,

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