KIRKPATRICK v. Clark.

[132 ILLINOIS, 342.]

LEGAL TITLE TO LAND CANNOT BE PROVED BY PAROL EVIDENCE in an action of ejectment. EQUITABLE TITLE CANNOT BE SHOWN IN DEFENSE IN EJECTMENT. — Only legal titles can be investigated in an action of ejectment, and the equitable title of the defendant cannot be shown in defense.

TRUSTEE MAY RECOVER IN EJECTMENT LANDS AFFECTED BY THE TRUST, even as against the cestui que trust. HUSBAND NOT DEFRAUDED BY WIFE'S PURCHASING LAND So as to PREVENT HIS RIGHT OF DOWER FROM ATTACHING.—It is no fraud upon a husband for his wife, in purchasing lands with her own separate means, or with means derived from sources other than her husband, to have the title conveyed to a trustee for the express purpose of preventing his right of dower from attaching thereto. PARTIES IN PARI DELICTO LEFT WITHOUT REMEDY AGAINST EACH OTHER. — The law leaves without remedy against each other parties concerned in illegal agreements, provided they are in pari delicto. And this rule is applied to executed transactions as well as to those that are executory, and is enforced by courts of law as well as by courts of equity. Where, therefore, a fraudulent transaction has been consummated between the parties to an action of ejectment to the extent of vesting the title to the land in the plaintiff, and leaving the possession in the defendant, the law will leave them as they are, and will not permit the plaintiff to recover the possession.

EJECTMENT. The opinion states the case.

Morrison and Whitlock, for the appellant.

Edward L. McDonald, for the appellee.

BAILEY, J. This was an action of ejectment, brought by Frank H. Clark against Susie Kirkpatrick, to recover lot 27, in Tilton and Cassell's addition to Jacksonville. A trial was had on a plea of not guilty, resulting in a verdict and judgment in favor of the plaintiff, and the defendant now appeals to this court.

The plaintiff, at the trial, made proof, under the twenty-fifth section of the statute in relation to ejectment, that he claimed title through one Matthew Ashelby, a common source of title with the defendant, and then read in evidence a warranty deed from said Ashelby and wife, duly acknowledged and recorded, conveying said lot to him. The defendant's counsel then called the defendant as a witness in her own behalf, and after she had testified that she had been acquainted with the plaintiff for about eleven years, and that when she first became acquainted with the lot in question it was the property of Mr. Ashelby, she was asked the following questions: "State

whether or not, at the time this deed was made to Mr. Clark, you were in a controversy with your husband, and whether or not the deed was made to Mr. Clark by arrangement between you and Mr. Clark, so as to prevent any claim your husband might have on the property if the deed was in you. You may state whether or not Mr. Clark at any time in fact was the owner of and in possession of that property."

These questions, being both objected to by the plaintiff's counsel on the ground of incompetency and immateriality, were excluded, and thereupon the defendant's counsel made to the court the following statement and offer: "We expect and offer to prove by this witness and two other witnesses, Mr. and Mrs. Rogers, who have been sworn and are now in court, that they heard a conversation between Mr. Clark and Mrs. Kirkpatrick, in which it was stated that Mr. Clark had no interest in the property, and never had any; that the deed was made to him for the purpose of hindering and defrauding creditors and the husband of Mrs. Kirkpatrick, and that Mr. Clark then admitted that every cent that Mrs. Kirkpatrick ever owed him had been paid, and that he had no claim to the property, -no right to it, and that the property in controversy in this case was held by him only for the purpose of hindering and delaying creditors; that she asked him to give her a deed to the property, and he refused to do it, but admitted that he had no title to it, and that he only held it to cover it up so that the creditors could not get it, and also to prevent her husband from having any right to it."

The evidence thus offered, being objected to as incompetent, was excluded, and counsel then further offered to prove by Mrs. Kirkpatrick "that she went in company with Mr. Clark to Mr. Ashelby, and requested Mr. Ashelby to make the deed to Mr. Clark for the property, but did not tell Mr. Ashelby the reason for its being made to Mr. Clark; that Mrs. Kirkpatrick paid in full the consideration of said deed." This evidence also, being objected to for the same reason, was excluded. Exceptions were duly preserved by the defendant to the rulings of the court excluding said evidence, and said rulings are the only errors now assigned upon the record.

A considerable portion of the evidence offered was clearly incompetent or immaterial, or both. Thus the question put to the witness as to whether the plaintiff had ever been in fact the owner of the property in question, if understood as calling for the legal ownership of the lot, was incompetent, as the

legal title to lands cannot be proved in that mode. If understood as calling for the equitable title, it was immaterial, as in this form of action only legal titles can be investigated.

So of the question whether the deed was not made to the plaintiff by arrangement between him and the defendant, with a view to keeping said lot free from any claim the defendant's husband might have thereon in case the title was taken in her name. The evidence called for by that question would simply have tended to show that the plaintiff took and was holding the title to said lot as trustee for the defendant. Her equitable title thus attempted to be shown was quite immaterial, since it constituted no defense to the action. The rule is well set

tled that a trustee may recover in ejectment the lands affected by the trust, even as against the cestui que trust. In Reece v. Allen, 5 Gilm. 236, 48 Am. Dec. 336, this court said: "A court of law may indeed investigate some questions of fraud, and, when proved, treat a deed as a nullity, and conveying no title, as where a party was induced to execute a deed, supposing it was another paper, but in general it will not go behind the naked legal title, and inquire where the equities are. Even in case of a naked trustee, the law is so strenuous for the legal title that it enables the trustee to recover in ejectment against the cestui que trust." See also Kirkland v. Cox, 94 Ill. 400; Sedgwick and Wait on Trial of Title to Land, sec. 222, and cases cited in notes.

