The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1881-12-28
IA ordered h le placed IN the Calendar Of The
next term ~ The Circuit ocNrL
cnAs, e. nANNiA
A, EaANcts lcen,
t,AwANNcR McVushS,
AS, Narlwell fer the Exceptions,
supr~me Court 81 che Hawaiian tsiAaaa
SpeeiAl rNrrA, November 1881,
AloNA ya, !, NrrAr.M UNIV,

ALoNA va, !, AtfAt@M hANVN
.ys,AR. c j., Necslss aaa Ass,ls, j J,-0P0'-
laN WAs CeWN " AWNltA u
Thlaia Az action Of aesNmpsit Tor money |
had and reviewed II MAS tried before Mr.,
Justice Judd, the jury being waived, 1'he
July Term, 1881. who decided that the plain
til could not recover To this deeisiON the
plaintiff duly excepted and bTough, his ex-
oep,ionS to the Court in hNneo,
The facts are substantially az follows; On
tho 9th day of November, lssl, the plaintiff
paid To defendant $3.50, Ns rent in advance for
ave years, for u piece Of land in wNiNluN,
Oahu. The recent passed at the time Ia put
in evidence and also lease from defendant to
plaintiff, dated Nov. lat, lsso, and recorded
Nov. 9th, 1880, for the said land for 10 years,
There il also in evidence the records OF u
suit in Equity in this Court, between one
Aiau (ch.) against this sAme defendant, ku-
pau, for the specific performance Of an agree
nent in writing whereby Kupau agreed on
the lat day of Nov, 1850, 10 consideration OF
$50 paid, TO execute lease to the said Aiau
for the land mentioned above for Is years.
This agreement is dated Oct. 25th, 1880. The
plaintiff Aloha was correspondent in the
EQUITY suit, and the bill alleges that Kupau,
conspiriug with Alona TO defraud Aiau,
fraudulenily executed and delivered the lease
Of tho lst Nov. TO Aloha, who knew OF tho
agreement TO lease previously made by ku-
pau. The bill prayed for an answer from
both Respondents: that the recorded lease DO
decrecd to be void, and ordered TO be deliv-
cred up for cancellation, and that knpau be
ordered to execute lease to plaintiff, Alan,
in conformity with the agreement. The case
went 10 q hearing, and the CONT found on the
evidence that Aluna had actual notice Of tho
previous conveyance, aud that therefore the
prior record of the lease availed him nothing.
The plaintiff seeks in this action to recover
back the rent advanced on tie ground that the
lease which lie took from defendant has been
ordered to be delivered up for cancellation,
and a lease TO Aiau has been executed. Mr..
Justice Judd in tho Court below held that the
plaintiff could not recover. From this deci-
sion the plaintiff appeals to the Court In
Banco.
DY THE COURT.
We have examined with great care the
decision of the Court below in this case. and
the evidence on which it was based, and we
think the decision must be affirmed. That
Alona and Kupau attempted 10 defraud Aiau
out of his lease, there can be no doubt. That
Kupau knew that he had Heretofore leased TO
Alan is unquestionable; that Alona also knew
it, was found by the Court and is indisputable.
Knowing this fact they combined to give and
take the lease, and Aloha paid and Kupau re-
ceived the $3.50 sought to be recovered here,
and the lease was at once delivered and re-
corded. The inevitable object was to try to
cut off, legally, the prior agreement TO Aiau,
and both the parties in this case surely knew
that that was the object This was fraud and
the plaintiff and defendant knew it /; they were
in pari delicto.
The general rule is, that when an Illegal
contract has been made, neither a Court OF
Law nor of Equity will interpose to grant re-
lief to the parties thereto, if they have been
equal partalers and promoters of the ilegaity,
but will leave them as it finds them, accord
ing to the MAXIM" "In pdri detictJ potion est
condaio dcfendentiS et posside"fis.
See Story on Contracts, Section 4S9.
Doubtle,s s, in such cases it has been held,
since the cary days, that the plaintiff cannot
recover, with certain exceptions which will
now be considered See Parsons on Con-
tracts, Vol. 2, p. 1884.
Pepper VS. Haight, 20 Barb. 429-3s.
If The fraudulent contract made is still exc
cutory, and the fraudulent purpose has not
been consumnated, any money paid may be
recovered back before the fraudulent consum-
nation.
See Morgan VS.. Croft, Barb. 527-s-9 and
cases cited
That is not this case, for the fraudulent
purpose was consummated by the delivery
and record of the lease to the plaintiff. 1t is
also held by vel! considered authorities that
conveyance of either real or personal pro-
perty in fraud of creditors, although voidable
by them, is good between the parties even if
the grantee shared in the fraudulent intent.
See Harvey vs. Varnum, IS Mass. 1920;
also dissenting opinion of Chief Justice Nell
son. Nells VS. Clark, 20 Wend. 3s-oiO.
If this be sound law. and we do not now
question it, it does not help the plaintiff. An
important and radical distinction is made be-
tween an action in affrmance of an illegal con-
tract, and where the action proceeds in dis
affirmance of such contract, and on the
ground that it is void, and seeks to prevent
the defendant from retaining the benefit which
he has derived from an unlawful act. To
affirm such a contract is allowed in many
cases. But in this case there can be no sub
stantal affirmancc of the fraudulent contract,
for the purchaser, sought to be defrauded, has
been able to show the fraud, and has appro-
priated to himself the substantial fruits sought
by it. True, as said in the decision below,
under the Mass. case, the fraudulent lease
might be postponed to the lease established,
but the Court now concur in thinking that this
| postponed right would be of little value, and
that all substantial value is lost to the plain
tiff and, that being the case, the plaintiff seeks
to disaffrm tile contract, and TO recover what
/ he had paid in fraud. OF the failure of the
lease the plaintiff took the risk, as the vendee
| in deed executed to defrnud creditors, takes
| the risk that the creditor may set it aside.
Sec 2O7 Wend. 40. If set aside, no Court
ever held that the vendee cOuld recover from
the vendor the money paid down OH the sale.
The action here seeks to avoid an executed
contract which was mdt,m IN Sc; no leading
authority can be found to sustain recovery
| in such a case.
See Morgan vs. Croft and cases cited, 4
Barb, p. 527.
There is also an undoubted distinction be-
tween contracts which are immoral and crimi-
nal, and those that are merely void. See
Vischer VS.. Yates, IL John. 20. Nellis ".
Clark, 80 Wend. 80.
On void contracts TecOveries have been
allowed White VS. Franklin Bank, % Pick.
49, Utica Insurance Co. VS.. Caldwell, 3
Wend 296.
This is not case Of merely void contract.
II is immoral None of the distinctions
above referred to help the plaintiff in this case.
We have examined with care all the available
authorities cited by the plaintiffs counsel, and
think that all may be classed under the excep-
lions, allowing recovery above referred to.
The cancellation Of the lease ordered was Of
no moment. The Judgment of the Court in
the equity suit could not affect the validity of
the contract between the parties in this case,
and certainly could not give the plaintiff a
right to recover here, if, hut for that, he
/ kaJ ,ot,