Smith v. Johnson , 37 Ala. 633 ( 1861 )

A. J. WALKER, C. J.

ATI the objections made to the

appellant’s petition, rest, as their basis, upon the ground that the appellee was a purchaser from the appellant’s former husband, of a moiety of the land in which- dower is claimed. The purchase is claimed to have resulted from a contract made between the appellant’s deceased husband and the appellee, that the former should enter 1 lie laud#, under the act of congress entitled, “ an act to graduate and reduce the price of'the public lands to actual settlers and cultivators,” and that -the appellee should furuir.li the entrance-money; which-contract was followed by an entry c# the land, in pursuance of it, with money supplied by the appellee, aud the subsequent joint occupation and improvement by the deceased and the appellee. This contract, being parol, was within the statute of frauds. — Henly v. Brown, 1 St. 144 ; Kizer v. Lock, 9 Ala. 269. From this it results, that the appellee could have acquired by the agreement, the payment of money according to its terms, and the subsequent improvement, a right-to go into equity-for the specific performance of the parol contract; which right might be denominated an- equitable title to the land, if, under the facts, a court of'-equity would have granted the specific performance. It follows, that the entire question, whether any. right to the land, ever vested in the any pellee, depends upon the sufficiency of bis claim to specific perfo-mance in a court of equity.

[].] The third section of the graduation act of congress, above referred to, requires, as a preliminary to the entry 6f land under it, an affidavit of the applicant, that he enters the i-ume for his own use,, and for the purpose of actual settlement and cultivation,'or fertile use of an adjoining farm or plantation owned or occupied by him ; and that, together with the entry, he has n<Jt acquired, from the .United States, under the provisions of-the act, more than three hundred and twenty acres, according to the established surveys. — 10 U. S. Statutes at Large, 574. The .agreement above set forth comes directly within the inhibition contained in the affidavit -required, and would be illegal and void, upon the principles settled in Tennison v. Martin, (13 Ala. 21,) Hudson v. Milner, (12 ib. 667,) and Dial v. Hair, (18 Ala. 798.)

[2.] Because the contract is illegal and void, a court of equity would not compel a specific performance of it, notwithstanding the party seeking the specific performance might be in possession. — Dial v. Hair, supra. It is a maxim, that in pari delicto potior est conditio possidentis. But this maxim was never designed to infringe the principle, that the courts will not aid in -the enforcement of a contract violative of the law. In 'this case, the appellee seeks to set up an illegal contract, for the purpose of showing an equality of fault in the making of such contract, in order that he may obtain tlie benefit of it.

[3.] As there was no contract by which, either in equity or at law, any right vested in the appellee, it-cannot be said that there was any alienation by . the deceased, or that the appellee was an alienee.

The entire defense, upon which the'appellant’s petition was resisted, is untenable; and therefore the' decree of the court below.is reversed, and tha-causo-remanded.