If it be said that the purpose of said question was to elicit evidence tending to show that said conveyance to the plaintiff was a fraud upon the rights of the defendant's husband, it may be answered that, even admitting that proof of such fraud would have been material, said evidence would have had no tendency to prove it. If the lot in question had been conveyed directly to the defendant, it would have vested in her husband no right or interest except an inchoate right of dower, and it was no fraud upon him if his wife, in purchasing the lot, had the title conveyed to a trustee for the express purpose of preventing such right from attaching. Even at common law, where the husband was entitled to the possession and enjoyment of his wife's lands during their joint lives, it was never supposed to be a fraud upon his rights for his wife to have lands purchased with her separate means, or derived from sources other than her husband, conveyed to a trustee, for the sole purpose of placing them beyond his control, and having them held for her separate use; and such trusts were habitu

ally resorted to for that purpose. But under our statute a married woman is entitled to the sole possession and enjoyment of her lands, free from the interference and control of her husband, the husband's right of dower, even after it has become vested, being imperfect and incapable of assertion or beneficial enjoyment until after her death. How, then, can he be said to have rights in lands which his wife does not yet own, but which she contemplates purchasing, which it would be a fraud upon him to deprive him of? Dower in lands which the wife does not yet own is an interest to which the husband has neither a legal, equitable, or moral right, and the wife is entirely at liberty to so manage her purchases made with her own means, if she can, as to prevent his acquiring such right.

A more difficult question is raised by that portion of the offer of the defendant's counsel in which they proposed to prove by said witnesses that the lot in question was paid for by the defendant, but that by arrangement between her and the plaintiff the conveyance was made by Ashelby to the plaintiff with intent to hinder and defraud the defendant's creditors, such intention being participated in by both the plaintiff and defendant. It is a general rule, subject, it is true, to certain exceptions, that where parties are concerned in illegal agreements, they are left without remedy against each other, provided they are in pari delicto. The law in such cases refuses to lend its aid to either party, but leaves them where it finds them, to suffer the consequences of their illegal or immoral acts. This rule is ordinarily expressed by the maxim, Ex dolo malo or ex turpi causa, non oritur actio, or by the maxim, In pari delicto potior est conditio defendentis et possidentis. These maxims are applied to executed transactions as well as to those which are executory, and are enforced by courts of law as well as courts of equity. As said by the chancellor in Bolt v. Rogers, 3 Paige, 154: "Wherever two or more persons are engaged in a fraudulent transaction to injure another, neither law or equity will interfere to relieve either of those persons, as against the other, from the consequences of their own misconduct." In Smith v. Hubbs, 10 Me. 71, the court say: "There is a marked and settled distinction between executed and executory contracts of a fraudulent or illegal character. Whatever the parties to an action have executed for fraudulent or illegal purposes, the law refuses to lend its aid to enable either party to disturb. What

ever the parties have fraudulently or illegally contracted to execute, the law refuses to compel the contractor to execute, or pay damages for not executing, but in both cases leaves the parties where it finds them. The object of the law in the latter case is, as far as possible, to prevent the contemplated wrong; and in the former, to punish the wrong-doer, by leaving him to the consequences of his own folly or misconduct." See also Miller v. Marckle, 21 Ill. 152; Nellis v. Clark, 20 Wend. 24; Howell v. Fountain, 3 Ga. 176; 46 Am. Dec. 415; Carey v. Smith, 11 Ga. 539; White v. Crew, 16 Ga. 416; 1 Story's Eq. Jur., sec. 298.

If it be true, as the evidence offered would tend to show, that the defendant purchased the lot in question of Ashelby with her own money, but, for the purpose of hindering and defrauding her creditors, entered into a fraudulent arrangement or conspiracy with the plaintiff to have said lot conveyed to him, said transaction was illegal, and within the condemnation of the fourth section of our present statute of frauds. The transaction being consummated by the execution of the conveyance to the plaintiff, leaving the defendant in the possession which she had previously obtained under a demise from Ashelby, the law should leave them both where it finds them. The defendant clearly could not be permitted to go into a court of equity to compel an execution by the plaintiff of his trust, and it would seem that, upon the same principle, the plaintiff should be debarred from coming into a court of law to use his ill-gotten title for the purpose of recovering of the defendant the possession.

We know of no case where this precise question has been. decided by this court, but cases are to be found where the reasoning adopted has a tendency to support the view above expressed. The case of Rogers v. Brent, 5 Gilm. 573, 50 Am. Dec. 422, was ejectment, brought by the holder of a patent from the United States, issued to him as assignee of the certificate of entry, against the holder of a title derived through a sheriff's deed executed upon a sale of the land on execution against the original holder of said certificate prior to its assignment to the plaintiff. The court, in holding that the assignment of the certificate and the patent subsequently issued thereon were fraudulent and void as to the defendant, said: "The law is, that the common-law courts may entertain jurisdiction of questions of fraud, and that a conveyance, whether it be by deed from an individual or by a patent