Southwestern Railroad v. Chapman

McCay, Judge. Our Code, section 1794, provides “that the father of a minor, and if the father be dead, the mother is the natural guardian of the minor;” and it then adds, “the natural [560] guardian cannot demand or receive the estate of the minor until he or she gives bond, approved by and to the Ordinary.” Without doubt this is a wise and proper provision, and, without doubt, neither the father or mother of a minor can legally bind the ward by a receipt of the property until the bond be given as required by law. A receipt of the ward’s money is, no doubt, by virtue of this provision illegal — that is, without authority — a payment to the natural guardian is no legal payment, and the person paying is still bound. All this is true, and in this sense such payment or receipt is illegal. It is just as illegal to pay money due a minor to his natural guardian who has not given bond as to pay it to any other unauthorized person. The payment, in either case, is without authority, not sanctioned or authorized by law. But it seems to me absurd to say that it is illegal in the sense that it is corrupt — contrary to public policy — a violation of law, so that the Courts will refuse to interfere between the parties engaged in the transaction under the maxim : “ In pari delicto, potior est conditio defendentis.” It is, it is true, a well-settled rule that parties engaged in violating the law cannot call upon the Courts to aid them if either gets the advantage of the other. Money paid to compound a felony cannot be recovered back ; and, generally, a debt arising under any agreement which is, by law, a crime or contrary to good morals, or against the declared public policy of the State, cannot be recovered. These are familiar rules, and we have nothing to say against their existence or their wisdom. But it is, in our judgment, an utter perversion of the rules we have referred, to, to apply them to such a case as this. The payment of this money to the mother was in no sense corrupt or a crime, or contrary to good morals, or against public 'policy. It was simply unauthorized; the payment was no protection to the company. The mother had no authority to receive it. It stands precisely as if it had been paid to any other unauthorized person, and that is all. The law does not prohibit such a payment; it simply declares it [561] unauthorized. In announcing that the parent is the natural guardian, it qualifies his powers as a guardian by witholding from him the right to take possession of the minor’s estate. If he does get possession, it seems to me the very height of absurdity to say that the person who lets him have it is guilty of such a violation of the law as that he has no status in a Court of justice; that he comes in as a law-breaker, and cannot be listened to. The strongest possible illustration of the wrong of such an application of this law is in this case. Here it appears, by the bill, that this payment was made in good faith, without any intent to do wrong, but with the purpose of honestly and fairly complying with the duty of the company. And yet it is asserted that the Courts of justice, in holy horror of conniving at a violation of law, will refuse to compel the mother, who has got this money without authority, to pay it back. If the rule has any ap-. plication to this case, it must go as far as this; for if the money was illegally paid, in the sense of the rule which is relied on, it can no more be recovered back from Mrs. Chapman than it can in the method now insisted on by the plaintiff in error. The truth is, the present proceeding is only a proceeding to get the money back from Mrs. Chapman, and equity is resorted to, not because a Court of law would refuse to interfere against her, but because she is insolvent and has put the money to such use as that it is a proper charge in her favor against the estate of the minor. Having a right of action at law against Mrs. Chapman, and she having a right to compel the minor to account to her, the company asks to be subrogated to her rights against the minor, on the ground that, as she is insolvent, and as, in truth, the money she used for the necessities of the ward came from the company, it is only righ t that the ward should not be allowed again to get the money. It is inequitable that this minor shall twice get this money: once, through the hands of another, and now by a judgment. Minors are, it is true, favorites of the Courts, but, as it seems to me, even for these favorites, the Courts will not do such gross injustice. Judgment reversed. [562] Montgomery, Judge,'concurred, and referred to his opinion-in the case of the Southwestern Railroad Company vs. Chapman, guardian, on page 542.