
    Hutson v. Hutson
    No. 41545
    October 17, 1960
    123 So. 2d 550
    
      
      Floyd & Holleman, Gulfport, for appellant.
    
      
      Robert B. Adam, Gulfport, for appellee.
   Gillespie, J.

The question is: May a grantor invoke the aid of the chancery court to avoid a deed given when he was voluntarily intoxicated to the extent that he did not understand the nature and consequence of his act?

Appellant filed his bill in chancery , to cancel a deed which he charged was procured by appellee without consideration when appellant was so intoxicated that he was wholly incapacitated to know what he was doing, or, in other words, appellant did not understand the nature and consequences of his act in signing the deed. The court of its own motion dismissed the bill on the ground that appellant did not come into court with clean hands. The chancellor was of the opinion that since appellant charged that he was intoxicated when the deed was signed, it necessarily followed that appellant had violated Section 2613, Mississippi Code of 1942, making it unlawful to have possession of intoxicating liquor.

The action of the chancellor in dismissing the bill on his own motion was equivalent to sustaining a demurrer. If the bill stated a cause of action, his action must be reversed.

The rule applied by the chancellor is stated in Griffith’s Mississippi Chancery Practice, Section 42, as follows : ‘ ‘ He who comes into equity must come with clean hands. —It is the meaning and purpose of this maxim to declare that no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity, or illegality.” The text further states that the maxim does not exclude a party because in some other matter his conduct may have been reprehensible. Then it adds that, “It may be described as such wilful misconduct, inequity or fraud with respect to the immediate transaction as would be condemned and pronounced wrongful by honest and fair-minded men. ’ ’

Guilt of the unlawful possession of intoxicating liquor does not necessarily follow from the mere fact of voluntary intoxication. Nearly forty years ago this Court stated that the statute does not make it a crime to drink liquor. Brazeale v. State, 133 Miss. 171, 97 So. 525. Of course, a person may own the liquor he is drinking and thus be guilty of the unlawful possession thereof. In other words, a person who is intoxicated may or may not have been guilty of tbe unlawful possession of liquor. Since tbe Brazeale case was decided it bas been cited at least six times and tbe legislature bas met more than twenty times. Tbe law therein announced is still tbe law.

This case must be remanded for trial on tbe merits and tbe proof may, and probably will, show that appellant bad unlawfully possessed tbe liquor that caused him to be so intoxicated as to be incapacitated when be executed tbe deed in question. Therefore, we should decide whether appellant may maintain bis action notwithstanding tbe fact that be was guilty of illegally possessing tbe liquor that caused bis voluntary intoxication.

We bold that tbe clean bands maxim is not applicable so as to bar appellant from maintaining bis action. If appellant was guilty of illegality in connection with bis intoxication, it was not with respect to tbe immediate transaction in question. There was nothing done by appellant with respect to tbe immediate transaction that would be condemned and pronounced wrongful by honest and fair-minded men. Tbe illegality of possessing tbe intoxicating liquor consumed by appellant and which produced bis incapacity was remote from tbe transaction in question. Nothing in tbe bill of complaint shows that' appellant was guilty of any misconduct, inequity, fraud, or illegality with respect to tbe transaction itself. His prior illegal conduct should not disqualify him from maintaining bis action.

According to tbe bill, which we must accept as true, tbe appellee procured a deed to valuable property for no consideration when tbe grantor was so intoxicated that be was incapable of understanding tbe nature and consequences of bis act. Simple justice demands that such a victim have a remedy. Tbe equities in favor of appellant far outweigh any misconduct of bis in possessing and consuming intoxicants. We conclude that tbe clean bands maxim does not apply. This seems to be in accord with the general rule. 29 Am. Jur., Insane Persons, Section 82, page 203. In 26 C.J.S., Deeds, Section 54, page 731, the rule is stated as follows: “A grantor may avoid his deed on the ground of his voluntary intoxication at the time of its execution where his intoxication was such as to render him incapable of understanding’ the nature and consequences of his act.” Cf. Caulk v. Burt, 114 Miss. 487, 75 So. 369, 112 Miss. 660, 73 So. 618. We have carefully considered the rule, based on public policy, that no court will lend its aid to a party who grounds his action upon an immoral or illegal act. That rule and the cases cited by appellee announcing it do not apply to the present case.

For the reasons stated, the case is reversed and remanded.

Reversed and remanded.

McGehee, G.J., and Kyle, Arrington and Ethridge, JJ., concur.  