1. The convention of the State of Virginia passed, April 13,
1861, an ordinance entitled "An Ordinance to provide against the
sacrifice of property and to suspend proceedings in certain cases,"
whereby, if a debtor, against whom there was an execution in the
hands of an officer offered bond and security for the payment of
debt, interest, and costs, when the operation of the ordinance
should cease, his property should be restored to him. If he offered
no bond, the property was to be restored to him without lien,
unless it would bring its appraised value as of the date of Nov. 6,
1880. No executions were, after the date of the ordinance, to be
issued against residents except in favor of the state. The
convention passed, April 18, 1861, an ordinance of secession. A.,
against whom an execution was issued March 21 of that year, availed
himself of the provisions of the ordinance of April 13 by giving
the requisite bond and security. The judgment against him remaining
unpaid and the ordinance having ceased to operate, suit was brought
on the bond.
Held that the obligors are estopped from
setting up that, by reason of anything contained in the ordinance,
the bond is invalid.
2.
Home Insurance Co. v. City Council of Augusta,
93 U. S. 116, and
United States v.
Hodson, 10 Wall. 396, cited and approved.
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is a writ of error brought to reverse a judgment of the
Supreme Court of Appeals of the State of West Virginia.
The case, as disclosed in the record, may be sufficiently stated
for the purposes of this opinion, as follows:
Page 102 U. S. 416
On the 18th of April, 1861, a convention of the State of
Virginia passed an ordinance of secession, and on the 30th of that
month a law entitled "An Ordinance to provide against the sacrifice
of property and to suspend proceedings in certain cases." This
ordinance declared that thereafter no execution (except in favor of
the Commonwealth and against nonresidents) should be issued, and
that no sales should be made under deeds of trust or decrees
without the consent of the parties interested, until otherwise
provided by law, and that where executions were in the hands of the
officer, whether levied or not, if the debtors should offer bond
and security for the payment of the debt, interest, and costs, when
the operation of the ordinance should cease, the property should be
restored and the bond should be returned, as in the case of a
forthcoming bond, and should be a lien on the realty of the
obligors. If the debtor offered no bond, his property was to be
appraised by three freeholders, at its value on the 6th of
November, 1860, and unless the property would sell for the amount
of the valuation, it should be restored to the debtor without
lien.
The suit was brought in the Circuit Court of Jefferson County,
State of West Virginia, by Tearney and Wilson, executors of Colin
C. Porter. The declaration sets forth that the defendants, on the
first day of June, 1861, made their joint and several bond, whereby
they bound themselves to pay to the plaintiff the sum of $1,597.18
when thereunto requested, and that there was a condition affixed to
the bond, which was
"That whereas, on the twenty-fifth day of March, 1861, a writ of
fieri facias was issued from the clerk's office in the
name of Colin C. Porter against Benjamin F. Daniels, for $747.92,
with interest from the second day of January, 1860, until paid, and
$31.97 costs; if, therefore, the said B. F. Daniels should pay the
debt, interest, and costs, when the operation of the ordinance
before mentioned should cease, then the obligation to be void,
otherwise to be in full force."
It was averred that the operation of the ordinance had long
since ceased, and yet that the defendants, though often requested
so to do, had not paid the said sums of money or any part thereof,
whereby an action had accrued, &c.
Among other pleas, the defendants filed one in
haec
verba:
"For further plea to this action, the defendants say that
the
Page 102 U. S. 417
bond in the declaration mentioned was executed by Benjamin F.
Daniels, a citizen of the State of Illinois, as principal, and by
William B. Daniels and D. M. Daniels, as his securities, in
pursuance of the requirements and conditions of a statute passed in
violation of the Constitution of the United States, heretofore, to
wit, on the 30th of April, 1861, by the convention of the State of
Virginia, and that said statute was subsidiary to and in aid of and
in furtherance of the objects and policy of the ordinance of
secession passed theretofore by said convention, to-wit, on the ___
day of April, 1861, in violation of the Constitution of the United
States."
"And the defendants say that they rely on the fact that said
statute and ordinance were in violation of and repugnant to the
Constitution of the United States for their defense and plea in
this case, and that they are unconstitutional the defendants are
ready to verify."
The plaintiff demurred. The court sustained the demurrer, and
the defendants excepted. The parties thereupon waived a jury and
submitted the case to the court, and a judgment was entered in
favor of the plaintiff.
The defendants removed the case to the Supreme Court of Appeals
for review. That court affirmed the judgment, and this writ of
error was thereupon sued out.
The objection raised as to the jurisdiction of this Court is
untenable.
