
    HANES v. HANES.
    (No. 8250.)
    (Court of Civil Appeals of Texas. Dallas.
    July 5, 1919.
    Rehearing Denied Nov. 22, 1919.)
    1. Deeds <§==>73 — In consideration oe agreement TO DISMISS CRIMINAL PROCEEDINGS VOID.
    A conveyance of realty by defendant to plaintiff in consideration of dismissal of criminal proceedings based upon the seduction of plaintiff by defendant’s son, and of the marriage of defendant’s son and plaintiff, is void, and will not form the basis of a suit in trespass to try title.
    2. Deeds <§=>17(3) — Marriage- sufficient CONSIDERATION.
    A conveyance of land may be supported upon marriage contracted by the grantee and the grantor’s son.
    3. Contracts <§=>137(1) — Effect of illegality OF ONE OF SEVERAL CONSIDERATIONS.
    A promise made upon several considerations, one of which is unlawful, no matter whether the illegality be at common law or by statute, is void.
    4. Deeds <§=>73 — Illegality of . consideration RENDERS INDIVISIBLE CONTRACTS VOID.
    Where a grantor conveyed real property to grantee in consideration of the dismissal of criminal proceedings for seduction of grantee by grantor’s son, and,of the marriage of the son to grantee, the contract was not divisible, and the conveyance was vitiated by the illegal consideration relative to dismissal of the criminal proceeding.
    
      5. Specific performance <g=s>56 — Conveyance BASED UPON ILLEGAL CONSIDERATION AS EXECUTORY CONTRACT.
    Where land is conveyed upon several considerations one.of which is illegal, as requiring dismissal of criminal proceedings against grantor’s son, but the grantee is not put in possession, and the contract remains executory, a suit for specific performance will not lie.
    Appeal from District Court, Kaufman county ; Joel R. Bond, Judge.
    Trespass to try title by Mabel Hanes against C. W. I-Ianes. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Huffmaster ¿3 Huffmaster, of K&ufman, for appellant.
    Woods & Morrow, of Kaufman, for appellee.
   RASBURY, J.

Appellee sued appellant in statutory trespass to try title to recover 50 acres .of land in Kaufman county, alleging in addition to the statutory requirements that while she was a married woman her husband refused to join in the suit, and that the land sued for was her separate property. Appellant answered by plea of not guilty, and, among other matters, that the deed was void because against public policy, in that the consideration for the deed was the agreement of appellees to supress the prosecution of appellant’s) son, Bryan Hanes, for seducing appel-lee, Mabel Smith. There was trial by jury, to whom the issues of fact were referred for special verdict in form of the usual interrogatories, upon the answers to which judgment was entered for appellee. From that judgment this appeal is taken.

The facts necessary to be stated are these: Bryan Hanes, son'of. C. W. Hanes and M. P. Hanes, had been tried and convicted in Dallas county on a charge of seducing Mabel Smith. Pending appeal, the appellant, C. W. Hanes, and his wife M. P. Hanes, conveyed to Mabel Smith 50 acres of land of a 600-acre tract in Kaufman county, reciting the consideration to be “one dollar and other valuable consideration,” but did not place her in possession thereof. On the day the deed was executed, Mabel Smith and Bryan Hanes were married; the judge of the court where he had been tried and convicted performing the ceremony, and the county attorney who prosecuted him being present. After the marriage, a new trial was granted, and the conviction was set aside, and Brsmn Hanes ultimately released, though what was done with the charge does not appear. Thereafter O. W. Hanes, appellant, and his wife, accompanied by their son, Bryan Hanes, and his wife, went to the home of the. former in Kaufman- county. ' Three calendar months after the marriage, Mabel Hanes returned to her parents.

The facts preceding and inducing the execution and délivery of the deed, as related by J. B. Smith, father of Mabel Hanes, who was acting for her in that respect, is disclosed by the excerpts immediately quoted from his testimony:

“As to how the deed came to be made, will say that the boy, Bryan, was in prison, and Mr. Hanes wanted him out, and that was the only way to get him out was by signing this deed. This deed was made to get Bryan out of prison — for my daughter to marry him to get him out- of prison. * * * Yes, the consideration of the deed was that the case was to be dismissed and Bryan was to be turned out of jail after he married Mabel. We were willing to drop the court proceedings against Bryan so long as he acted a gentleman and treated my daughter right. He had a sentence of five years and was talking about appealing the case. * * * I exacted of Mr. Hanes a conveyance to my child of -50 acres of land, and, when he executed the deed, I was willing for my daughter to marry his son; otherwise Bryan Hanes would have gone to the penitentiary. The land was for the support of her and her child. I didn’t give my daughter for the deed.”

