Gotwalt v. Neal

Bartol, J., delivered the opinion of this Court. We concur with the judge of the Superior Court in the opinion that the allegation of duress, in procuring the deed and warrant of attorney in this case, is not supported by the proof. Whatever may be said of the transactions at the office of Mr. Matthews, which took place on the 4th of December, 1860, when the first deed was executed, there is no evidence of any duress being used on the following day to induce the complainant to execute the deed of that date. So far as appears from the evidence, the execution of that deed was a voluntary act on the part of Gotwalt, unconstrained by any duress, compulsion or menace, and bo, far as the ⁴⁴⁵ case rests upon that averment in the bill, we are of opinion relief was properly refused by the Court below.

It appears from the evidence, that Gotwalt, who was the clerk and salesman of Neal, was accused of having embezzled large sums of money of his employer, and without meaning to pronounce a judgment upon his guilt, ( which we are not now called on to do,) we are compelled to say, from the evidence in the record, the appellee had strong grounds to believe the charge to be true, and his object in demanding the deed was to obtain indemnity or reparation for his loss, which Gotwalt appears to have consented to give without other motive than a desire to make reparation for the wrong, combined with the hope of escaping a criminal prosecution. It is impossible to doubt, from the evidence in the record, that this last was the chief consideration moving Gotwalt to the execution of the deed. The inducement being a promise by Neal not to prosecute, Neal, in his answer, says: “that he did consent to abstain' from prosecuting the said Gotwalt for defrauding him and for the embezzlement of the money, in consideration of the said Gotwalt reimbursing him, as far as practicable, for the loss sustained at said Gotwalt’s hands.” And Matthews says, in his testimony, “he (Gotwalt) said he did not want to be prosecuted, and I told him that I had already assured him that Mr. Neal had no wish to prosecute him, that he felt nothing could be gained by it,” &c. We think it very clear, from an examination of the whole case, that the first deed was executed “for the purpose of compounding a threatened prosecution for embezzlement;” and that the same purpose continued and induced the execution of the papers on the 5th of December.

The appellants have contended that for this reason they are void, and ought to be cancelled, and the question is whether Gotwalt is entitled, on this ground, to have the relief prayed. This question will be considered without regard to the frame of the bill, no exceptions having been taken for want of sufficient ⁴⁴⁶ averments; and besides, if it should appear from the proof that the complainants are entitled to relief on this ground, the case might be remanded and the necessary amendments to the pleadings be allowed. In considering this question we put Mrs. Gotwalt out of view, because not being a party to the deed, she has no interest in the controversy; her rights, whatever they may be, are unaffected by the deed, and we, therefore, exclude from our consideration, as inadmissible, all the evidence bearing on that part of the case. The law is well settled that contracts made in violation of law cannot be enforced.

See Wildey vs. Collier & Wife, 7 Md. Rep., 273 , and. authorities cited in the opinion of the Court. When, however, such contracts have been executed by the payment of the money thereon, or the conveyance and delivery of property, and application is made to a ■ Court of Equity, by one of the parties to the contract, to grant him relief by ordering the money to be repaid or the property to be returned, the rule which seems to be best established, both by the weight of authority and reason, is to refuse to grant relief and to leave the parties where they have placed themselves. In such case the maxim applies, in pa/ri delicto fotdor est conddtdo possidendis. In Collins vs. Blantern, 2 Wilson, 341 , cited by this Court in Wildey vs. Collier, a bond given for the compounding of a felony was avoided by plea setting forth the illegality of the consideration for which it was given; it was held that where money has, in fact, been paid upon such 'consideration, it cannot be recovered back again, because m pari do-lido, dec.

Ld. Ch. J. Wilmot said: “Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again; — you shall not have a right of action when you come into a Court of Justice in this unclean manner to recover it back.” ⁴⁴⁷ The same doctrine is supported by many authorities; these are cited by Kent in his Commentaries,vol. 2, 467, notes, and in Story’s Equity, vol. 1, sec. 298, notes. After a careful examination of the cases on this subject, we are satisfied that the great current of authority supports the doctrine laid down in Collins vs. Blantern, although it may not be possible to reconcile all the cases.

In Neville vs. Wilkinson, 1 Bro. Ch. R., 547., Lord