Marks v. Hapgood , 24 Me. 407 ( 1844 )

The opinion of the Court was by

Sherley J.

This is an action of replevin brought by the plaintiff, a citizen of the Province of New Brunswick, against the defendant, a deputy sheriff, who had attached the logs replevied as the property of George C. Greenlaw. Most of these logs appear to have been cut by Greenlaw, upon the township of land reserved for the Passamaquoddy Indians, by virtue of a license granted by the Indian agent to Amos K. Cross, and assigned to Greenlaw, who entered into a written contract with the plaintiff to cut, haul and float the logs for him upon certain terms therein stated. To prove, that he owned the logs, the plaintiff introduced testimony tending to show, that he had purchased them of Greenlaw, and that they had been paid for and delivered, before they were attached by the defendant. And he obtained a verdict in Ms favor. The defendant now moves to set it aside upon testimony introduced by himself, that the plaintiff obtained his title by a violation of the provisions of the act of February 23, 1824, c. 271. If the contract made on November 30, 1840, between the plaintiff and Greenlaw be regarded as illegal, when considered in connexion with the other testimony, the question arises, whether the defendant can impeach the title of the plaintiff by proving, that he acquired it by a violation of the provisions of the statute. Is the maxim ex dolo malo non oritur actio, applicable to this case ? The action is not founded upon any illegal contract, or act of the plaintiff. Nor does he insist upon the execution of any such contract. That contract had been already executed. The Court is not called upon to carry it into effect, or to consider, that it ever was a subsisting and binding contract for the purpose of sustaining this action. If Greenlaw had sought to have the logs restored to him, because the plaintiff obtained them by a violation of the statute; he would have been met by the maxim potior est conditio defendentis, and must have failed. After he had received a valuable consideration for them, without any intention to defraud his creditors, it would seem, that they could not have any superior rights; and that they could not effect that through the intervention of an officer, which he could not himself accomplish. If the plaintiff had sold the logs to the defendant, he could not have avoided payment by showing, that the plaintiff had obtained them by a violation of law, unless his own title had been thereby impaired, or destroyed. The consideration of such a contract would not be illegal, nor would it be designed to accomplish an illegal purpose. It would be a new contract, not arising out of or connected with the original unlawful transaction. If a mere wrongdoer, who had taken the logs from the possession of the plaintiff, could successfully defend an action of replevin by showing, that the plaintiff had violated the provisions of a statute in obtaining them, any person, who could without violence, obtain possession of the goods of a merchant, might successfully resist his title to them by the like proof. If the plaintiff has been guilty of a violation of the provisions of that act in obtaining the logs, this action is not founded upon any such illegal act or contract, but simply upon his right of property and the wrongful act of the defendant. It may be true, that an illegal act had before been connected with these logs, but they were not thereby so infected, that they could no longer be the subject of legal property. It would be subversive of the ordinary business of life to hold, that one could not maintain his title to property so situated.

In the case of Boies v. Blake, 13 Maine R. 381, the plaintiff had lawfully cut and stacked the hay under a license from the Indian agent. The defendant could claim title only by the same license, which declared him to be a trespasser. In this case the plaintiff was under no such necessity; and did not in fact rest his title upon the contract or license. They were introduced to defeat his title by the defendant, who had neither possession of the property, nor a right to take it, except as the property of Greenlaw, who had before parted with all his rights.

Judgment on the verdict.