Fisher v. Saylor

Mr. Justice Williams

delivered the opinion of the court, October 18th 1875. .

The defendant below purchased of the plaintiff an undivided interest in certain real estate in Schuylkill county, and conveyed to him a house and lot in the city of Philadelphia, in part payment of the consideration, and agreed that he would make good any loss the plaintiff might sustain in the sale thereof, if he came out whole in the sale of the land. The plaintiff sold the house and lot for about one-seventh of the price for which the property was conveyed to him, and brought this action to recover the difference. The defendant admitted that he had sold the land at a profit, but alleged that the plaintiff had fraudulently sold the house and lot at an undervalue, and for this reason, among others, was not entitled to maintain the action. It appeared from the plaintiff’s own testimony, that he sold the property to his brother at private sale, without advertising it, or giving the defendant notice of his intention to sell it; and it was shown by a number of witnesses, well acquainted with the property, that it was sold for a price greatly below its value, and for much less than it would have brought at public sale. The defendant contended that the circumstances under which the property was sold, as disclosed by the evidence, showed that the sale was collusive and fraudulent, and he requested the court to charge the jury that if there was any evidence of collusion' in the sale, from the plaintiff to his brother, there can be no recovery by the plaintiff. In answer thereto, the court said, that if there ivas any collusion between the plaintiff and his brother, in the sale of the property, then the plaintiff cannot recover more than the difference between a fair price for the house and the amount paid to the defendant. This instruction is assigned as error, and presents the only material question in the case. Was the plaintiff then entitled to recover the difference between what the property was fairly worth and the sum or price for which it was conveyed to him, if the sale was collusive ? Or was it such fraud as would disable him from maintaining the action ? It is strenuously insisted, on behalf of the plaintiff below (the defendant in error), that this instruction was correct, for the reason that the plaintiff’s right of action was founded on the contract, and if there was no fraud in the contract, it was valid and binding on the parties, and the plaintiff’s subsequent fraud in the sale of the property, could not have the effect of avoiding the contract, or of extinguishing his right of action thereon. Its only effect, as contended, would be to prevent the plaintiff from using the sale as evidence of the value of the property, or of the amount of the loss which he had sustained, but it would not prevent him from recovering the difference between the actual or market value of the property and the amount for which it was conveyed to him. It is true that the plaintiff's right of action is founded on the contract, and though it was honestly made, it does not follow that the plaintiff is entitled to maintain an action upon it, if the sale was collusive and fraudulent. By the very terms of the agreement, no liability could arise upon the contract, unless the plaintiff sold the property for less than the sum for which it was conveyed to him. A sale of the property was, therefore, a condition precedent to his right of action. But it was his duty to sell the property, in good faith, for the best price that could be obtained for it, and if he collusively sold it for less, the sale was a nullity, so far as respects the defendant; and if so, the plaintiff has no more right to maintain the action than he would if he had made no sale. If the sale was collusively made, for the purpose of defrauding the defendant, why should the plaintiff acquire any right of action against him thereby ?

If it had been honestly and fairly made, though for less than the actual or market value of the property, tbe plaintiff might be entitled, as'the court instructed the jury, to recover the difference between what the property was fairly worth and the price at which it was conveyed to him. But if it was collusive, and made with the intent of defrauding the defendant, the plaintiff, if entitled to maintain the action, can only maintain it through and by means of the fraudulent sale. But what difference does it make, so far as it respects the plaintiff’s right to maintain the action, whether the fraud through which he claims was in the making of the contract, or in making the sale ? If a right of action cannot arise out of a fraudulent contract, why should it arise out of the fraudulent performance of a condition of the contract upon which the right of action depends? To hold that it might, would be a palpable disregard of the maxim that no man shall take advantage of his own wrong, nor be allowed to found any claim upon his own iniquity: Nemo ex proprio dolo consequitur actionem. The court, therefore, erred in instructing the jury in effect, that if there was collusion between the plaintiff and his brother in the sale of the property, the plaintiff might recover the difference between a fair price for the house and the amount paid to the defendant. But there 'was no error in not affirming the point in answer to which the instruction was given. In asking the court to charge the jury that there could be no recovery by the plaintiff if there was any evidence of collusion in making the sale, the defendant asked too much. He was not entitled to the instruction prayed for, unless the jury were satisfied from the evidence that the sale to his brother was collusive, and the point should have been so framed. There is nothing of substance in the other assignments, and it would be a profitless task to discuss them.

Judgment reversed and a venire facias de novo awarded.