
    The Inhabitants of Worcester versus William Eaton.
    The mcompetency of a witness to defeat, by his testimony, an instrument to which he is a party, is confined to parties to negotiable instruments.
    A conveyance of land, made in consideration of a composition of felony, cannot be avoided by the grantor.
    [The grantor in a deed of lands is a competent witness to impeach it, notwithstanding a subsequent deed of the same premises has been made by the grantor to a third party, in consideration of maintenance and support to be provided for the grantor during life.]
    This was a writ of entry sur disseisin, in which the said inhabitants demand against the said Eaton certain described lands and rooms in a dwelling-house, &c., assigned to Betsey Flagg, widow of David F., for her dower, and by her conveyed to the demandants, who allege a * seisin of the freehold there- [ * 369 J of for her life, until disseised by the tenants.
    The cause was tried, April term, 1813, upon the general issue of non disseisivit, before the late Chief Justice Sewall; when the de> mandants proved and gave in evidence the deed of Betsey Flagg dated and executed June 29, 1810, by which, in consideration oi the support and maintenance to be provided for her by the inhabitants of Worcester, she conveyed the demanded premises to them, to hold during her life ; also the assignment thereof to her, as her dower in the estate of David F., upon a commission from the probate office for the county of Worcester, and there duly returned November 28, 1803. The tenant required evidence of the assent of the corporation of the town of Worcester to the said purchase ; and the question arising on this objection was reserved.
    The tenant then proved and gave in evidence a deed, dated September 30, 1808, and then executed by the same Betsey Flagg, the consideration thereof mentioned to be 250 dollars, by which she had conveyed the same lands and premises to William C. Fislce and Amos Hudson; also a deed dated April 1, 1809, and then executed, by which they had bargained and sold all their right and interest in the demanded premises to Eaton, the tenant. And he further proved that he was in the possession thereof when this deed was made to him; and that his tenant, one Samuel Gay, resided in the part of the said dwelling-house assigned to the said Betsey Flagg, and was in the occupation of the other parts of the demanded premises at the time when her said deed to the demandants was made and executed.
    The demandants then proved that Betsey Flagg, previous to her executing her said deed to them, entered upon the demanded premises, claiming the same, and declaring that she entered for the purpose of possessing herself of the same, and of enabling herself to make a conveyance thereof; and that, being in the [ * 370 ] part of the dwelling-house assigned *to her, she there executed her said deed to the demandants.
    To prove an illegal consideration between the said Fislce and Hudson and the said Betsey Flagg, for her deed to them, or that her deed had been obtained from her by menaces and duress, the demandants called the said Betsey Flagg to testify. For the tenant it was objected that she was an incompetent witness; and, further, that her deed was not liable to be avoided by her assigns for the causes alleged, even if maintained upon evidence. But these objections were overruled, and the questions arising thereon were reserved. Betsey F. testified that Fislce and Hudson and the said Eaton came together to her house, and told her that she must either consent to give up her property, for a satisfaction to Fislce and Hudson for certain goods, which they said had been stolen from them by one Thomas Gleason, or be sent to jail; and that there was proof of her selling or giving away some gloves, which were among the articles stolen by Gleason; and that, after consulting with her brother-in-law', and with his advice to that purpose, she chose to make the deed required by Fiske and Hudson, rather than go to jail, and accordingly executed that deed; and that, at going away, one of the parties to the deed gave her two dollars in money.
    By other evidence and testimony at the trial.it was proved that Fiske and Hudson, the grantees in the said deed, had, previously to the making of the same, commenced a prosecution against Gleason, upon a charge of shop-breaking and larceny and stealing their goods; and upon their complaint against him to a magistrate, the said Gleason had been arrested, examined, and committed for trial. In the course of the examination of Gleason, the said Betsey F. having been also examined at the same time as a witness, it had appeared that Gleason had been for some time, and was at the time of the alleged theft, an inmate with her, and resident in her house; and from this and other circumstances collected at the examination, suspicions were entertained * by the said [*371 ] Fiske and Hudson against the said Betsey F., that she had been an accessory with Gleason in the theft, and had received and harbored him, knowing of the theft, and had knowingly received, concealed, and disposed of, the stolen goods, or some part of them. With these suspicions they repaired to her, accompanied by the said Baton, then a deputy sheriff, stated their charges against her, and their demands upon her to have satisfaction for the goods stolen from them, and their disposition to accept satisfaction from her, so far as her property would go, if she was willing to make it over to them, and desired her to consult her connections and neighbors upon the subject. She was also told that Fiske and Hudson had no power to release her from a prosecution for her crime, if one should be commenced against her ; but that it was just on her part, if she had been concerned with Gleason, to make all the reparation in her power to the parties injured. And in consequence of this representation, after consulting with her brother-in-law, she declared she was willing to assign her property to the said Fiske and Hudson for a satisfaction to them for their goods stolen by Gleason; and the deed in question was thereupon made and accepted by them; and on their part they gave the said Betsey F. a written covenant or promise, in which they engaged to account with her for any of the stolen goods which should be thereafter restored to them, and for any other satisfaction which should be received from Gleason, or from any other person, and to pay her the amount. And it was agreed and admitted at the trial that Gleason had been afterwards convicted of the theft charged against him by Fiske and Hudson, and had been sentenced to confinement in the state prison; and that no prosecution had ever been commenced against the said Betsey F. for her supposed concern with Gleason, or in the said theft.
    
