Andrews v. Marshall , 48 Me. 26 ( 1860 )

The opinion of the Court was drawn up by

Tenney, C. J.

This case has previously been before the law Court, on exceptions taken to the instructions, given to the jury, under evidence substantially the same, as that which was presented at the last trial, Andrews v. Marshall, 43 Maine, 272. At the former hearing, the presiding Judge instructed the jury, that although the officer might by his irregularities in the sale have become a trespasser- ab initio, as regards Chase, yet the plaintiff in this action, can derive no advantage from such irregularities. If they found that the mortgage was made to defraud or delay creditors, the defendant may justify under his attachment, and contest the validity, as to Chase’s creditors, of the mortgage to the plaintiff, in the same manner as if the proceedings had been regular and legal. That if the mortgage was fraudulent, the defendant would be answerable to Chase, and not to the plaintiff, for any such irregularities.

These views the whole Court regarded as erroneous in law, and the exceptions were sustained, on the authority of the statute of the 13th of Elizabeth, touching conveyances made to hinder, delay and defraud creditors, and constructions given to that statute in England and in this country. The Court held the true rule, as decided from the Act of 13 Elizabeth, and the authorities applicable thereto, to be, “ The fraudulent vendor or grantor parts with his interest in the property conveyed to his vendee or grantee; the law affords him no aid, and equity no relief in reclaiming it.”

At the second trial, instructions were given to the jury, in conformity with the decision of the whole Court, upon the same point, which was raised in the previous trial; and exceptions were taken, not because the instructions were erroneous, under the settled construction of the statute of the 13th of Elizabeth, but that the statute was effectually repealed by the statute of this State, in the revision of 1841, c. 161, § 2, which makes it criminal, in both parties, to a transfer of property made with “ intent to defraud prior or subsequent purchasers, or to hinder, delay or defraud creditors or other persons,” &c. It doés not appear from the report of this case, in the 43d Maine, 272, that this point was taken in argument.

It is, undoubtedly, well settled, as a general principle, that an action will not lie upon a contract made in violation of a statute, or of a principle of the common law. The authorities were cited, and examined upon this point in Wheeler v. Russell, 17 Mass., 258, and the doctrine fully recognized.

But it is also well settled, that where a contract made in violation of law has been executed, Courts will not lend their aid to compel one party to restore the other to the condition which he held before the contract, unless the statute has made some provision for such a purpose.

The principal question argued in this case is not new in this State. The statute now relied upon was invoked in the case of Ellis v. Higgins, 32 Maine, 34, which was a real action, to recover possession of a parcel of land conveyed by the tenant to the demandant, the former continuing in the occupation thereof. ' The tenant proposed to prove his own fraud, for the purpose of defeating his own deed. Shepley, C. J., in delivering the opinion of the Court, says “ The counsel does not notice the distinction between executed and executory contracts.” — “Between the parties to the fraud, the law renders no aid to either. The title, though by a fraudulent deed, passed from the tenant to the demandant. The statute does not declare it to be void. If it had been a contract to convey, it could not have been enforced. It was an actual conveyance. It passed the title without any aid from the Courts.”

On examination of the statute, it will be found, that crime consists, not in the intention and an abortive effort to transfer the property, but in the conveyance or assignment of any estate or interest in lands, goods, &c., with intent to defraud; thereby treating the transaction as effectual between the parties, when the contract has been carried into full effect.

It is insisted that, the goods being in the possession of Chase, they cannot lawfully be taken from him by the plaintiff.

The case finds, that the goods were conveyed to the plaintiff in mortgage. It is not necessary to cite authorities to show that this constituted a full transfer of the property, subject only to the right of redemption, by a fulfilment of the condition on the part of the mortgager. It is not pretended that the latter obtained possession after the transfer, against the consent of the former. The possession was probably by some agreement between the parties, to the mortgage, not inconsistent with its legal effect, and was in submission to the plaintiff’s title to the goods. The recording of the mortgage was tantamount to a delivery of the property; and the statute itself, providing for the recording of the mortgage of personal property, has made the record equivalent to the delivery of possession of personal property mortgaged to the mortgagee, and the retention by him afterwards.

In the case of Ellis v. Higgins, before cited, the possession of the grantor, even if the deed was fraudulent, was not regarded as an obstacle to the demandant’s recovery. And, in the ease at bar, the title to the goods had passed by a contract which was complete, and was in the plaintiff, as has been already decided in this case.

Exceptions overruled: — Judgment on the verdict.

Rice, Appleton, and Kent, JJ., concurred. GtOODEnow, and Davis, JJ., non-concurred.