The Yazoo Whig and political register. (Yazoo City, Miss.) 1840-1842, 1842-03-25


not the plaintiff estoped himself from resist
ing the enforcement of the Deed of Trust by
reason of his promise to discharge it---that
promise resting upon legal and valid con-
sideraton, wholly disconnected from the
purchase by John B Pease. Suppose Ballard,
Franklin q Co. had brought suit directly a.
gainst James M Pease upon his promise to
pay the debt due them from John B Pease,
instead of proceeding uponth the Deed Of Trust
against the property which was bound for
the payment of that debt, It would not,
apprehend, be pretended that in such a case,
James M Pease could defend himself against
his contract upon the ground of the illegality
Of John B Pease's contract. 1t would be
sufficient answer to such a defence to say
that the consideration upon which James M
Pease- contracted to pay the debt was in itself
legal and valid, and that he could not go be-
yond that. There was a new consideration
for that promise in no way affected by the
illegality of the contract which he promised
10 discharge. Here no advantage was taken
of James M Pease, he purchased with his
eyes open, there was no illegally in his con-
tract: he received the property bound for the
payment of Ballard and Co.'s debt, ard in
consideration thereof promised to pay that
debt. This view of the case is fully sus-
tanned by the following authorities. 2 Conn.
Rep. 1872, 8; Mass. Rep. 49, Bearee VS. Bar
stow /; BOs. & Pull. 8; Bibb176, II Whea-
ton 258; Hardin's Rep. 42l. 1t is true that
the proceeding under the Deed of Trust was
not based upon the promise of James NJ
Pease; but it was substantially the same thing,
the proceeding was against the property
bound for the payment Of the debt, which
James N Pease had become liable to pay in
consideration of having become the purchs-
ser of that property. The mere difference
in the form of the remedy cannot, it seems
to me, make any difference in the application
of the principles which have LAID down in
this case, Suppose James M. Pease upon
the purchase of the land and slaves, had him
self, made a Deed of Trust on that property
to secure the debt which he assumed TO pay
Ballard, Franklin & Co. for John Pease,
could he have resisted the enforcement of
that Deed upon the ground here set up? I
think he could not; and yet by purchasing
the property which he knew was subject to
this Deed of Trust, and promising to pay the
debt which it was intended to secure, he
thereby virtually adopted it as his own deed,
and cannot now be allowed to rePudiate it.
In the case of Scott VS.. Lewis, Conn.
Rep. 1872, where A borrowed money at usu-
rious interest from and gave as surety;
A afterwards paid the amount OF the note to
his surety by selling him property upon his
surety's promise to pay the holder of their
Joint note. The surety instead of paying the
note, took it up and gave his own in lieu of
it, upon which suit was afterwards institu-
ted. and the defence set up was the void
consideration OF the original note. The Court
held that the note was given on new con-
sderatOn, and was wholly unaffected with
/ the illegality of the original transaction
| The same principle is distinctly recognized
and more fully examined in the case of Arm
strong VS.. Toller, IL. Wheaton, 258, where it
is laid down that a promise disconnected
with the illegal act, and founded on new
consideration, although it was known to the
party to whom the promise was made even
! though he was the contriVer and conductor
of the illegal act, was nevertheless VALID
The case Of Bearce VS. Barstow1 8 Mass.
Rep. As, is a case sustaining the same prin-
| cple; so also is the case Of Tenant VS. Elliot,
| 1 b. & p, 8, where it was held that broker
to whom an underwater had paid the loss
on an illegal policy, could not resist paying
il over to the assured. Chief Justice Eyre
said. tthe question is whether he who has
received money to another's use upon an lille
gal contract, can be allowed to retain it, and
that not even at the desire Of those who paiC
~ 70 uO AOts ana OF buaL opinion
was Justice Butler. Does not the Deed o
Il Trust in this cause, conveying the propert,
to third person preclude the question Of thu
illegality Of the original contracil-Suppos,
). bill filed by Ballard, Franklin b Co, VIII,
are the cestuys que Eustin the Deed, agains
the Trustee to enforce the trust-could Gh
Trustee resist such 4 bill upon the ground O
Illegally Of the contraction of the debt which
j the Deed was intended TO securei Think b
could not. In the case of Halsey W Whit
ney, 4 Mason's Rep. 206, where convey
ance had been made in trust for the pay
ment of debts, Judge Story said the obligation
of the Trustee to perform the trust accoFdin
to the provisions Of the Deed was 9 suiliclen
4 reconsideration, so far as he was conceFneu =
, Here there is a conveyance IN trust g tnlF
person having no connection with the orig
! nal contract, and that person alnd ertakes
pay the original debt ontof the property
b conveyed. Although { may De aafnl!se
S shat sale BY the importer Ct 9 pFonioile