Opinion · Supreme Court of North Carolina
Phillips v. . Hooker
62 N.C. 193
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1867-06-05
- Topic
- general
How later courts describe this case
- holding the phrase “her house and lot north of Kinston” to be sufficient (emphasis added)
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UpLaw has not yet analyzed Phillips v. . Hooker. The absence of a flag is not a finding that it is good law.
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PHILLIPSv. HOOKER,62 N.C. 193(1867)
JOHN R. PHILLIPS v. ELEANOR HOOKER.
Supreme Court of North Carolina
(June Term, 1867.)
2. Such a memorandum setting forth that the agent agreed for "Mrs. H. to make a deed for her house and lot north of Kinston," to plaintiff, is not void as being too vague and indefinite — it being admitted by Mrs. H. (the defendant), in her answer, that she owned but one house and lot in the county, and that the agent had been authorized to sell her house and lot, and she is bound to conveyin fee simple.
3. The fact that the consideration of an agreement (made in 1862), was Confederate treasury notes does not invalidate it; contracts upon such consideration being ratified by an ordinance of the Convention (Ordinances of 1865, p. 56), and chs. 38 and 39 of the Acts of Assembly of 1866, which do not conflict with the Constitution of the United States.
4. ByPearson, C. J. In 1862 Confederate treasury notes being the only circulating medium in the State,ordinarydealings in them were not accompanied with criminal intent to aid the rebellion, and were therefore not illegal and void. This rule applies to executory as well as executed contracts.
5. ByReade, J. A contract is not void merely because there is something immoral or illegal in its surroundings or connections: Therefore, the issuing of Confederate treasury notes was illegal, but the use of them after they were issued, was not illegal.
1. The first objection is, that the contract was that of the agent only, and that the defendant was therefore not bound by it. We think otherwise. It is true that the note or memorandum of the contract does not expressly state that Amos Harvey was the agent of the defendant, or that he was acting as her agent, but it does sufficiently appear by implication that he was so acting, for he says, "I do agree for (196) Mrs. Hooker to make a deed," etc.; which means that she shall make a deed, etc. This shows that Harvey was acting as agent, and then a signature in his name satisfies the requirement of the Statute of Frauds, as was expressly decided inOliver v. Dix,21 N.C. 158. In that case, at page 155, it is said that "within the statute the signature need not be that of the principal, nor in his name, but that of the agent is sufficient." Besides, it appears from the answer that the defendant admitted the agency, and ratified the contract of sale made by the agent,Page 140a circumstance which is also relied upon inOliver v. Dixas having a binding effect upon the principal.Redmond v. Coffin,17 N.C. 439, andScott v. McAlpin,4 N.C. 587, referred to by the defendant's counsel, have no application, because they were cases of deeds of conveyance executed by attorneys in fact, and not cases of notes or memorandums of agreements under the Statute of Frauds.
2. The second objection is, that the note or memorandum of the contract is too vague and indefinite in several particulars: first, in that the defendant is to execute a deed without saying for what quality of estate; secondly, in that the location of the house and lot is stated only to be north of Kinston, without saying how far north; thirdly, in that the name of Mrs. Hooker is ambiguous, and, being a patent ambiguity, can not be aided by extrinsic evidence.
In noticing this objection, we must bear in mind that a note or memorandum of a contract is, in its very essence, an informal and imperfect instrument. Its object is to furnish aid to the memory of a transaction, and, though it must distinctly set forth all the material terms of the contract (Mallory v. Mallory,45 N.C. 80), it will answer the purpose, if it do so in such words as will enable the court, without danger of mistake, to declare the meaning of the parties. An agreement. (197) by a person having a fee simple interest in land to make a deed for it, is universally understood (in the absence of anything to show the contrary) to meana deed to convey the fee. So as to the location of the property, when it is said in common parlance that a house and lot is north of a particular town, it would always be understood as being situated somewhere in the vicinity of the north part of the town. At all events, when the house and lot are spoken of as her house and lot, and the defendant admits that she had but one in the county, there can be no difficulty about the identification. Under such circumstances the description becomes specific and certain, just as a legacy of "my twenty-five shares of bank stock," the testator having just that number of shares, would be specific, while a bequest of twenty-five shares, without the addition of the word "my," would be a general legacy.Davis v. Cain,36 N.C. 304. In this respect the present case differs materially from those ofAllen v. Chambers,39 N.C. 125;Plummer v. Owens,45 N.C. 254;Murdock v. Anderson,57 N.C. 77, andCapps v. Holt,58 N.C. 153, referred to by the defendant's counsel.
