ed in the illegal agreement? To this question, there can
be but one answer; it was. If it was illegally purchased,
must it not have been illegally sold? To my apprehen-
sion it would seem so. A system of operations was fixed
upon by this company, of acquisition and disposing of pro-
perty in the lump; the mode of acquisition is illegal, which
is apparent upon the face of their articles of association;
these same articles prescribe the terms on which the dispo-
sition is to be made; the disposition is to be made accord-
ing to those terms, and yet it is insisted this is a contract
totally independent of the first. To my mind this is
strange logic. It is said that it is perfectly lawful either
for a company or an individual to sell lands which they
own; so it is perfectly lawful for A to lend B money to
defend a lawsuit in the general, yet we have seen above
that there may be cases in which it is unlawful. But it is
urged, that notwithstanding the land was illegally acquir-
ed, still the holder may lawfully sell it, and the purchaser
will be bound to pay him the purchase money, unless the
original vendor sets up his title. I do not dispute this,
unless the mode of sale was stipulated in the illegal agree-
ment by which it was acquired. So where goods illegal-
ly imported are libelled, it is legal for a person who has
advanced money at the instance of the defendant, to de-
fend the suit, to sue him and recover the amount. But if
the person who makes the advance does it by virtue of an
agreement made with the importer concerning the un-
lawful importation, he cannot effect such recovery. Sup-
pose this had been an agreement, that a company, of which
the defendant was one, should acquire title to lands in a
manner prohibited by law, and that the company should
convey them to the defendant for a specified advance, and,
to make the case more applicable, I will suppose the lands
are not designated in the agreement, except that they are
to be of a particular value. Would not this agreement be
tainted throughout? and if such purchase by the company
and conveyance to the defendant were to take place, could
any recovery be had by the company on a bond given to
them as the consideration? Clearly not; but he would
hold the land against the company, discharged of such
bond. Can then the circumstance of a public sale being
stipulated, when one of the company purchases at that
sale, vary
the nature of that instrument so far as to render
it binding and obligatory? To me this seems impossible.
The sale by the company of the whole of this purchase at

JULY 1829.

V.

Caller.

one and the same time, is expressly provided for by the illegal agreement to purchase of the United States. The whole of that agreement, and every contract growing di- Carrington rectly out of it, is void, as well that part of it which prescribes the mode of sale of the lands to be purchased, as the rest. But the sale of the company, at which the defendant became a purchaser, and in cousideration of which purchase he executed the instrument sued on, was expressly provided for in the original unlawful agreement; therefore, the execution of the note of the defendant grew immediately out of the original agreement, and it is void; and this becomes the more clear, when it is remembered that the defendant himself was a member of the company, and a party to the whole transaction. In the language of the Court in the case of Armstrong v. Toler, "the contract is in part connected with the illegal transaction, and growing immediately out of it, though it be in fact a new contract." Indeed it can scarcely be termed a new contract, so intimately is it interwoven with the stipulations contained in the agreement entered into by the company for the purchase of the public lands. Had the purchases been effected, and no sales made, the agreement would not have been fulfilled; and as it was necessary for the company to sell before their agreement was executed, it was certainly as necessary for some persons to purchase; therefore the purchase by the defendant, and the execution of the instrument sued on, grew immediately out of the illegal agreement.

Chief Justice Marshall, in his very able opinion before refered to, cites several cases from English books, in all which the turning point was, "is the contract entirely a new one, distinct from, and unconnected with the illegal transaction, or had it any relation to it?"

2069.

If in the case of illegal contracts, money was advanced by one of the parties, even in an incidental way, for another, he could not sustain an action to recover it back. As in the leading case of Faikey v. Reynous; a the plaintiff a 4 Burrow and one Richardson were jointly concerned in certain contracts prohibited by law, on which a loss was sustained, the whole of which was paid by the plaintiffs; and a bond was given by Richardson to secure the repayment of his proportion of the loss. On this bond there was a recovery, Lord Mansfield presiding, on the general ground, that if one person apply to another to pay his debt, whether contracted on the score of usury or for any other pur

JULY 1829.

V.

Caller.

a Page 410.

pose, he is entitled to recover it back again. In 6 Term Reports a Ashurst, Justice, says: "The defendants are held Carrington liable because they have voluntarily given another security." But in the case of Faikey v. Raynous, the defendant would not have been liable had he not executed his bond voluntarily after the money was advanced. The payment of the money by the plaintiff would not have authorized the recovery, with the subsequent and independent obligation of the defendant; and if the original agreement had contemplated the payment of the money by the plaintiff, the bond subsequently executed, we are bound to believe from the report of that case, would not have validated the transaction.

418.

b

In the case of Petrie and another, Executors of Keeble b3 Term Rep. v. Hannay, this distinction between a voluntary payment, and one made on the request of the party, was taken; and it was expressly held that where money was paid by one person for another, on an illegal transaction, without an express assumpsit, no action could be maintained.

