Bagg v. Jerome

Manning J.: The first section of the act provides that no person shall be allowed to manufacture or sell any spirituous or intoxicating-liquors. The second section declares all payments for sueh liquors shall be considered as having been received without consideration,and against law and equity; and that any money or thing paid therefor may be recovered back by the person paying the same, his wife, or any of his children; and [157] makes null and void, excej)t as to bona fide purchasers without notice, all sales, transfers, grants, releases, quit-claims, surrenders, mortgages, &o., the consideration whereof, in whole or in part, shall have been the sale or agreement to sell such liquors. At common law all contracts in violation of law are void. The law, in such cases, will not aid either party, but leaves them to reap the reward of their own folly. Hence, if the contract is executory it will not enforce it, or give damages for a non-performance; and if executed, it will not undo what the parties themselves have done, by divesting the title that has j>assed. By the chattel mortgage and delivery the title to the property passed from Bayless to the defendants. It is good against Bayless; and also against his creditors, if not made for the purpose of defrauding them. The statute provides for a recovery by the vendee, his wife, -or any of his children, of the money or other thing given by him in consideration of the liquors, but it makes no provision whatever in behalf of the -vendor, or his creditors, but leaves the seller of the liquors as at common law. See Breck v. Adams, 3 Gray, 569. The only other question in the case was one of fraud, to be found by the jury. All conveyances made to hinder, delay, on defraud creditors, are void as to them, both at common law and under the statute. The statute, however, has changed the common law in one very important particular, and that is, in declaring the question of fraudulent intent in all such cases, to be a question' of fact, and not of law.— Comp. B. 948 §3201. Before the statute the question of fraudulent intent — the facts being found by a jury — was one of law to be pronounced by the court. It is now, under the statute, a question of fact, to be found, like other facts, by the .jury. Whether this change be a salutary one or not, is not for us to say; it is sufficient that it is made the law of the ■land by statute. When the instrument, on its face, is one •the law will not sanction against creditors, it is the duty of [158] the court to pronounce it fraudulent as to them; but the court can not look to matters dehors the instrument for that purpose. In such case the fraud, if any, does not consist in the instrument itself, but in the abuse of it; or, in other words, in a party’s seeking to use it for purposes at variance with what the instrument declares on its face. For the court to treat such extraneous matters, when found by a jury, a» a part of the instrument itself, or to instruct the jury that the conveyance is void, if they should find them, would, it seems to us, be nothing more or less than an ingenious device to evade or get around the statute. — See Jackson v. Dean, 1 Doug. Mich. 519; Oliver v. Eaton, ante p. 108. The mortgage is an ordinary chattel mortgage with two exceptions. It is given to the defendants in error instead of the creditors of Bayless, who are mentioned, with the amount Bayless was owing each one of them, in the recital. And it contains a provision that the defendants in error “ shall not be liable in the premises for anything except their own personal default and neglect.” These were matters proper for the jury to take into consideration, with the other evidence in the case, but we see nothing in them rendering the mortgage fraudulent. We are inclined to the opinion that the last clause does not lessen the liability of the defendants in error, as trustees. The judgment must be affirmed with costs. The other Justices concurred.