      Upon this evidence, all questions of law being reserved, it was left to the jury to determine whether the deed to Fiske and Hudson had been obtained from a person suspected as an [ * 372 ] accessory to a larceny, while she apprehended * herself in danger of a prosecution upon a charge of that nature, and given with the intention and expectation of preventing it, and so accepted by the grantees ; and whether the prosecution, so far as depended on them, had been thereby prevented; and if that was the case proved, the jury were directed to find a verdict for the demandants, and to disregard the other objection of menaces and duress, as not supported by the evidence. The jury returned a verdict for the demandants, subject to the opinion of the Court upon the foregoing report of the trial.
    The cause was argued, at the last September term in .this county, by Bigelow and Lincoln for the tenant, and by Blake for the demandants.
    
      Bigelow
    
    contended that it was not competent for a town to receive a conveyance of land in this manner. The law has provided that the proper officers of towns may, in a certain way, prevent the squandering of the estates of such as are chargeable, or of whom it is apprehended that they will become chargeable. But it does not appear that this woman was within either of these descriptions, nor even that she had her legal settlement in Worcester. It is against public policy, since in this way they may take estates in fee, and never make any provision for the grantor; for whom or for whose heirs there would be no means of compelling either a maintenance or a restoration of the estate.
    
      Betsey Flagg
    
    was not a competent witness in the case. She was not competent to defeat her own deed; and she was interested, as, in case of her needing the aid of the town, she had an inducement to testify in their favor, to procure a more comfortable support and kinder treatment.
    The cause was improperly submitted to the jury, in leaving it to their decision whether the deed to Hudson and Fiske was given in composition of a felony; since the whole evidence was the other way, and it was a question for the Court upon the evidence, and not for the jury. 
    
    Further, when money or other valuable thing is paid ex turpi causa, it cannot be recovered back by action at law, any more than payment of an obligation given for the same [ * 373 : * cause can be enforced by action. This was an absolute conveyance; and, as the grantor had no right to claim it herself, she could not assign such a right to the demand-ants. Her entry was tortious, as she was estopped to say that her deed was void for the baseness of the consideration.
    
      Blake.
    
    Towns are competent to purchase and hold lands for all such objects as they are obliged to provide for, as for burying-places, sites for school-houses, &c.; so they are obliged to support paupers; and the consideration in this case was therefore valid The argument from a possible abuse of the right proves too much. If towns have no such powers, then persons in declining circumstances, and of mean capacities, must come to be wholly supported by the public, whose estates, thriftily managed, might be sufficient for their comfortable support.
    As to the competency of the witness—[Curia. You need not answer this objection, which is xconfined to the case of negotiable securities.]
    The cause was properly left to the jury upon the facts proved. Whether this were compounding a felony was a fact to be inferred from other facts; and they were well instructed in the law by the judge, that, if they found the fact in question, then they would con sider the deed void.
    There is a difference between deeds for the conveyance of land, and other instruments, growing out of an illegal transaction. The formér may be avoided by the grantor, or any one else claiming to hold under the grantor. 
    
