Marshall v. Dicks

• Decision Date: 12 December 1917
• Docket Number: (No. 483.)
• Citation: 94 S.E. 514,175 N.C. 38
• Court: North Carolina Supreme Court
• Parties: MARSHALL et al. v. DICKS et al.

94 S.E. 514

(175 N.C. 38)

MARSHALL et al.

v.DICKS et al.

(No. 483.)

Supreme Court of North Carolina.

Dec. 12, 1917.

Appeal from Superior Court, Randolph County; Cline, Judge.

Action by Mrs. Louise Dicks Marshall and Miss Lillian Dicks Bryant against R. P. Dicks and others. Prom a judgment of nonsuit, plaintiffs appeal. No error.

The action was instituted by plaintiffs, two of the children, heirs at law, and distributees of M. C. Dicks, deceased, to enforce the' payment of $5,000, being balance due on a note and mortgage executed by G. F. Hankins to Mrs. Al. C. Dicks, now deceased, and transferred, by written assignment absolute in terms, to defendant R. P. Dicks, a son of Mrs. Dicks, such transfer and assignment alleged by plaintiffs to have been in trust to collect the proceeds and pay to said M. C. Dicks, if living, and, if collected after her death, to pay same to her heirs at law, etc. H. M. Worth, administrator of M. C. Dicks, having failed to sue for or collect said amount, was made party defendant, the other defendant being the son, R. P. Dicks, and two daughters, also distributees and heirs at law of said M. C. Dicks. At lose of the plaintiffs testimony, on motion, there was judgment of nonsuit, and plaintiffs, having duly excepted, appealed.

Walser & Walser, of Lexington, and Brittain & Brittaini of Ashboro, for appellants.

W. C. Hammer, of Ashboro, and R. C. Kelly and King & Kimball, all of Greensboro, for appellees.

HOKE, J. The evidence on the part of plaintiff tended to show that during her lifetime Mrs. M. C. Dicks, now deceased, holding a note and mortgage on which there was a balance due of $5,600, transferred same by written assignment absolute in terms to her son, defendant R. P. Dicks, and at the time of the transfer there was an agreement by parol that the assignee should hold and collect the note in trust for his mother; that at such time the said M. C. 'Dicks was involved in debt, and the transfer was made by her with the intent and purpose to avoid payment of her debts. Said M. C. Dicks thereafter died, and the present action is instituted by plaintiffs, ¹ two of her children and heirs at law and distributees, against R. P. Dicks, to enforce an accounting of the proceeds alleged to have been collected and now held under and by virtue of said assignment; the other children of deceased being made parties defendant, and also the administrator of M. C. Dicks, he having declined to join in said litigation. Upon these facts we concur in the view* of his honor below that the plaintiff should be nonsuited.

It is the fixed principle with us, and, so far as we are aware, of all courts administering the same system of laws, that, when the parties are in pari delicto, they will not enforce the obligations of an executory contract which is illegal or contrary to public policy or against good morals. Nor will they lend their aid to the acquisition or enjoyment of rights or claims which grow out of, and are necessarily dependent upon, such a contract. Fashion Co. v. Grant, 165 N. C. 453, 81 S. E. 606; Pfeifer v. Israel, 161 N. C. 409, 77 S. E. 421; Lloyd v. Railroad, 151 N. C. 536, 66 S. E. 604, 45 L. R. A. (N. S.) 37S; Edwards v. Goldsboro, 141 N. C. 60, 53 S. E. 652, 4 L. R. A. (N. S.) 589, 8 Ann. Cas. 479; Culp v. Love, 127 N. C. 457, 371 S. E. 476; King v. Winants, 71 N. C. 469, 17 Am. Rep. 11; Blythe v. Lovinggood, 24 N. C. 20, 37 Am. Rep. 402; Sharp v. Farmer, 20 N. C. 255; McMullen v. Hoffman, 174 U. S. 639-654, 19 Sup. Ct. 839, 43 L. Ed. 1117; Bartle v. Nutt, 29 U. S. (4 Pet.) 184, 7 L. Ed. 825; Armstrong v. Toler, 24 U. S. (11 Wheat.) 258, 6 L. Ed. 468; 1 Waite's Act. & Def. p. 43.

In King's Case, supra, it is held as follows:

"The law prohibits everything which is contra bonos mores, and therefore no contract which originates in an act contrary to the true principles of morality can be made the subject of complaint in courts of justice."

In Blythe v. Lovinggood:

"An executory contract, the consideration of which is contra bonos mores, or against the public policy or the laws of the state, or in fraud of the state, or of any third person, cannot be enforced in a court of.justice."

And in Sharp v. Farmer:

"No action can be sustained in affirmance and enforcement of an executory contract to do an immoral act, or one against the policy of the law, the due course of justice, or the prohibition of a penal statute."

And in Bartle's Case, 4 Pet., supra: "The law leaves the parties to such a contract as it found them. If either has sustained a loss by the bad faith of a particeps criminis, it is but a just infliction for premeditated and deeply practiced fraud. * * * He must not expect that a judicial tribunal will degrade itself, by an exertion of its powers, by shifting the loss from one to the other; or to equalize the benefits or burthens which may have resulted from the violation of every principle of morals and of law."

And in Armstrong v. Toler, 11 Wheat., supra:

"Where a contract grows immediately out of, and is connected with, an illegal or [an] immoral act, a court of justice [the law] will not lend its aid to enforce it. So, if the contract be in part only connected with the illegal consideration, and growing immediately out of it, though it be, in fact, a new contract, it is equally tainted by it"

The cases in this jurisdiction hold...