In
Home Insurance Co. v. City Council of Augusta,
93 U. S. 116, we
said:
"Where a judgment or decree is brought to this Court by a writ
of error to a state court for review, the case, to warrant the
exercise of jurisdiction on our part, must come within one of three
categories:"
"1. There must have been drawn in question the validity of a
treaty or statute of, or authority exercised under, the United
States; and the decision must have been against the claim which
either was relied upon to maintain."
"2. Or there must have been drawn in question a statute of, or
authority exercised under, a state, upon the ground of repugnance
to the Constitution or a law or treaty of the United States, and
the decision must have been in favor of the validity of the state
law or authority in question. "
Page 102 U. S. 418
"3. Or a right must have been claimed under the Constitution, or
a treaty, or law of, or by virtue of a commission held or authority
exercised under, the United States, and the decision must have been
against the right so claimed. Rev.Stat. 132, sec. 709;
Sevier v.
Haskell, 14 Wall. 15;
Weston v. City Council
of Charleston, 2 Pet. 449;
McGuire v. The
Commonwealth, 3 Wall. 385."
The plea is neither full nor technical, but it does aver the
invalidity of the statute under which the bond was taken, because
it was in violation of the Constitution of the United States and
was passed "in aid and furtherance of the objects and policy of the
ordinance of secession," and that the defendants
"rely on the fact that said statute and ordinance were in
violation of, and repugnant to, the Constitution of the United
States, for their defense and plea in this case."
This implies clearly that the defendants claimed, in addition to
what was averred, that the bond was void in every aspect and that
they had a right, by reason of the premises, to exemption from
liability under it. What is thus averred in a pleading is as
effectual as if it were expressed.
Haight v. Holley, 3
Wend. (N.Y.) 258.
It thus appears that there was drawn in question the authority
of the sheriff, exercised under a law of the state, in taking the
bond, and that the decision was in favor of the validity of that
authority, and that there was also a right of exemption from
liability, claimed under the Constitution of the United States, and
that the decision was against the right so claimed. These claims
give us jurisdiction. Whether they are well founded remains to be
considered. Jurisdiction is only "the right to hear and determine."
The result of its exercise is the judgment of the Court.
That the ordinance of secession was void is a proposition we
need not discuss. The affirmative has been settled by the
arbitrament of arms and the repeated adjudications of this Court.
Texas v.
White, 7 Wall. 700;
Hickman v.
Jones, 9 Wall. 197;
Dewing v. Perdicaries,
96 U. S. 193. It
was supplemented and complemented by the statute authorizing the
bond to be taken. The latter was one of a series of acts passed by
the secession convention, all looking to the conflict of arms which
was foreseen to be approaching. They were intended to prepare the
state for the struggle, and were means to that end.
Page 102 U. S. 419
The saving in the statute as to executions in favor of the
Commonwealth and against nonresidents was characteristic. It
obviously contemplated the confiscation of the property of the
latter as a war measure. We cannot doubt that the statute was
invalid by reason of the treasonable motive and purpose by which
its authors were animated in passing it. The provision that no
executions should issue, and that no sales should be made under
decrees or deeds of trust without the consent of the parties
interested "until otherwise provided by law" was clearly in
conflict with the contract clause of the national Constitution.
Bronson v.
Kinzie, 1 How. 311;
McCracken
v. Hayward, 2 How. 608;
Edwards v.
Kearzey, 96 U. S. 595.
The circumstances which surrounded the convention and controlled
its action are a part of the history of the times, and we are bound
to take judicial notice of them.
Brown v. Piper,
91 U. S. 37.
We have already pointed out the infirmities of the statute. One
of them is expressly embodied in the bond. The condition is that
the obligors shall pay when the statute under which it was taken
"ceases." That is, that payment was to be made at the time of its
cessation, and not before. In the meantime, the statute was to
operate as a stay law, and the condition of the bond was framed
accordingly. This, as we have shown, was directly repugnant to the
constitutional provision which forbids the impairment of contracts
by state laws. The bond, as a statutory instrument, cannot have
more validity than the statute which prescribed it as the means of
giving effect to the statute in the way it was intended to operate.
To hold the bond valid as a statutory bond and the statute void
would be an inversion of reason. Viewed in this light, it is void
for exactly the same reasons that the statute is void. They rest on
the same basis, and must stand or fall together. The creditor was
not to be consulted. His assent was not required. So far as he was
concerned, the sheriff could proceed
in invitum. The
option to give the bond or not was with the debtor. The presence or
absence of the creditor and his assent or dissent were alike
immaterial. He was powerless in any event to control the
result.
The cases are numerous in which it has been held that
Page 102 U. S. 420
where a bond contains conditions some of which are legal and
some illegal, and they are severable and separable, the former may
be enforced and the latter disregarded.
