made with the inhabi hostile states. buy or sell land made with the inhabitants of hostile Contracts states appear to be void, unless entered into with the king's licence. For except by royal licence all com- tants of mercial intercourse between the king's subjects and the inhabitants of an enemy's country is prohibited (k). And this rule applies, not only to aliens, but to all persons, even to British subjects, residing in a hostile. state, who are adherent to the king's enemies by carrying on business there or otherwise (). maintenance of entry or recover land. Sales of land are also void if they involve the offence Sales inof maintenance or champerty, or infringe the principle volving of legal policy on which those offences are founded, and or champerty. which is intended to prevent the multiplication or stirring up of lawsuits (m). Here it may be mentioned Sale of a right that at common law, if a man were disseised of his action to freehold or wrongfully ejected from his leasehold land, he could not afterwards sell or dispose of his interest therein; for he was then divested of his estate (n), and had only a right of entry on the land or a right of action to recover it according to the circumstances of the case (0), and neither of these rights was assignable (p). By the Statute of Bracery (2) the sale was (k) See Esposito v. Bowden, 7 E. & B. 763, 779; Janson v. Driefontein, &c., 1902, A. C. 484, 489, 502, 509; next Chapter, § 1, under the head of Aliens. (1) M'Connell v. Hector, 3 B. & P. 113; Roberts v. Hardy, 3 M. & S. 533; Albrecht v. Sussmann, 2 V. & B. 323; Janson v. Driefontein, 1902, A. C. 484, 505, 506. (m) Reynell v. Sprye, 1 De G. M. & G. 660, 677, 686; Sprye v. Porter, 7 E. & B. 58; Hutley v. Hutley, L. R. 8 Q. B. 112; James v. Kerr, 40 Ch. D. 449, 456; Rees v. De Bernardy, 1896, 2 Ch. 437, 446; Lampet's case, 10 Rep. 46b, 48a; Co. Litt. 214a, 265a, n. (1); Stanley v. Jones, 7 Bing. 369, 377. (n) Litt. §§ 450, 451, 455; Co. Litt. 214a, 266a, 267a, 345, 369a, 374b; Goodright v. Forrester, 8 (0) See 3 Black. Comm. 174 sq.; (p) Not even, before the Wills Act, by will; above, n. (o); 2 Prest. Abst. 419, 420. Rights of entry are now devisable under the Wills Act, stat. 7 Will. IV. and 1 Vict. c. 26, s. 3; and see above, p. 747. The right of a copyholder wrongfully ejected was equally unassignable; Kite and Queinton's case, 4 Rep. 25, 26. (g) Stat. 32 Hen. VIII. c. 9, s. 2, now repealed by stat. 60 & 61 Vict. c. 65, s. 11. Sales made void or OF ILLEGALITY IN THE CONTRACT. Again, some contracts are made void or are rendered unenforceable by statute, though not prohibited. Of able, but not this kind are contracts made by way of gaming or unenforce prohibited. Contract to sell land for the use of a charity. Assurance. wagering (h); and if any contract for the sale of land be so made, it will be void accordingly (i). So we have seen that contracts for the sale of land are not enforceable unless put into writing and signed by the party to be charged or his agent (k). And as every assurance (1) of land to or for the benefit of any charitable uses is void unless made in accordance with the conditions imposed by the Mortmain and Charitable Uses Act, 1888 (m), it appears that any contract to sell land to be assured to such uses is void if not made in compliance with such conditions (). For a sale of land is in effect an assurance of the equitable estate therein (o), and if the Act avoids, as it does, a conveyance not in accordance therewith made on a completed sale of land (p), it must equally annul the assurance of the land effected in equity by a contract for sale thereof. And if the assurance so made be void, the promise to convey the land, which is the cause of such assurance, must also be void (q); if this obligation were enforceable, the Act would be easily evaded (). The promise to pay the (i) Consider Rourke v. Short, 5 E. & B. 904; Re Gieve, 1899, 1 Q. B. 794. (k) Above, pp. 3-9. (Any transaction which operates to transfer the property in lands or goods and any document evidencing such a transaction is an assurance; see Shep. Touch. 1; 2 Black. Comm. 294; Re Roberts, 36 Ch. D. 196; Re Ray, 1896, 1 Ch. 468, 476. (m) Stat. 51 & 52 Vict. c. 42, (n) See A.-G. v. Day, 1 Ves.sen. (p) Above, p. 397. (9) See A.-G. v. Gardner, 2 De G. & S. 102, 118. (r) If this were not so, the charity would be in the same position as a lessee under a lease made by an unsealed writing for a term exceeding three years; as to which, see Walsh v. Lonsdale, 21 Ch. D. 9; Furness v. Bond, 4 Times L. R. 457; Lowther v. Heaver, 41 Ch. D. 248, 264; Crump v. Temple, 7 Times L. R. 120; Foster v. Reeves, 1892, 2 Q. B. 255; Manchester Brewery Co. v. Coombs, 1901, 2 Ch. 608; Zimbler v. Abrahams, 1903, 1 K. B. 577. But it is impossible to suppose that the Act can be so evaded; see Wickham v. Bath, L. R. 1 Eq. 17. price must therefore be equally unenforceable; for if the contract were not under seal, there would be no consideration for this promise. And if the contract were made by deed, yet on an executory contract of sale, the obligations to convey the property and to pay the price are, as a rule, dependent on each other, the liability on either of them being conditional on the performance of the other, so that if the one be void the other must be discharged (s). Illegal contracts are altogether void; no proceedings Illegal can be maintained thereon at law or in equity; and if contracts are either party sue the other in respect thereof, the latter void. thereunder recovered is at liberty