DAVID JACKSON vs. MARGARET HULSE, Et Al.
1. A promissory note given by a married woman is at common law absolutely void, and so also is a judgment confessed by her.
2. A joint judgment which is void as to one of the parties is void as to all.
Equity.
No. 4083.
Decided October 15, 1888.
The Chief Justice and Justices James and Merrick sitting.
Appeal from a decree dismissing a bill filed to enforce a judgment.
The Facts are sufficiently stated in the opinion.
Messrs. W. D. Davidge and Fred. W. Jones, for plaintiff:
The judgment is conclusive until set aside in the Court which rendered it. Coit vs. Haven, 30 Conn., 190; Cook vs Darling, 18 Pick., 393; Granger vs. Clark, 22 Maine, 128; 2d Am. Leading Cases (ed. 1857), 812 and cases there cited.
At most, the judgment was only voidable as to the minor, and was valid as to the adult defendants. Crane vs. French, 1 Wendell, 311; N. Y. Bank Appeal, 36 Penn. St., 458; Hall vs. Lanning, 91 U. S. R., 160.
Hall vs. Williams, 6 Pick., 232, that “a judgment being entire, if a nullity with respect to one, is also to the whole” has been not only modified but overruled in many subsequent cases, which decide that the judgment is only voidable as to the defendant, who was either not summoned, or was an infant, or who was otherwise not properly before the Court. Stockwell vs. McCracken, 109 Mass., 84; Hendrick vs. Whittemore, 105 Mass., 23; Henderson vs. Stamford, 105 Mass., 504.
The cases are numerous where judgment has been vacated as to one party but held good as against the other. *549Motteux vs. Staubin, 2 W. Black, 1133; Ashlin vs. Langton, 4 Moore & Scott, 719; Gerard vs. Basse, 1 Dallas, 119; Silvers vs. Reynold, 2 Harr. (N. J.), 27 5; Crane vs. French, 1 Wendell, 311; Douglass vs. Massie, 16 Ohio, 271; Newberg vs. Munshower, 29 Ohio St., 687; Harvey vs. Drew, 82 Ill., 606.
Messrs. James M. Johnston and Calderon Carlisle, for defendants:
The note and power of attorney, and .the judgment obtained thereon are void because founded on an illegal consideration as to all the defendants. , “ Ex maleficio non oritur contractus.” “ Ex turpi causa non oritur actio.” “ Ex dolo malo non oritur actio.”
The note was given in place of a forged note to “ stifle a prosecution ” for forgery against H. D. Smith. Keir vs. Leeman, 6 Q. B., 308-9 Q. B., 394.
The power of attorney was obtained on the same pretext, and for the same consideration, and effectually prevented exposure of the illegality in the suit at law. Thomas vs. Lloyd, 9 Md., 536, note.
The judgment was obtained solely by virtue of the power of attorney, none of the defendants being served with process; and if this could make an illegal contract enforcible, the law would be made to lend its forms to defeat its own substance. Ibid.
The real object and effect of the agreement is what mákes it illegal — and it matters not that there is no express agreement to compound a felony, if the Court can clearly see from the circumstances and situation of the parties what were the real object and effect of the agreement. Williams vs. Bayley, L. R., 1 H. L., 200.
It was contended in the lower court that Jackson was' not estopped from enforcing his judgment because he had never actually contracted to withhold or abandon the criminal prosecution, in consideration of receiving a new *550note signed by defendants. But this is not necessary, for all the defendants signed the note and warrant of attorney, with the conviction on their part that these would, in fact, prevent the criminal prosecution. It was the pressure of the situation and of this conviction which alone led them to execute the new note and the warrant of attorney. Williams vs. Bayley, L. R., 1 H. L., 200.
Moreover, the complainant, Jackson, does not go upon the stand to deny that he withheld criminal prosecution in consideration of this note and power of attorney. He could, from his personal knowdedge, have explained or contradicted the testimony of defendants, and “ on a trial, either in civil or criminal cases, the omitting to produce evidence in elucidation, which is in the power of the party or within his peculiar knowdedge, shall be holden to turn every doubt against him.” 1 Stark Ev., 34; 3 Phillips (C. & H. notes), 456, 473; Ibid., Text, Vol. I, 436 ; Roe vs. Plarvey, 4 Burr.. 2484-7; R. vs. Burdett, 4 B. & A., 162; Clifton vs. U. S., 4 How., 242; Clements vs. Moore, 6 Wallace, 315.
The maxim, omnia prsesumimtur contra proferentem, seems to have been made to meet David Jackson’s case, which he puts forward in a court of equity, in all its legal nakedness, without even an attempt to clothe it in a single explanation. The burden of proof was thrown on complainant by defendant’s testimony which made out, prima facie, the illegality of the very foundation of his whole case. The defendants not only set up their defenses in their answers, and supported them by proof, but invoked the aid of this court of conscience by a direct attack on the judgment by means of the cross-bill.
A court of equity would rescind an agreement to stifle a criminal prosecution and a fortiori will it refuse its aid in enforcing it. Fanning vs. Denham, 5 John. Ch., 122; West vs. Beams, 3 Har. & John., 571; Nelson vs. Armstrong, 5 Grattan, 354; White vs. Armstrong, Ibid., 649; Gough vs. Pratt, Adm’r, 9 Md., 536; Thomas, Trustee of Loyd, vs. *551Watson, Ibid., note; Wister vs. McManes, 4 P. F. Smith, 326 ; Swayne vs. Lynn, 17 P. F. Smith, 441; Lucas vs. Waul, 12 Sm. and M., 157.