In none of the cases which I have cited, does it appear that the plaintiff's recovery was made to depend on his having to give evidence of the illegal consideration, or not, before he could lay a ground for a verdict. Indeed, although this rule is laid down in some cases in the books, it cannot be general in its application, as the mere introduction of a bond or promissory note would preclude all further inquiry, and render certain a recovery, no matter how nefarious the consideration. According to this rule, in the case put by the judge of the Circuit Court in Armstrong v. Toler, and which I have already considered at some length, if a verbal promise were made to repay the expenses of the suit which had been paid by the consignee, who had agreed when the goods were shipped to him, to make such payment if necessary, the plaintiff on the trial, would prove the suit, the payment of the expenses, and the promise, this would authorize a verdict in his favor; but the judge of the Circuit Court says, (and the Supreme Court sustains him,) the defendant might then prove the original illegal agreement, and that the promise and payment were made in conformity with a stipulation contained therein, and thereby exonerate himself from the demand. It is against every principle of law to determine that a plaintiff, by management, may, without the act of the defendant, place himself in a better situation, and the defendant in a worse, than they otherwise would be.

Certainly if a defendant would be authorized to introduce evidence to prove that a bond or promissory note had been given for an illegal consideration, he would be equally permitted to prove that although executed upon a new consideration, yet that it grew immediately out of an illegal one. It is urged, however, that to determine that the sale to the defendant is illegal and void, is tantamount to deciding that by the purchase, the title to the lands is so irrevocably fixed in the company that they can never sell them. In the present case there is no difficulty on this part of the subject. The company were competent to part from their title, and have done so; the ownership of the land was vested in the purchaser, and this agreement stands precisely as any other of the same kind, to all which the maxim applies, in pari delicto melior est conditio possidentis. It will be remembered that this agreement provided for the resale immediately at auction, of all the lands to be purchased; by this provision the two sales are so engrafted into each other, that it is impossible to separate them. If the sales had been made of different tracts of the land purchased by the company at different times, there would not have been so close a connexion between the transactions, and the impolicy might have been on the other side.

ever.

It has been contended for the plaintiffs that if the United States do not agitate this question, and sue for a rescission of the sale made to this company, no other person can move a step that way. It is certain that no party to this illegal agreement could successfully apply to the tribunals of the country, as plaintiff, to be relieved from the situation in which he has placed himself; but it is equally certain that any person sued on any part of it may plead its illegality in his defence against any other person whatAll the cases refered to are those in which similar defences have been urged, and the only inquiry has been, "was the plea sustained?" not, "was it legal to make it." Who is it that has uniformly sued on agreements to prevent competition at auction sales, in the cases in which those agreements have heen determined to be illegal? Not the owner of the goods sold, but a party to the agreement who conceived himself injured by not receiving from his fellow, his share of the profits made by the speculation. Such contracts are void as to all the parties concerned, and destroy every agreement which is affected by their polluting touch.

JULY 1829.

Carrington

V.

Caller.

JULY 1829.'

One ground occupied by the plaintiff remains to be examined; it is this, that unless the defendant places the plainCarrington tiff, (or the company from whom he purchased,) in as good a situation as he found him, judgment must be given for the plaintiff; and this it is said, he cannot do, because it is proved he has sold the land.

V.

Caller.

The maxim in pari delicto melior est conditio possidentis, might afford a sufficient answer to this objection; but waving this, it may be replied, that if this rule applies, it certainly relates to the time at which the whole transaction commenced. At that time what was the situation of the company? They were in the possession of the money placed in the hands of the committee, their agents, by the individuals who composed it, amounting to a thousand dollars each. When the land was purchased by them, they paid down one fourth of the purchase money, and received the registers certificates. When they sold to the defendant (at a greatly advanced price,) he paid them one fourth the amount or price for which he purchased of them, received a transfer of the register's certificate, and was alone responsible to the United States for the remainder due to them. The company then, collectively, and members individually, particularly those who bought no land at their sale, have profited greatly by their illegal association; and have received for the land purchased of them by the defendant, in part payment for which the instrument sued on, was given, much more than they have paid. As is shown by the testimony, they received in cash an advance of an hundred and twenty-five per cent. on their capital, with a return of the principal, within two or three days of the time of its investment. Surely then they cannot complain, nor this plaintiff, who was one of them, that the defendant does not place them in statu quo.

For these reasons, I am of opinion that the judgment should be affirmed; and of this opinion are a majority of the Court.

By JUDGE COLLIER. I have not enjoyed the instructive pleasure of hearing the arguments made in the cases at previous terms, and consequently, am denied the benefit of the lights they doubtless shed on the points of inquiry; I must therefore content myself with expressing an opinion, assisted by such aids as the arguments at the present term, and reflection upon them afford.