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Grant v. Butt Supreme Court of South Carolina · decided 1941-12-01
Good law ✅ — No negative treatment on record how we know
Decided 1941-12-01
How this case has been cited Cited by 14 later decisions — most recently July 1996
10 state decisions
4 0 1941 1950 1960 1970 1980 1990 decided Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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¶1
The opinion of the Court was delivered by
Mr. Associate Justice Stukes.
¶2
This Court is in full accord with the result of the judgment of the Circuit Court reached on several grounds in the order of Special Judge George Bell Timmerman sustaining the demurrer to the complaint. This order sufficiently states
*313
the pleadings and issues; it will be reported. Appellant’s exceptions thereto have been carefully considered and are overruled and the judgment below affirmed.
Mr. Chief Justice Bonham, Messrs. Associate Justices Baker and Fishburne, and Mr. Acting Associate Justice G. Duncan Bellinger concur.
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Case posture Posture Before TIMMERMAN, Special Judge, Common Pleas Court of Charleston County, June, 1941. Affirmed.Action by Mamie F. Grant against M.J. Christine Butt, as administratrix of the estate of William C. Von Glahn and M.J. Christine Butt, individually, for breach of contract to leave certain property to the plaintiff. From an adverse judgment, plaintiff appeals.
The order of Special Judge Timmerman follows:
This case is before me on a demurrer to the complaint, the grounds of which will be adverted to later. Oral arguments were made in open Court, the case was marked Heard and, by agreement of counsel, decision on the issues raised was reserved to be entered nunc pro tunc.
The complaint alleges a most extraordinary state of facts dealing with the lives of two individuals, one a Negro woman, or part Negro and part Indian, and the other a white man, now deceased. The plaintiff alleges that she is a descendant of the American or Indian race; that prior to 1907, she had married a Negro man by whom she had two children, only one of whom is now living; that her Negro husband died prior to 1907 and after his death she met defendant's
intestate, a white man, who became interested in, infatuated with, and fell desperately in love with this plaintiff; that for a long time the intestate forced his attentions upon her, insisted on being in her company and in her home and repeatedly and insistently begged her to marry him and live with him as his wife; and that the plaintiff, appreciating that under the laws of the State of South Carolina a Negro
could not legally contract marriage with a person of the Caucasian race, refused the offer of marriage. The plaintiff then alleges that the intestate insisted and entreated that this plaintiff should leave the State of South Carolina and go with him to some state where they could legally marry, but that she refused to either marry him in the State of South Carolina or move with him to any other state as his wife, although she was fond of him and enjoyed his company and companionship.
Following the foregoing, the plaintiff alleges, in the fourth paragraph of the complaint, an oral contract between herself and the intestate as having been made on Thanksgiving Day in 1907. She says it was agreed on her part: (a) That she would not marry so long as the deceased lived; and (b) that she would give the deceased the full benefit of her presence, companionship, care and assistance, and the absolute freedom of her home.
She then alleges that the intestate agreed on his part: (a) To give plaintiff his undivided affection and companionship; (b) to furnish plaintiff money for the maintenance of herself, her home and her children; (c) to take out a life insurance policy, and make the plaintiff the beneficiary thereof; (d) to assign to the plaintiff certain of his assets; and (e) to make a will giving the plaintiff one-half of his estate if she survived him and kept her agreements.
The plaintiff claims to have fully performed her part of said contract and that the intestate had fully performed his part, except that he neglected to leave her one-half of his estate on his death.
The plaintiff specifically alleges, as evidence of her complete compliance with the terms of the contract, that she gave the intestate her presence, companionship, care and assistance, and the absolute freedom of her home and table; and the deceased, regularly and without interruption, over the span of years, accepted her companionship, care, assistance, and the absolute freedom of her home and table; that the intestate entertained his white friends in her home, that he ate at her table, that he slept in her bed, that he treated her home * * * as his home, that he acted there as though it were his home, that he kept at all times in his possession a key to her dresser drawer, her trunk, and her lock box, and that he exercised complete access to her every and most personal and intimate belonging. In fact the plaintiff alleges that both she and the intestate fully performed every obligation assumed under the oral contract, except that the intestate had failed to will or leave her one-half of his property on his death.
The plaintiff then proceeds to allege certain acts on the part of the intestate in confirmation of the oral contract originally entered into, as the giving of a ring with one diamond after the contract had been in force for ten years, then a ring with two diamonds after the contract had been in force twenty years, and finally a ring with three diamonds after the contract had been in force for thirty years.
The plaintiff concludes by alleging that, after due diligence, she had been unable to find any will or other instrument in writing, left by the intestate, through which she could enforce her rights under the contract, and that by reason of the contract she is entitled to one-half of the net assets of the intestate's estate. She fixes the value of the estate at $143,000.00.
The demurrer makes seven grounds of attack upon the complaint. They are as follows:
1. In that it appears from the facts set forth on the face of complaint that the Court has no jurisdiction of the subject
of the action, the principle of public policy being dolo malo non oritur actio.
2. In that it appears upon the face of the complaint that the plaintiff has not the legal capacity to sue, in that no Court will lend its aid to one who founds his cause of action upon an illegal act.