United
States v. Hodson, 10 Wall. 395. But this bond does
not belong to that class. The condition is a unit, and indivisible.
There are no separate elements into which it can be resolved. It
must be considered as an entirety, and can be viewed in no other
light. As a statutory bond, therefore, the instrument is clearly
void. Whether it is void also as a voluntary bond is a point upon
which the opinions of all the members of the Court are not entirely
in accord. We pass from the subject without further remark because,
irrespective of that question, there is a view decisive of the case
in regard to which we are unanimous and our minds are free from
doubt.
Conceding the bond to have been wholly void in both aspects, it
does not by any means follow that it could not thereafter under any
circumstances be enforced as between the parties, or that there is
such error in the judgment that it must necessarily be
reversed.
A corporation is liable for negligent and malicious torts,
including libel, assault and battery, malicious prosecution, and
false imprisonment. In such cases, the plea of
ultra vires
is unavailing. The corporation is estopped from setting up such a
defense.
National Bank v. Graham, 100 U.
S. 699.
The same result is produced in like manner in many instances
where a corporation, having enjoyed the fruits of a contract fairly
made, denies, when called to account, the existence of the
corporate power to make it.
Railway Company v. McCarthy,
96 U. S. 258.
The principle of estoppel thus applied has its foundation in a
wise and salutary policy. It is a means of repose. It promotes fair
dealing. It cannot be made an instrument of wrong or oppression,
and it often gives triumph to right and justice where nothing else
known to our jurisprudence can, by its operation, secure those
ends. Like the statute of limitations, it is a conservator, and
without it society could not well go on.
If parties are
in pari delicto, the law will help
neither, but leaves them as it finds them. But if two persons are
in delicto, but one less so than the other, the former may
in many cases
Page 102 U. S. 421
maintain an action for his benefit against the latter.
White
v. Franklin Bank, 22 Pick. (Mass.) 181.
It is not necessary here to consider the extent and limitations
of the rule. They are fully examined in the authority referred to.
In the case in hand, the obligee must be deemed wholly innocent,
because the contrary is not alleged and it does not appear.
Quod non apparet, non est. De non apparentibus et non
existentibus, eadem est ratio.
"If the contract be executed, however -- that is, if the wrong
be already done -- the illegality of the consideration does not
confer on the party guilty of the wrong the right to renounce the
contract, for the general rule is that no man can take advantage of
his own wrong, and the innocent party therefore is alone entitled
to such a privilege."
1 Story, Contr., sec. 610;
Taylor v. Weld, 5 Mass.
108.
It is well settled as a general proposition, subject to certain
exceptions not necessary to be here noted, that where a party has
availed himself for his benefit of an unconstitutional law, he
cannot, in a subsequent litigation with others not in that
position, aver its unconstitutionality as a defense, although such
unconstitutionality may have been pronounced by a competent
judicial tribunal in another suit. In such cases, the principle of
estoppel applies with full force and conclusive effect.
Ferguson v. Landram, 5 Bush (Ky.), 230.
See Ferguson
v. Landram, 1
id. 548;
Van Hook v. Whitlock,
26 Wend. (N.Y.) 43;
Lee v. Tillotson, 24
id. 337;
The People v. Murray, 5 Hill (N.Y.), 468;
City of
Burlington v. Gilbert, 31 Ia. 356;
B.C.R. & M.R.R. Co.
v. Stewart, 39
id. 267.
In the case first cited, an injunction was applied for to
prevent the collection of a tax authorized by an act of the
legislature passed during the late civil war to enable the people
of a county to raise volunteers and thus avoid a draft for
soldiers, and that object had been accomplished. In disposing of
the case, the court well asked,
"Upon what principle of exalted equity shall a man be permitted
to receive a valuable consideration through a statute, procured by
his own consent or subsequently sanctioned by him, or from which he
derived an interest and consideration, and then keep the
consideration and repudiate the statute? "
Page 102 U. S. 422
In
United States v. Hodson, supra, this Court said:
"When a bond is voluntarily entered into and the principal
enjoys the benefits it was intended to secure, and a breach occurs,
it is then too late to raise the question of its validity. The
parties are estopped from availing themselves of such a
defense."
Not to apply the principle of estoppel to the bond in this case
would, it seems to us, involve a mockery in judicial administration
and a violation of the plainest principles of reason and
justice.
Judgment affirmed.
NOTE -- Another case between the same parties was argued at the
same time as was the preceding case. MR. JUSTICE SWAYNE remarked,
that there were no material points of difference between them, and
that the opinion in the first case was decisive of the second.
Judgment affirmed.