Skinner v. Henderson

Scott, J., delivered the opinion of the Court. This was an action of assumpsit on the general counts brought by Skinner against Henderson, in which Skinner submitted to a non suit,, and after an unsuccessful motion to set it aside, has brought the cause to this Court. Henderson, it seems, by deed, leased to Skinner a right of preemption he possessed on the public lands, for the term of ninety-nine years, for a large sum of money. The object of the lease was to evade the act of Congress prohibiting the sale of a preemption right until the issuance o^ a patent therefor. Understanding afterwards that such an agreement was not valid, the parties mutually consented that the lease should be burned, which was accordingly done, and the contract was considered rescinded by them. In the meantime, Skinner had made large payments to Henderson under the lease, and this suit was brought to recover them. On the trial, a copy of the lease was offered in evidence, and several receipts for money under the contract by Henderson: all these papers [207] were excluded by the Court, and this action of the Court is the error complained of. The rule in respect of money paid on illegal contracts appears in general to be, that money so advanced may be recovered in an action for money had and received, while the contract remains executory, because a violation qf the law is thereby prevented ; but if the contract be executed, it cannot be recovered back. When both parties are in puri delicto, melipr est conditio de fendenis, not because he is favored in law, but because the plaintiff must draw his justice from pure sources. B. N. P., 132. Doug. 470. Here the contract was not executed, the parties availed themselves of •the locus penitentise, and rescinded their bargain, consequently the money paid under it may be recovered. It may be remarked in regard to the refusal to admit secondary evidence of the deed, that it is by no means a matter of course to permit a party to give secondary evidence of the contents of an instrument, although the fact of its destruction is' clearly proved. A party who will voluntarily, and without cause, deprive himself of original evidence, will not be permitted to use the secondary. The deed being destroyed with mutual consent of parties, and with a view to rescind an unexecuted contract which they learned was illegal, the authorities will amply sustain under such circumstances the introduction of secondary evidence. Riggs vs. Taplor, 9 Whea. 483. The evidence of the execution of the deed was sufficient to have permitted it to go to the jury. The bill of exceptions stated, that “ all of which opinions of the Court in excluding from the jury the said receipts and the copy of the bond were excepted to on the trial; ” and it is contended that it does not sufficiently appear from such language that the exceptions were taken at the time the opinions were given. We are of opinion that the bill of exceptions is sufficiently explicit to show that the exceptions were taken at the proper time. The other Judges concurring, the judgment will be reversed, and the cause remanded.