Mrs. Hooker admits her identify with the person who authorized Amos Harvey to sellherhouse and lot, which is also admitted to be the house and lot mentioned in the pleadings, and this is perhaps a sufficient answer to the objection; but we regard the nameMrs. Hookeras rather an imperfect than an ambiguous description, and therefore liable to explanation by testimonydehorsthe instrument, like the case of thePage 141bequest to the Deaf and Dumb Institution.Institute v. Norwood,45 N.C. 65. That explanation is amply furnished by admissions in the defendant's answer.
3. The next objection is one of vital importance, not only to the parties to this case, but to the whole community. The answer alleges that the consideration paid for the purchase of her house and lot was in Confederate treasury notes, and the defendant's counsel contends that such consideration was illegal, and that therefore the (198) contract of purchase founded on it was void. The illegality is said to consist in thepassingof the Confederate treasury notes, which, it is contended, had a tendency to aid the rebellion. The memorandum of the agreement does not state in what kind of currency the purchase money was to be paid; but as the cause is set for hearing upon the bill and answer, without any replication, we must take the allegation of the answer, that the price of the house and lot was paid in Confederate treasury notes, to be true. The question is thus fairly and directly presented, Whether a contract of purchase, founded upon such a consideration, can be enforced in a Court of Equity?
As a general rule it must be conceded that a contract, the basis of which is an illegal consideration, is void both in law and equity.Ex dolomalo non oritur actia, is a maxim too well established to be disputed, and too beneficial in its operation to be repudiated by any court.
The question, then, is reduced to this: Was the use of the Confederate currency as the medium of exchange in the transaction between the parties to the contract, illegal? In some of the other Southern States it is said that it has been so decided, and the counsel for the defendant has referred us to the note of a decision made in Tennessee to that effect. 1 Am. Law. Rev., 591. The case referred to isHarris v. Thornburg,43 Tenn. 156, and is thus shortly stated: "A note was given for one hundred dollars in Confederate treasury notes lent to the maker. At the trial the jury were instructed that if the defendant borrowed Confederate treasury notes, knowing at the time what he was getting, he would be liable on the note, and the jury returned a verdict accordingly for the plaintiff. On writ of error to the Supreme Court, the judgment on this verdict was reversed, that tribunal holding that the consideration for the note in suit, being treasury notes issued by rebels in violation of the highest law of the land, and for the (199) purpose of levying war against the government, was illegal, and the note given by them void."
I am saved from the necessity of considering whether this case was properly decided by the Supreme Court of Tennessee, for the concurrent action of the Convention and the General Assembly of this State has prescribed a different rule of law for us. The Convention of 1865Page 142passed an ordinance entitled "An ordinance declaring what laws and ordinances are in force, and for other purposes," in which, among other things, it is ordained that "All contracts, executory and executed, of every nature and kind made on or since 20 May, 1861, shall be deemed to be valid and binding between the parties, in like manner, and to the same extent, and not otherwise, as if the State had not, on the said day, or afterwards, attempted to secede from the United States; and it shall be the duty of the General Assembly to provide a scale of depreciation of the Confederate currency from the time of its first issue to the end of the war," etc. See Ordinances of the Convention of 1865, page 56. The injunction upon the General Assembly imposed by the above ordinance was carried out by Laws 1866, chapters 38 and 39; the first of which is entitled: "An act relating to debts contracted during the war," and the second: "An act to establish a scale of depreciation of Confederate currency."
These provisions of the State authorities, having been made for the purpose of enforcing and not of impairing the obligation of contracts, do not conflict with the Constitution of the United States, and are therefore valid and binding upon all the people of the State. It follows that the defendant can not object to the fulfillment of her contract on the ground that she chose to take Confederate treasury notes in payment for the price of her house and lot.