    
      Lincoln, in reply.
    Suppose Betsey F. to have had a lawful settlement in another town,—and there is nothing in the case to contradict the supposition, — there was no consideration for the deed, and it was a fraud on such other town. But towns have no authority to purchase real estates, except by statutes, which have no application to this case. Here was no assent to the purchase by the town, which was necessary to perfect their title.
    As to the evidence of compounding a felony, there was no promise of security, or not to prosecute. It was a fair transaction as between the parties, if a felony had been committed;
    * even our statutes make provision for satisfaction to [ * 374 ] the party from whom the goods are stolen. Threats of lawful imprisonment are not sufficient to avoid a contract.
    The cause was continued to this term for advisement; and now the opinion of the Court was delivered by
    
      
       5 Vin. Abr. 408, B, §20.—2 Eq. Abr. 160
    
    
      
      
        Jacob’s Conveyancer, 13—2 Inst. 483.
    
   Parker, C. J.

The demandants claim under a conveyance from Betsey Flagg, who had a life estate in the premises, under an assignment of it by the judge of probate, as her dower in her deceased husband’s estate. The consideration of this conveyance was substantially an engagement, on the part of the inhabitants of the town of Worcester, to support her during the residue of her life.

The tenant defends under a deed from the same person, executed and delivered, almost two years before her deed to the demandants, to William, C. Fislce and Amos Hudson, for the apparent consider ation of 250 dollars, and a deed from the said Fislce and Hudson to him, executed and delivered April 1, 1809.

It is, then, obvious that the demandants cannot prevail in this suit, unless they can show that the prior conveyance to Fislce and Hudson was void in its execution, or that it is voidable as against the tenant who purchased of them.

It is not stated in the report whether Eaton was a bona fide purchaser for a valuable consideration; but that is to be presumed, since there is nothing to the contrary in the case.

The demandants attempt to avoid the conveyance to Fislce and Hudson, by showing that the real consideration which passed between the parties was the composition of a felony charged upon the said Betsey Flagg, by the two grantees named in the deed; and for proof of this fact at the trial, they produced, besides other evidence, the testimony of the said Betsey, which was received by the judge who tried the cause, and permitted to go to the jury, although objected to by the tenant.

The first question reserved respects the competency of this witness; and it has been objected to her that, being a party to the deed, she should not be permitted, by her testimony, [ * 375 ] * to defeat what, by her free and voluntary act, she had attempted to establish; and also that she was in some measure interested, that is, to secure to the demandants the fund upon the faith of which they had undertaken to maintain her.

But we are of opinion that she is a competent witness, notwithstanding these objections. The rule lately settled in this Court, respecting the competency of witnesses, who are parties to the instruments to be defeated by their testimony, applies exclusively to parties to a negotiable instrument, as was stated in the case of Churchill vs. Suter. ,

The other objection cannot prevail, for there is no legal and direct interest in the event of this suit; and the circumstance relied upon to prove her interest proves nothing more than a possible bias, which the jury are to judge of in considering her credibility.

Taking her testimony, then, as correctly given, and as corroborated by other evidence, we must believe that the only consideration of the conveyance to Fiske and Hudson, except a trifling sum which was given for form’s sake after the deed was executed, was the expectation on her part of some indulgence, by the means of those grantees, on a complaint or suspicion, that existed against her of having received stolen goods, or some other criminal act connected with a larceny committed on the said Fiske and Hudson’s property by one Gleason, who was afterwards convicted thereof. And, indeed, from the manner in which the cause was put to the jury by the judge, we are obliged to consider the jury as having found, by their verdict, that the deed was given altogether in consideration of an expected release from a criminal prosecution by the intervention of the said Fiske and Hudson, and for no other cause.

The question is, then, whether a deed, given under such circumstances, is absolutely void, or whether it can be avoided by the entry of the grantor, so that a subsequent conveyance, made by her dona fide, and for a Valuable consideration, will pass the estate. And we are of opinion that the deed so given is not void; nor was it voidable, even * against Fiske and [ * 376 ] Hudson, by the entry of the grantor, for the reasons mentioned.

