Tucker v. Smith

• Decision Date: 01 April 1827
• Citation: 4 Me. 415
• Parties: TUCKER v. SMITH
• Court: Maine Supreme Court

4 Me. 415

TUCKER v. SMITH

Supreme Judicial Court of Maine, York

April, 1827

[Syllabus Material]

This was assumpsit, on a promissory note, dated April 20, 1817 made by William Smith the defendant, to his son George Smith payable on demand, and by him indorsed to the plaintiff.

At the trial, before Preble J. the defendant proved that the note was in the possession of the payee till the summer of 1823 that it was in fact made in March or April 1818; and that although at the time it was made, it was pretended to be given for a debt due by the maker to his son, for services rendered since the latter came of age; yet in truth it was given without consideration, and with the fraudulent intent, on the part of the defendant, by giving this and other notes, so to reduce his property, as to qualify him to be placed on the pension roll of the United States, he having served as a soldier in the war of the revolution. He also proved that George Smith, before he indorsed the note to the plaintiff, said that it was given without consideration; that the business about which it was given had been adjusted; and that he intended to give up the note to his father.

Upon this evidence, the counsel for the plaintiff contended that the defendant ought not to be admitted to allege his own turpitude by way of defence, notwithstanding the note was over due when it was indorsed. But the judge instructed the jury that the action was to be tried upon the same principles as if it were between the original parties to the note; that the payee, knowing the intent with which it was given, was a party to the fraud; and that therefore the law would not lend its aid, either to him or to the plaintiff who stood in his place, to enforce the payment. And he directed them, if they were satisfied of the fraudulent intent, to find for the defendant; which they did. And being interrogated by the judge as to the grounds of the verdict, the foreman stated that they found that the note was given to enable the defendant to obtain a pension; and that the payee had declared it was settled and paid.

The plaintiff excepted to these instructions, and moved for a new trial, for the misdirection of the jury by the judge.

Judgment on the verdict.

J. Holmes, argued for the plaintiff, that he was an innocent indorsee, not conusant of any fraud; and therefore stood precisely on the ground of an innocent purchaser of land from a fraudulent grantee; whose title, it is well settled, would be good. The case is the same with the innocent purchaser of any other property, where the title of the vendor is voidable only, and not ipso facto void. Beals v. Guernsey 8 Johns. 446. Fletcher v. Peck 6 Cranch. 87.

Though the note was over due, and so far dishonored when it was indorsed, yet this does not authorize the defendant to set up his own fraud by way of defence. Nullus commodum percipere potest, de injuria sua propria. The practice of admitting the maker to any original matter of defence against the indorsee, was first adopted in 1739; and was placed by Buller J. on the ground of fraud in the indorser, in selling a note which had been paid. And the rule has never gone farther than to admit the maker to any equitable defence against the note; never so far as to allow him to set up his own fraud. Nemo, allegans turpitudinem suam, est audiendus. The caution of the courts in this respect, is apparent from Brown v. Davis 3 D. & E. 80. See also O'Callaghan v. Sawyer 5 Johns. 118. 2 Caines 369. Henrick v. Judah 1 Johns. 319. He is heard, at law, against the note, no farther than he would be heard in the courts of equity; in which he would be estopped, by his own fraud, in whatever stage of the proceedings it appeared. It is only by shewing that the indorsee was himself a participator in the fraud, that the defendant can avail himself indirectly of his own wrong, under the rule that in pari delicto, melior est conditio defendentis.

But the jury do not appear to have found that the payee of the note was conusant of any fraudulent intent in the maker. It is true that a part of the ground of the verdict was that the note had been paid. But this fact cannot sustain the verdict. If the legal ground of the verdict was even much the strongest, and most weighty in the scale, yet if any weight was given to illegal considerations, a new trial ought to be granted. From the answer of the foreman, it is apparent that some of the jury decided on the ground that the note was paid; and others because it was given to enable the maker to obtain a pension. But if the latter consideration had any weight, the verdict was wrong.

J. and E. Shepley, for the defendant. The record shews that the consideration of the note was not real, but pretended; and that it was created with the intent to lay a foundation for perjury, and to violate a law of the United States. And this was known to the payee. The note therefore was void. Thurston v. McKown 6 Mass. 428. Ayer v. Hutchins 4 Mass. 370. Hemmenway v. Stone 7 Mass. 58. Loomis v. Pulver 9 Johns. 244. Coolidge v. Blake 15 Mass. 409. Russel v. De Grand ib 35. Wheeler v. Russell 17 Mass. 258. 1 Bos. & Pul. 551. 1 Maule & Selw. 596.

It is also found by the jury that the note was paid, before it was negotiated to the plaintiff. It had therefore lost its negotiable quality, and the plaintiff acquired nothing by the indorsement. Baker v. Wheaton 5 Mass. 509. Webster v. Lee ib. 335. He only stood in the place of the indorser; having received the note six years after it became due; and therefore against him the maker is entitled to any defence, which was open to him before it was negotiated. The decided cases recognize no distinction founded on the nature of the defence; they only regard the character of the holder. If he receives the note fairly before it is dishonored, he acquires rights peculiar to himself. If not, he merely represents the original payee. Boylston v. Greene 8 Mass. 465. Blake v Sewall 3...