4. The fourth and last objection taken against the claim of (200) the plaintiff to a specific performance is, that the bargain is a hard and unequal one, and on that account the Court of Equity ought not to enforce it, but leave the plaintiff to his remedy at law, by a suit for damages. A conclusive answer to this objection is, that there is nothing in the pleadings to show any inadequacy of price, or any other inequality in the transaction. The agreement was, so far as appears, fairly made by the defendant's agent, who received the purchase money and paid it over to her without a murmur of disapprobation. The plaintiff was thereupon permitted to take possession of the premises, and has held them ever since, using them and expending money upon them as if they were his own.
The circumstances of the present case differ, therefore, very materially from those ofCannaday v. Shepard,55 N.C. 224, and the other cases cited by the defendant's counsel, in which the court refused to decree a specific execution.
The plaintiff is entitled to the relief he seeks, and may have a decree accordingly.
In 1862 the defendant agreed to sell to the plaintiff a house and lot, and received $2,500 in Confederate treasury notes as the consideration, and put him in possession. The contract had no special political significance, and there is no averment that it was entered into with an intent to give aid to the rebellion; so it is to be taken as a dealing in the ordinary transaction of business. The plaintiff bought the house and lot because it suited him. The defendant took the Confederate notes because she needed funds.
It is said that every dealing in Confederate treasury notes gave them credit and circulation, and consequently aided the (201) rebellion; so every such dealing was illegal and not fit to be enforced by the courts, without reference to the intent of the parties. The proposition is general — every man and woman who, in the ordinary course of business, received a Confederate note did an illegal act, tainted with treason. It embraces all contracts, as well contracts executed as executory; for if true as to one, it is also true as to the other, and it aims a blow at all dealings among our people during the war, and upheaves the foundations of society. I do not believe the proposition can be maintained by any authority or any principle of law.
1. That may be conceded that if, at the outbreak of an insurrection, parties to contracts,with a view of aiding the causeby giving credit and circulation to its paper, receive it as money in their dealing, such contracts are illegal.
But that is not the case under consideration.
In 1862 the contest had assumed the magnitude and proportions of war; each party in territorial limits had the boundaries of a mighty nation, and each party counted its people by millions. The "Confederate States" was recognized by the nations, and by the United States itself, as a belligerent power, entitled to the rights of war; and, in the exercise of its powers, it had issued paper as the representative of money, which excluded all other currency, and constituted theonly circulating medium ofthe country. The government of the United States was unable to protect the people, and there was no currency but Confederate treasury notes. In this condition of things, was every man to stop his ordinary avocations and starve, or else be tainted with treason and deemed guilty of an illegal act if he received a Confederate treasury note?
The Attorney-General of the United States, in his opinion on the subject of disfranchisement, uses this language: "Officers in the rebel States who, during the rebellion, discharged official duties, (202) not incident to war, but in the preservation of order and thePage 144administration of law, are not to be considered as thereby engaging in rebellion. The interests of humanity require such officers for the performance of such official conduct in time of war or insurrection as well as in time of peace, and the performance of such duties can never be considered as criminal." Was a judge to cease to do these "duties required by the interests of humanity" — "the performance of which can never be considered as criminal" — or was he to perform the duties and starve, rather than commit an illegal act byreceiving his salary inConfederate treasury notes?Was the merchant to close his store, the blacksmith and shoemaker to quit work, and the farmer to let his tobacco and surplus grain rot on his hands, and allow his family to suffer for clothing and the other necessaries of life, or do an illegal act by receiving Confederate notes? Really, unless the receiving of such notes can be connected with a criminal intent to aid the rebellion, the question seems to me too plain to admit of argument. A naked statement exposes the absurdity of the proposition. The courts must act on the presumption that Confederate notes were received in ordinary dealing — not for the purpose of aiding the rebellion, but because there was no other currency.