A bond or other obligation, or a written promise, founded upon such a consideration, may be avoided; because the law will not uphold a contract, or permit a party to enforce it, if it was made to secure the price of an unlawful act. Thus, in the case of Collins vs. Blantern, 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, But it was holden in that case, and has been holden in numerous other cases, that, where money has, in fact, been paid upon such consideration, it cannot be recovered back again, because in pari delicto potior est conditio defendentis.

There have been some cases in England, which look as if in all instances, where a party has paid money upon an illegal transaction, he may recover it back again in an action for money had and received. But it is now unquestionably settled there, that an action for money so paid cannot be maintained, where the parties are really in pari delicto; and upon looking into all the cases upon the subject, some of which have been already referred to, it will appear that a distinction is maintained between those cases in which one of the parties has, by an illegal act, taken an advantage of and oppressed the other, and those in which it is not possible to distinguish between the parties, as to the degree of their criminality. Thus, where usury has been paid, it is considered that the lender has availed himself of the distress of the borrower, and has violated the law, to extort from him more than the lawful rate of interest. In this case, an action for money had and received will lie for the excess. In the cases of Smith vs. Bromley, and Browning vs. Morris, the doctrine, as laid down by Lord Mansfield, is that, where certain acts are made unlawful by statute, to protect unwary and ignorant people from oppression and extortion, there although both parties are guilty of violating the lawj yet they are [ * 377 ] not equally guilty, and that, in such * cases, the party from whom money is exacted shall recover it back from ' him who practises the oppression. Such are the cases of usury, of money paid to a creditor by a bankrupt to procure his signature to a certificate, and money paid contrary to the laws regulating lotteries. But that in all acts, which are unlawful on account of their immorality, or because they are hostile to public policy, there the parties to the act are in pari delicto and potior est conditio defendentis. This distinction seems to have been ever afterwards observed in the English courts; and being founded in sound principle, is worthy of adoption, as a principle of common law in this country.

In the case of Lacaussade vs. White, the court are made by the reporter to say, “ that it was more consonant to the principles of sound policy and justice, that wherever money has been paid upon an illegal consideration, it may be recovered back again by the party who has thus improperly paid it, than by denying the remedy to give effect to the illegal contract.” This general obser vation, if adopted as a principle of the common law, would utterly defeat the application of the maxim already repeated, in pari de lido, &c., and it can hardly be supposed that the Court intended to be understood in the sense attributed to them by the reporter, especially as the cause then before them did not require such broad principles, and as, in the case of Howson vs. Hancock, which was decided two years afterwards by the same judges, they refused to permit the plaintiff to recover money back which he had paid upon an illegal wager; and in this last case, Lord Kenyon recog nizes the distinction, adopted by Lord Mansfield in the case of Smith vs. Bromley, between cases of oppression or extortion, and cases of illegality on the ground of immorality qr public policy And in the case of Vandyck & Al. vs. Hewitt, Lord Kenyon again recognizes and adopts Lord Mansfield’s distinction, and says the rule has been settled in all times, that in pari delicto potior est, &,c.

It appears, then, to be the settled law in England, and we are satisfied that it is also the law here, that where two parties * agree in violating the laws of the land, the Court [ * 378 ] will not entertain the claim of either party against the other, for the fruits of such an unlawful bargain. If one holds the ooligation or promise of the other, to pay him money, or do any other valuable act, on account of such illegal transaction, the party defendant may expose the nature of the transaction to the Court; and the law will say, “ Our forms and rules are established to protect the innocent and to vindicate the injured, not to aid offenders in the execution of their unjust projects; ” and if the party who has foolishly paid his money repents his folly, and brings his action to recover it back, the same law will say to him, “ You have paid the price of your wickedness, and you must not have the aid of the law to rid you of an inconvenience which is a suitable punishment of your offence.”

If, then, the composition of a felony or of a larceny is an illegal consideration of any promise or obligation for money, the party claiming under such instrument cannot enforce it in a court of justice ; nor can the other party, if he has paid it, recover it back again. There must, then, be a distinction between a conveyance of land and money paid on such consideration, or Betsey Flagg could not, on this ground, avoid her deed to Fiske and Hudson by entry or action, so as to convey any title to the demandants. Such a distinction was attempted in the argument, but we find no foundation for it.

