White v. Crew , 16 Ga. 416 ( 1854 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] In the judgment of this Court, the defendant, White, has totally misapprehended the nature of the agreement entered into between the complainant and himself. We recognize the general rule, that where an illegal or fraudulent contract has been made, neither Courts of Law nor Equity "will interpose to grant any relief to the parties, but will leave them where it finds them, if they were equally cognizant of the illegality or participated in the fraud, unless in cases where the public policy would be promoted.

[2.] But such is not the character of the contract charged in this bill. English vs. Tomlinson et al. (8 Humphrey’s R. 378.) For aught that appears to the contrary, it was entered into for the very' laudable purpose of enabling White and the other indorsers of Crew on the Neal debt, to indemnify themselves against loss on account of their liability on that debt. And in this sense alone, and in no other, can it be said to have been made for the benefit of the complainant.

[3.] In opposition to the specific performance prayed for by this bill, the Statute of Frauds is insisted on.

That sales by auction are within the Statute, is not now an ■open question. Blagden vs. Braglear (12 Ves. 466.) Kennorthy vs. Schofield (2 Barn. & Cress. 947.) Walker vs. Constable (1 Bos. & Pul. 306.) Emmerson vs. Heelis (2 Taunt. 38.) White vs. Proctor (4 Taunt. 209.) Hinde vs. Whitehouse (7 East. 558.) But in the case of the Attorney General vs. Day (1 Ves. 218), while Lord Bardwiche admitted that sales by auction were not excepted, he distinguished judicial sales from other sales by auction, holding that the former were necessarily exempted from the operation of the Statute. Without extending the inquiry further, as to whether or not the policy of the Statute applies to all public as well as'private sales, we hold, that under the facts of this case, it would be a gross fraud not to compel the defendant to execute his part of the agreement. To save 'him harmless, such proclamations were made on the day of sale as greatly to depress the market price of the property, by keeping off bidders. The land was cried off and turned over to him. He took the Sheriff’s deed — has re-sold it, according to the understanding between complainant-and himself, at a large profit, and now refuses to execute his part of the agreement, to apply the proceeds to the extinguishment of the Neal debt. We repeat; it would be a fraud upon Crew, and flagrantly inequitable to suffer his refusal to work such a prejudice. See Dart’s Vendors and Purchasers of Real Estate, note 1, p. 477.

And the Court was right in not allowing the affidavit of illegality, interposed by Crew against the Neal fi. fa. before this bill was filed, to be read in evidence. The object of this testimony was to show that the question made by the bill was res adjudicata.

[4.] It is not necessary to question the doctrine that a Cou^t of Equity will not relieve against a mistake in pleading, or in the conduct of a cause at Lazo. There is, however, respectable authority to be found, in support.of the affirmative of this proposition. (Anonymous, 1 Vernon, 119, and cases cited in the note, 1st American Edition. Wesley vs. Thomas, 6 Harr. & Johns. 24. Lanmat vs. Bowley, Id. 500. Price vs. Fuqua, 4 Munt. 68. See Waterman's Eden on Injunctions, 3d Edition, p. 21, note.)

[5.] The matter on which the intervention of Equity is here asked, could not have been determined'at Law; and‘consequently, it cannot be within.the estoppel of the legal decision. Perhaps it- was for this very, reason, that the affidavit of illegality was abandoned by the defendant, Crew, Or was dismissed by the Court. ’ There was, in--fact; no judgment at Law, as to the grounds for relief prayed for in this bill. '■ ‘

[6.] We confess that we are ■ unable * to comprehend, very clearly, the object in offering in evidence the certificate'in bankruptcy,* which was obtained by Crew the 12th of January.,-1843. , The bill-of exceptions states that it was' to' show that Crew could not recover, against 'White, a demand which Vested in the assignee in bankruptcy. Butdt- does' not- appear that-the claim was upon.the debtor’s schedule. \ But'-whether it-was - or was not, he does not seek to enforce a moneyéd demand against White; but the performance of-a duty- of' obligation, namely: to compel .him, in pursuance of -his undertaking, to ' apply the fund ¡arising from the re-sale-of - the'land, - which he bought and held on trust, for the-benefit‘of .Crew, to the' ex-tinguishment of the Neal judgment.

[7.] The charge of the Court- is excepted to.. The only thing in it, not already noticed, is the concluding' clause Cthatthe complainant was bound to overcome the answer, by the evidence of one witness and corroborating circumstances.

. The error assigned here is, that the Court Should have instructed the Jury,- that to overcome the 'answer of the defendant, which is responsive to the bill, that in addition to- the testimony of one witness, the circumstances should equal, in strength, the proof of another witness. But such is not our understanding of the rule. True, from the manner 'in which it is usually stated in works on Equity Practice, this inference might.seem to be warranted: that where a replication is put in,a,ndthe parties pr'oceed to-a hearing, "all the allegations"'of the answer which are responsive to the bill, 'shall be taken as true) unless they are disproved by two'witnesses, or by one'wit-’ ness, with corroborating circumstances; that is, with circumstances; which would equal the evidence' of another witness. Rut Mr. Daniel lays down-the rule more guardedly. He says, that where the answer, in express terms, negatives the allegations in the bill, and the' evidence of one person, only, affirms what has been so negatived, then the Court will neither make a decree nor send it to a trial at Lawr; or, as he otherwise expresses it, unless 'the denial, by the answer, is contradicted by the evidence of more'than one witness. (1 Ch. Pl. & Pr. 983.) And by reference to the numerous American cases, cited in the note by Mr. Perlcins, the Editor, it will be found, that in many of them, very slight preponderating circumstances, in addition to the positive proof, were sufficient to turn the scale against the defendant.

[8.] Indeed, circumstances alone, independent of any direct proof, might often justify and require a decree against the answer. (Long vs. White, 5 J. J. Marshall, 228. Clark’s Ex’s. vs. Van Rien’s Dyk. 9 Cranch. 154.)

[9.] In Pember and his Wife vs. Mathers, decided in 1778, (1 Brown’s Ch. R. 52,) Lord Chancellor Tlmrlow, in commenting on this rule, says : “ It stands on great authorities— so does the manner of liquidating it. I do not see great reason in either. The rule is subject to this modification; that if there are-circumstances sufficient to turn the scale, it ought to-be turned. The oath of a by-stander, with circumstances corroborating it, is better than that of an interested person”. *

And in support of this qualification of the rule, see 1 Greenleaf’s Ev. pt. 2, ch. 14, §260; 1 Phil. Ev. Cowen & Hill's Edition, 154, 155, and the numerous cases' cited by Mr. Perlcins, in note a, to the case of Pember and Mathers.

The judgment below is affirmed.