2. Look at the subject in another point of view: At the close of the war the President granted amnesty and pardon to all, save a very few individuals. Congress by the Reconstruction Act disfranchised only those who, having taken an oath to support the Constitution of the United States, afterwards engaged, actively, in the rebellion, and it has refused to enforce the rigorous measure of confiscation. On what principle, then, can it be that the courts are called upon to take up the matter "at the little end," to search into the private dealings of the people and all the ramifications of ordinary business, and declare (203) of no force — in effectconfiscate— all contracts based upon the consideration of Confederate notes? What good can result from this action of the courts? It can have no effect upon the rebellion, for that is over. It can have no effect upon the future, for "necessity knows no law," and whenever a condition of things occurs, in which the people must use the only currency of the country or starve, the currency will be used. The idea of the courts assuming the duty of preventing civil wars by holding that it is illegal to receive the paper of rebels in ordinary business transactions, when there is no other currency, that such contracts are not fit to be enforced, presents to my mind a palpable absurdity. So, what good will be done by this action of the courts? None, save only to show, on the part of the courts, a detestation of treason by treading on the extremities of the monster after it is dead.
3. InBlossom v. Van Amringe, ante, 133, the maxim,ex turpi causaPage 145actio non oritur, was pressed on the court, and it was insisted that, as the parties had made a transfer of property, infraud and deceit, withan intentto evade the confiscation acts of the government of the Confederate States, the case fell under the maxim. The court says: "The objection would no doubt have been fatal if taken before a court of thede factoState government, while it formed a part of the Confederate States; but this court is a coordinate branch of a rightful government, forming a part of the United States, and can not entertain such an objection." In our case the matter is reversed. The turpitude, if any, was aimed at the United States, and the maxim applies, provided there be the criminal intent. That is the question! I deny the intent — there is no evidence of it or anything from which it can be implied. It can not be held that the mere receiving a Confederate note was illegal and base, without involving in the imputation of baseness every man and woman in the State! The minister of the gospel, the judge, who received his salary; the physician, the merchant, the mechanic, the (204) farmer, who carried on his ordinary business, the poor seamstress, who, at the end of the day, received her hard-earned wages — wereallguilty of an act so base that the doors of the courts of justice must be shut against them! The proposition is monstrous. During the war a farmer should not have made more grain than enough to support himself and family; making a surplus was illegal — it aided the rebellion. If every man had quit work the rebel army could not have been sustained, the war would have been stopped by starvation. We were told in the argument that"gold, as well as iron, is a sinew of war." It may be added,meatandbreadare also sinews of war.Reductio ad absurdum!
4. But, it is said, the consequences of holding all such dealings to have been illegal will not be so grievous after all, for, in its practical application, the maxim will only make voidexecutory contracts. The principle, if a sound one, evidently includes all contracts, executed as well as executory, and the admission that in practice it can only be made to reach the latter demonstrates the impotence and absurdity of this action of the courts as ameansof putting a stop tocivil wars. Let us see how it is to operate: A man buys a tract of land, pays for it in Confederate notes andtakes a deed. The court can not reach him, for it is met by the maxim,"in pari delicto melior est conditio defendantis";so he keeps the land, not because he is innocent, but because the court can not take it from him and restore it to the original owner, who is equally guilty. If one has paid off a bond in Confederate notes, whether the creditor will be allowed to sue on theoriginal debt, which is not tainted with this"turpi causa,"is a problem that I will not undertake to solve.Page 146
But supposing the bond is only paid in part, the payment must be rejected; for, being in Confederate notes, it is of no more legal effect than if made in counterfeit money. Or suppose, in our case, that (205) Mrs. Hooker brings ejectment for the land; the contract has been in part performed, and the defendant is in possession, will the court shut its doors against her, on the maxim,in pari delicto?
In short, is the practical application of this novel principle to be allowed to cover all intermediate cases, when the contract has not been fully executed, or is it to be confined to contracts wholly executory, where the purchaser has paid the price, but, in the simplicity of his innocence, has neglected to take a deed, and has not even taken possession? The amount of it is: all who required the Confederate notes to be paid down, or who have taken deeds and acquittancesunder seal, although equally guilty, are to go unpunished, and only those who gave credit to their neighbors, or who neglected to take deeds, are to be made victims to the vengeance of the law, while the remiss debtors and dishonest vendors are to be the sole gainers, although equal participants in the illegal act. Lame and impotent conclusion!
Thus encouragement is to be given to dishonesty, justice is not to be administered, and the people of the country are to be involved in utter perplexity and confusion, in order to make a useless show of zeal on the part of the courts "to punish rebels."