Upon conclusion oí the evidence, appellant requested the court, in effect, to peremptorily direct verdict in his favor on the ground that the deed was void and unenforceable because the consideration therefor was illegal. The request was refused, and the court’s action in that respect is assigned as error. It is quite clear, we believe, that the consideration moving from appellee to appellant was the promise of appellee’s father to suppress or co-operate in the suppression of the criminal charges then pending against Bryan Hanes. Appellee’s father, as we have shown, testified that the consideration for the conveyance was that the criminal proceedings were to be dismissed after Bryan Hanes married appellee. It is said that a contract of such character exists where the parties agree expressly or impliedly upon the suppression or abandonment of the prosecution of the criminal charges. Cohen v. Grimes, 18 Tex. Civ. App. 327, 45 S. W. 210. By the rule stated, the conveyance was in our opinion void and could not form the basis of a suit in trespass to try title.

It is argued, however, that part of the consideration of the conveyance moving to appellant was the agreement of appellee to marry his son, which is a legal consideration and may therefore form the basis of a suit of trespass to try title. While it is our deduction from the evidence that the consideration which actually induced the conveyance was the. promise to suppress the criminal proseeution-pending against appellant’s son, and that the marriage was but a part of the plan to accomplish that purpose, it may be conceded that the marriage was part of the consideration and that such marriage is sufficient to support a conveyance of lands from a third party, as it is (1 Elliott Contracts, § 241), yet that fact will not, In our opinion, lend validity to tlie deed. It “is well settled upon principle and authority that a promise made upon several considerations, one of which is unlawful, no matter whether the illegality be at common law or by statute, is void.” Edwards County v. Jennings, 80 Tex. 618, 35 S. W. 1053. It is true that, in consonance with such rule, it is the further rule that if the contract is divisible, that is, the legal consideration can be separated from the illegal, the contract will be enforced. 1 Elliott Contracts, § 249. We are persuaded, however, that the consideration for the conveyance under discussion is not divisible. Conceding, as we have for the time, that Hanes made the conveyance both in consideration that appellee would marry his son and that her father and she would .loin in the purpose to suppress the criminal prosecution, we are unable to say which was the greater inducement. We believe we could say with greater reason that the controlling inducement was the promise to suppress the prosecution, and that but for the agreement in that respect there would have been no conveyance of lands. In Edwards County v. Jennings, supra, the county agreed to pay Jennings §3,500 and grant him the exclusive privilege of supplying the citizens of Rock Springs with wáter in consideration of the construction of certain apparatus to furnish a supply of water, etc., for the courthouse. It was held that, the contract was void because the exclusive privilege tended to create a monopoly. And while it was also held that part of the consideration, the §3,500, was legal, the court declared it could not “say which of these considerations most affected the mind of Jennings and induced his promise, nor are there any means of ascertaining how much of his obligation was based upon the illegal consideration.” Judged by the standard that ordinarily governs men under facts similar to those disclosed by the record in the case at bar, we think it can be safely asserted that what induced appellant to convey the land was the promise to suppress further prosecution of his son, and what moved appellee's father was the agreement to marry his daughter, which would in some measure repair the injustice done her. Such being the situation, we are unable to escape the conclusion, however reluctant we may be to do so from a moral standpoint, that the consideration is not separable and cannot stand alone upon the legal part.

There is also another well-established rule of law tjjat renders the conveyance unenforceable. As we have noted in our statement of the facts, appellant did not, when the deed was executed and delivered, place appellee in possession of the land, and the contract as a consequence was executory. In such cases when the contract is illegal courts will not decree specific performance. Similarly in cases where possession is delivered courts will not aid the grantor ia recovering possession. Medearis v. Granberry, 38 Tex. Civ. App. 187, 84 S. W. 1070.

There are a number of other assignments of error, all of which have been carefully examined, none of which, in our opinion, present reversible error, but which we have not discussed in view of the conclusions we have reached concerning the consideration of the deed.

The judgment of the honorable trial court is reversed, and judgment here rendered for appellant.

Reversed and rendered. 
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