The Court will refuse to lend its aid to enforce this agreement on grounds of public policy, and not for the sake of the defendants. Holman vs. Johnson, 1 Cowp., 343.
“ The good of the public requires contracts of this character to be put an end to; otherwise it would be an unequivocal declaration of law that the party shall have all the benefit of the contract, for the law ‘ approves what it refuses to rescind,’ a fortiori would it amount to an approval should a court of equity lend its aid to enforce such contract.” Adams vs. Rowan, 8 Sm. & M., 630; 2 Swanst. R., 165 (Note 5); 3 Yerger, 124.
This illegal agreement, void in itself, was obtained from the defendants by such pressure as to .warrant a court of equity in relieving them against it, and a fortiori will a court of equity refuse to lend its aid to enforce such an agreement. Williams vs. Bayley, L. R. 1 H. L., 200.
The note and warrant of attorney are clearly void as to Amelia M. Smith, and the judgment founded upon them is equally void as to her.
She was an infant when the note and power of attorney were signed, and when the judgment was rendered. Rec., p. 23. The power of attorney cut off all chance of pleading-infancy in the suit at law, and on that power of attorney the validity of the judgment wholly depends.
“ The only contract binding- on an infant is the implied contract for necessaries; the only act wThich he is under a legal incapacity to perform is the appointment of an attorney.” 1 Sm. L. C., 300.
“A warrant of attorney is of the latter class (void) which the Court cannot make good though .there appear to be circumstances of fraud on the part of the infant.” Sanderson vs. Marr, 1 Hy. Bl., 75; See 2 Kent, 250-2, 253; Tucker *552vs. Moreland, 10 Peters, 59, 60, 68; Starbird vs. Moore, 21 Vt., 533.
She was a feme covert at the time the note and power of attorney were signed, and when the judgment was rendered.
The note could not be enforced against her at law; she was not competent to appoint an attorney, and the judgment entered against her was a nullity. Griffith vs. Clark, 18 Md., 463; Morse vs. Tappan, 3 Gray, 411; Watkyns vs. Abrahams, 14 How. Pr., 191-2; Farthorne vs. Blagmore, 6 M. & S., 73; Brittin vs. Wilder, 6 Hill, 242, and case cited.
The objection that this ground of impeachment might have been pleaded or relied upon in the suit at law is not applicable to the case of a defendant feme covert. Griffith vs. Clark, 18 Md., 463.
But in addition to this the liability of all the defendants in this transaction, if any, is joint, and the judgment rendered against them is an entirety, and if void as to one, is void as to all.
The note, made and endorsed before delivery as one transaction, all the defendants participating in the consideration, is a joint note. Chitty on Contr., 101-2, and cases cited; Rey vs. Simpson, 22 How., 341, and cases cited in argument; Good vs. Martin, 95 U. S., 90.
The power of attorney is clearly joint from its tenor and effect, and authorizes only the confession of a joint judgment against all the defendants. See Warrant of Attorney (Rec., p. 25). Ould vs. Sansom, 3 Taunton, 261; Gee vs. Lane, 15 East, 592; Bank vs. St. John, 5 Hill, 497.
The judgment is a joint judgment and an entirety. This is evident not only from the fact that under the power of attorney the Court had no authority to enter any other than a joint judgment, but from the further fact that in its essence and nature and form the judgment is joint, and not joint and several. (See authorities next infra.) Hence, if void as to one, the judgment is void as to all. Freeman on *553Judgments, secs. 117,137; Shuford vs. Cain, 1 Abbott, U. S.. 310; Hall vs. Williams et al., 6 Pick., 246; Wright vs. Andrews, 130 Mass., 150; Richards vs. Mallon, 12 Johns. R., 434; Holbrook vs. Maning, 5 Wend., 162; Ins. Co. vs. Clover, 36 Mo., 392; Cruikshank vs. Gardner, 2 Hill, 333; Starbird et al vs. Moore, 21 Vermont, 533; Gardiner vs. Plardey, 12 G. & J., 384; Hanley vs. Donoghue, 59 Md., 244; see authorities cited by counsel (pages 241-242) S. C.; 116 U. S., 1, and cases cited.
The jurisdiction of the Court, to render the judgment at law, depended wholly on the validity of the power of attorney. None of the defendants were ever served with process. The power of attorney being void, the Court was without jurisdiction, and the judgmeut is a mere nullity and may be attacked collaterally. Thompson vs. Tolmie, 2 Pet., 163; Cooper vs. Reynolds, 10 Wall., 316; Griffith vs. Clark, 18 Md., 463; Caldwell vs. Waters, 6 Har., 81; Swayne vs. Lynn, 17 P. F. Smith, 441.
But this judgment is also directly attacked by the cross-bill, and this Court is asked to declare it null and void, and so remove the cloud on defendant’s title. Mattingly vs. Nye, 8 Wall., 373; 2 W. & T. Ld. Ca., 1375.
All pretense of right which complainant has grows out of an illegal contract. The note was given for an illegal consideration; the power of attorney was given for the same consideration, and had the effect of concealing from the Court of law the illegality of the original transaction; the judgment depending as it does for validity on that of the power of attorney, must fall with it, and cannot conceal from this Court the vice of illegality which lies at the root of the whole matter.
But independent of the question of illegality, the joint note and power of attorney were executed by Amelia M. Smith, when an infant and a feme covert, and those and the joint judgment are clearly void as'to her; and the judgment being an entirety, must be void as to all.
*554The questions of illegality, infancy and coverture were not passed upon in the proceeding at law, and these defendants have never had their day in Court.
It is submitted that the decree below should be affirmed.