A contract is not void merely because ittendsto promote illegal or immoral purposes.Hilliard on Sales, 376;Armstrong v. Toler, 11 Wheat., 258;Story Conflict of Laws, 258.
A contract for the sale of a house and lot is not vitiated by the fact that the vendor knows, at the time of making it, that the vendee (206) intends it for an immoral or illegal purpose.Armfield v. Tate,29 N.C. 259.
A sale of goods is not void although the seller knows that they are wanted for an illegal purpose, unless he has a part in the illegal purpose.Hodgson v. Temple, 5 Taunt, 181; in which case MANSFIELD, C. J., says: "The merely selling goods, knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor of his just right of payment." InDater v. Earl, 3 Gray, 482, the Court says: "If the illegal use to be made of the goods enters into the contract, and forms the motive or inducement in the mind of the vendor or lenderPage 147to the sale or loan, then he can not recover, provided the goods or money are actually used to carry out the contemplated design; but bare knowledge on the part of the vendor that the vendee intends to put the goods or money to an illegal use, will not vitiate the sale or loan, and deprive the vendor of all remedy for the purchase money."
Where goods are bought from an enemy, even in his own territory, by a citizen of the United States, the sale is valid, and the price may be recovered, although the act might be a misdemeanor, and the property liable as prize.Coolidge v. Inglee,13 Mass. 26. Authorities are abundant to the same effect.
It will be seen, therefore, that a contract is not void because there is something immoral or illegal in its surroundings or connections. And yet it is equally certain that a contract is void when the consideration is illegal or immoral. What, then, is the criterion? Probably the following cases will show the dividing line: Goods were sold to a man who the vendor knew of the design:Held, that the contract intended to smuggle them and defraud the revenue, and was valid, and that the vendor could recover the price.Holman v. Johnson, Cowp., 341. Goods were sold to a man who intended to smuggle them and defraud the revenue, and the vendor not only knew of the purpose, but put (207) them up in a particular manner, so as to enable it to be done:Held, that the contract was void, and that the price could not be recovered.Briggs v. Lawrence, 3 Term R., 454. Now what is the difference between the two cases? None! — except that in the latter case it was part of the arrangement, and entered into theintentof the parties that the smuggling should be done. All these authorities show that theintentof the parties to accomplish the illegal thing is necessary to vitiate the contract; and therefore, in the case before us, unless the intent of the parties in their contract was to aid the rebellion, the fact that it did so (if it did), by giving currency to the notes, does not vitiate the contract.
It is not pretended that the Confederate treasury notes were ofnovalue. It is conceded that they were of value, and that, at the time of the sale in 1862, less than two dollars of the notes would buy one dollar of gold. But it is contended that although of value they wereillegal. In what sense were they so? In no case can the thing used as a consideration, of itself and independent of the intention of the parties, invalidate the contract, if the thing be of value; unless, perhaps, by express statute. There is nothing which may not be turned to mischief in its use, as poisons, deadly weapons and the like; but still their sale is a sufficient consideration to support a contract, unless it be theintentof the sale to do mischief.Randon v. Toby, 11 Howard U.S., 493, is very strong in point. In that case Africans had beenPage 148imported and sold as slaves, which is forbidden by law. The vendor brought suit for the price of one which he had sold, and the defense was that the consideration was illegal. The court says: "The plea that the notes were given for African negroes imported into Texas after 1833 is unavailable. On the argument here, it was endeavored to be supported on the ground that the notes were void, because the (208) introduction of African negroes into Texas was contrary to law. If these notes had been given on a contract to do a thing forbidden by law, undoubtedly they would be void. Neither of the parties had anything to do with the original contract, nor was their contract made in defiance of law. The crime committed by those who introduced the negroes into the country does not attach to those who may afterwards purchase them. As respects the defendant, therefore, he has received the full consideration of his notes." And then follows this strong language by the court: "If the defendant should be sued for his tailor's bill, and come into court with the clothes made for him on his back, and plead that he was not bound to pay for them, because the importer had smuggled the cloth, he would present a case of equal merits, and parallel with the present; but he would not be likely to have the verdict of the jury or the judgment of the court."
