Pierce v. Cobb

• Decision Date: 05 March 1913
• Citation: 77 S.E. 350,161 N.C. 300
• Parties: PIERCE et al. v. COBB et al.
• Court: North Carolina Supreme Court

77 S.E. 350

161 N.C. 300

PIERCE et al. v. COBB et al.

Supreme Court of North Carolina

March 5, 1913

Appeal from Superior Court, Pitt County; Bragaw, Judge.

Action by C. C. Pierce and others against B. F. Cobb and another. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

Parol evidence to contradict a stipulation on the back of a note sued on, which stipulation disclosed an invalid consideration, and to show a different and lawful consideration, held properly excluded.

Ward & Grimes, of Washington, N. C., for appellants.

Albion Dunn, of Greenville, for appellees.

WALKER J.

This action was brought to recover the amount of two notes under seal, dated April 1, 1911, one for the sum of $500, due June 10, 1911, and the other for $1,000, due October 15, 1911 with interest after maturity. The notes were payable to C. C Pierce and F. C. Harding, attorneys of Mrs. Ruth Cobb plaintiffs, and were signed by B. F. and J. H. Cobb defendants. On the back of the notes, at the time they were executed, was the following: "It is fully understood and agreed that this note shall not become due nor collectible in any event until Mrs. Ruth Cobb shall have obtained from her husband, the said B. F. Cobb, in a court of competent jurisdiction, a complete and absolute divorce from the bonds of matrimony, and shall present the said B. F. Cobb a duly certified copy of the decree granting same. This being the consideration for which this note is given. If the said Ruth Cobb shall fail to secure said divorce within at least six months from the 10th day of June, 1911, then this note shall be null and void. And the payees herein, in accepting this note, agree to the conditions above set out." Plaintiffs offered to show by the testimony of C. C. Pierce, one of the plaintiffs, that the writing on the back of the notes did not truly express the agreement, and that the real agreement was really one to pay alimony; he admitted, though, that he knew of the indorsement when he received the notes for Mrs. Ruth Cobb, and that it provided that the consideration of the notes was the divorce of the defendant B. F. Cobb from the bonds of matrimony, and, while he protested against the insertion of the clause, he did not require that it should be stricken out, but received the notes, and has brought this action upon them with the indorsement still there, and also that the understanding was that the notes should not be paid until the divorce was granted. The testimony of C. C. Pierce was tendered in these words: "Plaintiffs offer to prove a contradiction of the stipulation on the back of the notes and that such proof will show a lawful consideration for the payment of support and alimony." At the close of the plaintiff's evidence, the court ordered a nonsuit, and plaintiffs appealed.

The objection was made that plaintiffs cannot maintain this action because they are not the real parties in interest (Revisal, § 400), nor are they, within the meaning of Revisal, § 404, "trustees of an express trust," and Martin v. Mask, 158 N.C. 436, 74 S.E. 343, was cited in support of the contention; but we need not decide that question, as we are satisfied that upon another ground the notes are void, and the nonsuit was properly entered.

No contract which is against good morals or the public policy of the state will be enforced by its courts. If the consideration upon which it is based is illegal, the courts will leave the parties where it found them, and will lend their aid to neither of the parties. The law will give no sanction to a transaction which involves the violation of its principles, nor will it afford a remedy to compel either of the parties to perform its obligation. It was said in Edwards v. Goldsboro, 141 N.C. at page 72, 53 S.E. 652, at page 656 (4 L. R. A. [N. S.] 589, 8 Ann. Cas. 479): "The law gives no action to a party upon an illegal contract, either to enforce it directly or to recover back money paid on it after it has been executed. Webb v. Fulchire, 25 N.C. 485 ; Warden v. Plummer, 49 N.C. 524; 15 Am. & Eng. Enc. (2d Ed.) 997. The rule rests upon the broad ground that no court will allow itself to be used when its judgment will consummate an act forbidden by law. The maxim is, 'Ex dolo malo (or ex turpi causa) non oritur actio,' and the kindred one is, 'In pari delicto potior est conditio defendentis.' In such cases the law leaves the parties where it finds them. When parties are in pari delicto in respect to an illegal contract, and one obtains advantage over the other, a court will not grant relief (Wright v. Cain, 93 N.C. 296), and when they have united in an unlawful transaction to injure another or others or the public, or to defeat the due administration of the law, or when the contract is against public policy, or contra bonos mores, the courts will not enforce it in favor of either party. York v. Merritt, 77 N.C. 213; Id., 80 N.C. 285; King v. Winants, 71 N.C. 469 ; Pinckston v. Brown, 56 N.C. 494; Sparks v. Sparks, 94 N.C. 532." If the object of a contract is to divorce man and wife, the agreement is against public policy and void. The reason of this rule is that the law views with repugnance all contracts, the purpose or direct tendency of which, as gathered from its terms, is to dissolve the marriage tie, because of its regard for virtue, the good order of society, the welfare of the children as the fruit of the union, and the peculiar sanctity of the marital relation. The husband and wife cannot do by their consent what the law forbids to be done except by the legislative will, and then only in the way and by the method authorized. "The inducement of a wife to sue for a divorce by a promise on the part of the husband to renumerate her for it, or for a husband and wife to agree that one of them shall bring a suit for a divorce and the other shall not defend, is against the law which recognizes and upholds the sanctity of marriage and is void. The same is true of an agreement after a divorce has been granted that the husband will pay the wife money if she will not move for a new trial, or, where the divorce has been wrongfully granted, that the parties will not disturb it. And an agreement not to sue or make claim for alimony has been held void. A promise to marry made by a man already married, to take effect when he has obtained a divorce from his present wife, is illegal and void." 9 Cyc. 519, 520. All this will be found fully discussed in the books, and especially in the one just cited. It is such familiar learning that we need not make further comment upon it. Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327.

The remaining question is whether this contract is within the principle and the denunciation of the law. We think it will so appear by an examination of the indorsement on the notes. It stipulates that Mrs. Ruth Cobb shall obtain a divorce in the courts, and that the notes are not to be payable until she has done so, and she is allowed only six months within which to secure the divorce. In other words, she must obtain a divorce as a condition of her right to have the money upon the notes, and she must do it quickly, or at least without any delay, the penalty of which is the forfeiture of the money. She could not, under our procedure, obtain the divorce in shorter time than that fixed by the instrument. There is a clear and irresistible implication to be drawn from the terms of the written condition that B. F. Cobb, the husband, will not resist or retard her recovery, but she was to have her own way. If we could consider the testimony of Mr. Pierce, it would appear that the object of this transaction, as we have stated it, was well understood by the parties, and so well was its legal effect appreciated that he protested against it, but did not have the illegal stipulation eliminated. It would also appear that the husband was engaged in assisting his wife to procure evidence, the...