A deed of bargain and sale, signed, sealed, delivered, acknowl edged, and recorded, is an actual transfer of the land to the grantee as much as the delivery over of a sum of money, or of a personal chattel, is a transfer of either of those. And in addition to the deed in the case at bar, it is in evidence that the original grantees had by deed also conveyed the same land to the tenant, who entered and occupied more than a year before Betsey Flagg entered and made her deed to the demandants.

We are' satisfied that her entry was tortious, and that she acquired no right by it to convey, if there is no other defect than the composition which has been spoken of; and if such [ * 379 J entry would have been good against Fiske and * Hudson, it would not avail her against Eaton, provided he were a bona fide purchaser for a valuable consideration, without any knowledge of the illegal transaction between the original parties.

But the case suggests another point, which, from the apprehension of the judge who sat in the trial that it was not necessary to be settled, was not fully before the jury; which is, that the deed of Betsey Flagg, under which the tenant claims, was obtained from her by duress of imprisonment, or threats of imprisonment. As we are inclined to think that menaces of imprisonment to a woman, fully made out in evidence, would avoid any deed or other instrument extorted from her by such means, we think there ought to be a more full trial on that point. We do not, however, see any facts stated in the report which would establish this defence satisfactorily to our minds; but it being a proper subject for the jury to decide upon, and a new trial being necessary, to conform to our opinion upon the other point, we thought it proper to suggest that this part of the subject ought to be more fully tried.

With respect to the other questions, — the capacity of the town to take, and the nature of the consideration in the conveyance to the town, — there is no necessity now to decide them ; since the question now decided makes a new trial necessary, and these questions may hereafter come before us more directly,

Let a new trial be granted. 
      
       4 Mass. Rep. 156.
     
      
      
        Warren vs. Merry, 3 Mass. Rep. 27. — Parker vs. Lovejoy, 3 Mass. Rep. 565. — Barker vs. Prentiss, 6 Mass. Rep. 430. — Widgery vs. Munroe, 6 Mass. Rep. 449. —- Jones vs. Coolidge, 7 Mass. Rep. 199. — Fox & Al. vs. Whitney, 16 Mass. Rep. 118.— Packard vs Richardson, 17 Mass. Rep. 127.— Manning vs. Wheatland, 10 Mass. Rep. 502..— Hartford Bank vs. Barry, 17 Mass. Rep. 94. — Fitch vs. Hill, ante, 286.—Butler vs. Damon, 15 Mass. Rep. 225. — Loker vs. Haynes, post, 498. — Bridge vs. Eggleston, 14 Mass. Rep. 245. — Davis vs. Spooner, 3 Pick,. 284. — Brown vs. Babcock 3 Mass. Rep. 29. — From the above cases, it appears that the Court have confined the -a laid down in Churchill vs. Suter to negotiable promissory notes And there seems to be no very good reason for admitting any such rule even in this case. The rule in the English courts is clearly otherwise. Our courts were misled by a nisi privs decision, which has been overruled.—Jordaine vs. Lashbrooke, 7 D. & E. 601. — Rich vs. Topping & Al. Peake’s N. P. C. 224. — 1 Esp. N. P. C. 176. — Brand vs, Ackerman, 5 Esp. 119. — Kent vs. Lowden, 1 Camp. 177.— Chitty, 6th ed. 413.— Peake's Ev. 4th ed. 255. — 2 Stark. Ev. 298. — 2 Phil. Ev. 7th ed. 20.
     
      
       2 Wils. 347.
     
      
       Vide Boardman vs. Gore & Al. 15 Mass. Rep. 331.
     
      
       6 D. & E. 61. — 7 D. & E. 535, 630. — Doug. 470, 697. — Cowp. 199. —1 H Blade. 67. — 8 D. & E. 575. — 5 D. & E. 405— 1 East, 94. — 1 Comyns on Contracts 30,46.—2 ditto, 109.
     
      
      
        Doug. 696, n.
     
      
      
        Cowp. 790.
     
      
       7 D. & E. 535
     
      
       8 D. & E. 575.
     
      
       1 East, 98.
     
      
       See same case on new trial, 13 Mass. Rep. 371, on which the demandants prevailed, on the ground that the deed of Betsey Flagg was obtained from her by duress
     