So in the case before us, it is conceded that it was illegal to issue the treasury notes, just as it was illegal to import the negroes; but the illegality is in theissuingin the one case and in theimportingin the other, and does not attach to those who afterwards use the thing issued or imported. It was insisted, in the argument before us, that the value of the treasury notes depended upon their circulation, and that the parties, by using them in their contract, aided in their circulation; so, in the case just quoted, the value of the importation of negroes depended upon their sale, and the transaction between the parties aided their sale, and in that way encouraged importation. The fact was undoubtedly true, yet it did not render the contract void. The illegality consisted in their importation, and not in their use after importation; so the illegality consisted in the issuing of the treasury notes, and not in their use after they were issued. If balls, which had been shot in battle, had been found and sold, it might as well be said that (209) the consideration was illegal, because they had been made for and used in the rebellion. InCoolidge v. Inglee, supra, the case was that in the War of 1812 a citizen of the United States bought goods of the enemy, contrary to law, and brought them to the United States and sold them, and when he sued the purchaser for the price, the defense was set up that it was unlawful for the plaintiff to buy the goods, and that, therefore, the consideration of the contract was illegal; but the court held the contrary. It is absurd to suppose that the goodsPage 149in that case, or the treasury notes in this, were illegal. Were not the goods precisely the same as if they had been bought of a friendly power? Certainly! Thegoodswere not illegal, but thetradingwith the enemy was.
This is the first time that this very important question has come before us for consideration. It has been well argued and patiently considered. We are not without important aid in determining the question. It is well considered by the Convention of 1865, and by the Legislatures which have since assembled. The Convention was prompt to declare that the rebellion and everything in aid of it was illegal. And it declared void all contracts which were in aid of it; but it did not declare void all contracts, the consideration of which were Confederate treasury notes; on the contrary, it plainly declared such contracts valid; that all contracts made during the war shall be deemed to be payable in money of the value of said notes; and directed the Legislature to prepare a scale to show, not that said notes were of no value, but to show what their value really was. And the Legislature did prepare such a scale. Now, if the defense set up in this case be good, then the Convention and Legislature ought to have made short work of it, and declared that all contracts should be deemed to be payable in Confederate treasury notes; and that such notes were illegal as a consideration to support a contract, and therefore that all such contracts were void. I do not consider the question, whether the (210) Convention or the Legislature had the power to validate or invalidate contracts, but their action is cited to show that those bodies regarded these notes as valuable considerations to support contracts. We thus have the concurrent opinions of the Judiciary, the Convention and the Legislature of the State, and an uninterrupted train of decisions both in England and the United States on kindred subjects, that Confederate treasury notes are not illegal considerations in contracts between citizens, unless it was theintentof the parties to the contracttherebyto aid the rebellion.
Our attention was called to an abstract of a case decided in Tennessee, in which Confederate treasury notes were held to be an illegal consideration. We regret that we have not the case at large. It seems to have been decided upon the ground that it was the money of rebels. Suppose it had been the coin of rebels. Doubtless there is some better reason than that assigned in the abstract which we have given. For it appears to beanencouragement to rebels!that they should be exonerated from a performance of their contracts, because of their participation in so great a mischief. If the Judiciary could be influenced at all by this consideration, it would hold them to a more rigid performance of all their undertakings. As a court, we neither favor nor oppress rebels,Page 150but hold the scales of justice even. But we forbear further comment, lest we do our sister court injustice.
PER CURIAM. Decree for complainant.Cited: Emmerson v. Mallett, post, 237;Turley v. Nowell, post, 302;Harrell v. Watson,63 N.C. 460;Martin v. McMillan, Ibid., 487;Garrettv. Smith,64 N.C. 95;Kingsbury v. Lyon, Ibid., 129;Smitherman v.Sanders, Ibid., 526;Haughton v. Meroney,65 N.C. 125;McKesson v. Jones,66 N.C. 264;Wooten v. Sherwood,68 N.C. 338;Neaves v. Mining Company,90 N.C. 415;Hargrove v. Adcock,111 N.C. 171;Lupton v. Lupton,117 N.C. 31;Fulcher v. Fulcher,122 N.C. 102;Combes v. Adams,150 N.C. 68;Stephens v. Lumber Co.,160 N.C. 109.
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