Upton v. Haines

It is not distinctly denied in the bill that Johannah Rourke knew for what purpose the note and mortgage, which she executed with her husband, were given. The plaintiff alleges that John Rourke was a saloon keeper and retail dealer in liquors, and, in order to obtain credit for ale and beer thereafter to be sold by the defendants to him, and for no other consideration whatever, he and his wife executed the note and mortgage in question, and that whatever sum, if any, is due upon said note, is due for ale and beer sold under this arrangement. In State v. Biddle, 54 N.H. 379, it was held that the court cannot, as matter of law, say that ale and beer are intoxicating liquors, and so within the terms of the statute prohibiting the sale thereof. The plaintiff asks that this mortgage may be decreed null and void, upon the ground that the consideration of the note was illegal; and the defendants in their answer admit that the consideration was illegal. Both parties therefore admit that the ale and beer furnished by the defendants to John Rourke were intoxicating liquors. It necessarily follows, then, that if this note was given by the wife with knowledge or notice of its consideration, the law must leave the parties, who are in pari delicto, in the position in which they have placed themselves. Weeks v. Hill, 38 N.H. 199; Leach v. Tilton,40 N.H. 473. But the defendants have filed their answer, in which they deny that the note was given for the sale of ale as alleged in the bill, but say that it was given in consideration of an agreement between the defendants and John Rourke, by which he acquired for a term of years the sole and exclusive right to sell the ale and beer manufactured by the defendants in the city of Manchester. But it is not distinctly alleged that the wife had notice or knowledge of the consideration of the note. *Page 286 The plaintiff has set down the cause for a hearing upon the bill and answer. The answer not being sworn to, is regarded in our practice as a mere pleading. The allegations of the bill, so far as not denied by the defendants in their answer, are taken as true, and the allegations in the answer, so far as they are responsive to the bill, are also to be taken as true. The sale of spirituous and intoxicating liquors being prohibited by law, a contract to give another the right to the exclusive sale of such liquors is a contract to promote the sale of an article prohibited by law, and is consequently an illegal contract. The legal title to the mortgaged premises was in the wife. If the purchase-money was furnished by the husband, there would have been a resulting trust in favor of the husband, of which the then existing creditors might have availed themselves; but as to subsequent creditors no such trust is raised.* If it should turn out on the trial that the wife had knowledge of the illegal consideration upon which the note and mortgage were based, the law would leave her where she placed herself; and her son, who takes her rights in the land by inheritance, would be in the same predicament, and so could not have the relief sought by the bill. White v. Hunter, 23 N.H. 128. If, on the other hand, it should be made to appear at the trial that Johannah Rourke had no such knowledge, no reason is now seen why the prayer of the bill should not be granted. Upon these views the order must be that the bill be dismissed, unless the plaintiff obtains leave in the circuit court to amend his bill, file a replication, and proceed to proof. * Pembroke v. Allenstown, 21 N.H. 107; Vogt v. Ticknor, 48 N.H. 242; — but see Dickinson v. Davis, 43 N.H. 648. REPORTER.