to plead the illegality of the agreement as a defence (t). It follows that if an illegal contract be Property wholly or partly executed, no action can, as a rule, be transferred maintained to recover any money paid or property cannot be transferred thereunder (t). Thus if land be sold for an back. illegal purpose and the contract be completed, the vendor cannot afterwards recover the land, nor the purchaser the price; if the purchaser pay the whole or part of the price to the vendor before the land be conveyed to him, the vendor may plead the illegality of the agreement as a bar to any action by the purchaser either to compel conveyance or recover the money paid (t); and if the vendor convey the land without payment, he cannot get it back, or enforce payment of the price, either directly, or indirectly by suing upon any bond, covenant or note given to secure such payment (u). Here it may Sale for be mentioned that, where land is purchased in order to (8) Above, p. 726. (t) See Collins v. Blantern, 2 Wils. 341; Holman v. Johnson, 1 Cowp. 341; cases cited above, p. 770, n. (k); Taylor v. Chester, L. R. 4 Q. B. 309; Ayerst v. Jenkins, L. R. 16 Eq. 275; Herman v. Jeuchner, 15 Q. B. D. 561; W.-II. Kearley v. Thomson, 24 Q. B. D. (u) Fisher v. Bridges, 3 E. & 8 illegal purposes known to both parties. only. be used for an illegal purpose, the contract is only void if such purpose be known to both parties to the sale (x). To one party If one contract to buy land, intending to use it for an illegal purpose but without disclosing this intention to the vendor, the purchaser cannot in this case allege his own unlawful intent in order to avoid the contract (y); and the contract is enforceable by the vendor. And it seems that this is equally the case, although the vendor may suspect that the purchaser intends to put the property to an unlawful use, so long as he is not actually aware of any definite intention so to use it (). If the purchaser's unlawful purpose were at first unknown to the vendor, but the vendor afterwards became aware of it before completion, the contract is in effect voidable at the vendor's option; he may then plead the purchaser's illegal purpose as a bar to the enforcement of the contract (a): but the purchaser himself cannot do so. Exceptions There are certain exceptions to the rule that money that property paid or property delivered under an unlawful agree to the rule parted with under an illegal contract cannot be recovered. ment cannot be recovered back. Thus if one who has paid money or delivered property under such an agreement repudiate his unlawful purpose before anything else be done, he may recover his property back; unless perhaps the object of the agreement were actually criminal or immoral (b). But this exception does not apply if the illegal purpose has been partly performed (c). And where one has made an unlawful bargain, which would (except for its illegality) be voidable by him, as (x) See cases cited above, pp. 770, n. (k), 771. (y) Doe d. Roberts v. Roberts, 2 B. & A. 367. (z) See Lloyd v. Johnson, 1 B. & P. 340; Pearce v. Brooks, L. R. 1 Ex. 213. (a) Cowan v. Milbourn, L. R. 2 Ex. 230. (b) Tappenden v. Randall, 2 B. & P. 467; Palyart v. Leckie, 6 M. & S. 290; Taylor v. Bowers, 1 Q. B. D. 291. (c) Kearley v. Thomson, 24 Q. B. D. 742. if he were induced to enter into it by fraud, duress or undue influence, he may recover back any property transferred thereunder (d). Another exception to the rule is where it is sought to recover money paid under a contract made void by some statute passed for the protection of a class of persons, of which the plaintiff is one (e). And money or property deposited with a stakeholder or other agent in order to be applied under an illegal contract may be recovered back, if notice not to part with it be given before it be actually delivered over in pursuance of the agreement (ƒ). transferred Where a contract is not prohibited by law, but is Property merely made void (g), any money paid or property under void transferred thereunder is in general equally irrecover- contracts. able as in the case of a prohibited contract. For the rule is that money paid or property conveyed away with a full knowledge of the facts, though under a mistake of law, cannot be recovered back (h). And where an agreement is made which is not prohibited, but is binding in honour only and is void at law, the one party has in general no legal remedy if the other refuse to perform his part of the agreement after having received what was due to him thereunder (i). Thus contracts which are illegal merely because they are (d) Osborne v. Williams, 18 Ves. 379; Reynell v. Sprye, 1 De G. M. & G. 660, 679; Atkinson v. Denby, 6 H. & N. 778, 7 H. & N. 934; and see Harse v. Pearl, &c. Co., 1904, 1 K. B. 558, 563, 564; Pollock on Contract, 384-386, 7th ed. (e) Barclay v. Pearson, 1893, 2 Ch. 154, 165-168. (f) Hastelow v. Jackson, 8 B. & C. 221; Bone v. Ekless, 5 H. & N. 925; Barclay v. Pearson, 1893, 2 Ch. 154, 168-170; Strachan v. Universal Stock Exchange, 1895, 2 Q. B. 329, 1896, A. C. 166; Shoolbred v. Roberts, 1899, 2 Q. B. 560, 1900, 2 Q. B. 497, (g) Above, p. 776. (h) Bilbie v. Lumley, 2 East, 469; Brisbane v. Dacres, 5 Taunt. 143; Rogers v. Ingham, 3 Ch. D. 351; Kearley v. Thomson, 24 Q. B. D. 742, 745. There is an exception where money is paid under a mistake of law to an officer of the Court; Expte. Simmonds, 16 Q. B. D. 308; Re Opera, Ld., 1891, 2 Ch. 154. (i) Fisher v. Liverpool Marine Insce. Co., L. R. 8 Q. B. 469, 9 Q. B. 418. |