Harbaugh v. Butner

Opinion by

Mr. Chief Justice Paxson,

The judgment in this case was opened, by the agreement of the parties, without terms. Upon the trial below, the plaintiff offered in evidence the judgment note, and rested. The defendant then offered to prove that the judgment note in question was given in pursuance of an arrangement between the plaintiff and the defendant to cheat and defraud the creditors of the former. See first, second and third specifications of error. The rejection of this evidence presents the only question in the case.

It was contended on the part of the defendant that the judgment having been opened without terms, it was the duty of the plaintiff to make out his case just as though no judgment had been entered, and Ham v. Smith, 87 Pa. 63, was cited in support of this proposition. We are of opinion that that case does not sustain the defendant's contention to the extent claimed for it. It is true it was said by Mr. Justice Gordon: “But it is said the contract has been executed, and, therefore, the courts will not interfere. The law is undoubtedly well stated if the facts were so. But the contract has not been executed, and the law is now required to lend its aid for the purpose of its execution.” In that case a judgment note was given to a candidate for election, in consideration that he should withdraw in favor of another candidate, and it was held that such a contract is prohibited by the act of April 18, 1874, and cannot be enforced. It was further held that the contract was not executed by tlxe judgment upon the note, and that judicial inquiry into the consideration thereof was not precluded.

In the case in hand the burden of proof was upon the plaintiff. This bux'den he met and discharged when he produced and offered in evidence a single bill made and executed by the defendant, bearing date the 15th day of September, 1887, in and by which the defendant acknowledged her indebtedness to the plaintiff’s intestate iix the sum of 11,000. The judgment, having been opened, amounted to nothing except for the purposes of lien. But the note remained, and stands under the pleadings as the plaintiff’s cause of action. Its execution and delivery were not denied, and having been admitted in evidence, it established a prima facie case for the plaintiff, axxd entitled him to recover, unless the defendant has shown some sufficient ground of defence thereto.

The evidence rejected would not have established such defence had it been admitted. While the transaction was a fraud upon the creditors of Charles Lightner, and void as to them, it was nevertheless good between the parties. In Winton v. Freeman, 102 Pa. 366, it was said by this court: “It is settled by numerous decisions that there is no more binding consideration known to the law than the mutual fraud of the parties. The books are full of cases where a party to the fraud has sought relief, in the courts, from the consequences of his unlawful act, but the decisions have been uniformly adverse to such applications. It is not the province of the law to help a rogue out of his toils.”

When the defendant’s note was offered in evidence, it presented a olean case. It disclosed no fraud. Were it otherwise, had the fraud appeared upon the face of the papers, the plaintiff could not have recovered for the reason that the law would not aid him in the perpetration of a fraud. But it is the defendant who sets up her own fraud as a defence to the note. Under all the authorities this cannot be done. The distinction between the case in hand and Ham v. Smith, supra, and that line of cases, is clear and distinct. In all of them the consideration was illegal between the parties. It follows logically that this want of consideration could be set up in an action between them. In the case in hand, while the note was a fraud upon creditors, and void as to them, it is nevertheless good as between the parties. The law holds them, to the consequences of their fraud, and will not lend its aid to either party to avoid them. It follows that it is entirely immaterial whether the contract is executed or merely executory. If it is executed, that is the end of it. If it is executory, and the fraud does not appear upon the face of the plaintiff’s claim, the defendant cannot set it up as a defence. As she has made her bed so must she lie.

Judgment affirmed.