3. In that it appears upon the face of the complaint that the plaintiff has not the legal capacity to sue, in that the contract alleged in the complaint and the part performance alleged therein are repugnant to the public policy of the State of South Carolina, and no Court of this State will lend its aid to one who founds his cause of action upon a contract that contravenes the public policy of this State.
4. In that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action in that it appears upon the face of the complaint that plaintiff's cause of action is based upon a contract, and part performance thereof, which are repugnant to the public policy of the State of South Carolina, and the public policy of the State of South Carolina, demands that plaintiff cannot benefit by virtue of her own wrong in entering into a contract which is void in its inception as being against the public policy of the State of South Carolina.
5. In that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action, in that it appears upon the face of the complaint that the plaintiff's cause of action is based upon an alleged contract, the consideration of which is illegal and against public policy.
6. In that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action in that it appears upon the face of the complaint that the plaintiff's cause of action is based upon an alleged contract which lacks mutuality and which could not be enforced by the deceased against the plaintiff.
7. In that the complaint does not state facts sufficient to constitute a cause of action in that there appears upon the face of the complaint no legal cause of action in favor of the plaintiff.
The defendant contends that the contract is inherently illegal, that it is against public policy, that it lacks proper legal consideration and mutuality, that it contemplates illicit relations between a man and woman as the primary consideration thereof, that it contravenes the statutes and the Constitution of the State of South Carolina relating to marriage between the races, that it attempts to accomplish by indirection what the law directly prohibits, that it is a contract in general restraint of marriage as to each of the parties for the life of the contract and for so long as both shall live; and that, therefore, it is unenforceable as against the public policy of the State.
Assuming all of the allegations of the complaint to be true and drawing therefrom the inferences that reason would require one to draw from such a state of facts, it appears that the contracting parties agreed that they could not legally contract matrimony, or otherwise legally sustain the relationship toward each other of man and wife; that they desired to sustain that relationship to each other and did sustain it, the law to the contrary notwithstanding; that they agreed to maintain that illegal relationship with each other, and that each would refrain from entering into the legal status of marriage which the law so highly favors between persons legally entitled to enter into such a relationship.
Certainly the plaintiff could not have given to the deceased the full benefit of her presence, her companionship, and the absolute freedom of her home and table or have allowed him to sleep in her bed, if she had married another; nor could the intestate have given the plaintiff his undivided affection and companionship or slept in her bed, if he had contracted marriage with a woman legally competent to enter into such a relationship with him.
The conclusion seems inescapable that the parties really intended by their alleged contract to establish illicit sexual relations, to circumvent the Constitution and statutes of the State of South Carolina relating to the intermarriage of the races, and to set at defiance a sound public policy which gives to every person of age and discretion, white or black, male or female, the right of marriage to another of the same race and of the opposite sex. This contract strikes at the sanctity of the home, the security of family relationships, the legitimate propagation of the race to which one belongs, and at moral standards that have been recognized and enforced, voluntarily and by compulsion of law, since the foundation of this republic.
Article III, Section 33, of the State Constitution provides: The marriage of a white person with a negro or mulatto, or person who shall have one-eighth or more negro blood shall be unlawful and void.
Section 1438 of the Code 1932, provides: It shall be unlawful for any white man to intermarry with any woman of either the Indian or negro races, or any mulatto, mestizo, or half-breed , or for any white woman to intermarry with any person other than a white man, or for any mulatto, half-breed, Indian, negro or mestizo to intermarry with a white woman; and any such marriage, or attempted marriage, shall be utterly null and void and of none effect ; and any person who shall violate this section, or any one of the provisions thereof, shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than five hundred dollars, or imprisonment for not less than twelve months, or both, in the discretion of the court. Any clergyman, minister of the gospel, magistrate, or other person authorized by law to perform the marriage ceremony, who shall knowingly and willfully unite in the bonds of matrimony any persons of different races, as above prohibited, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be liable to the same penalty or penalties as provided in this section. (Emphasis added.)
Section 8571 of the Code, 1932, provides:
It shall be unlawful for any white man to intermarry with any woman of either the Indian or negro races, or any mulatto, mestizo, or half-breed , or for any white woman to intermarry with any person other than a white man, or for any mulatto, half-breed, negro, Indian or mestizo to intermarry with a white woman; and any such marriage, or attempted marriage, shall be utterly null and void and of none effect. (Emphasis added.)
Then there are the laws against adultery and fornication. Sections 1435, 1436 and 1437, Code of 1932.
The action here is based upon an alleged express contract. There is no claim that defendant is indebted to plaintiff on quantum meruit for services rendered, of a purely domestic nature of otherwise. The plaintiff simply says, in effect, that she agreed to live with the intestate in a state of concubinage, after the fashion of a married couple and that the intestate in turn agreed, in consideration of plaintiff's meretricious conduct, to do certain things for her, one of which was to leave her one-half of his estate on his death.
It appears from the allegations of the complaint, and I hold that the only logical conclusion to be drawn therefrom is, that the primary consideration of said contract, on the part of plaintiff, as contemplated by the parties, was that she would live with the intestate and submit herself completely to his adulterous embraces; and that, as secondary considerations therefor, the plaintiff would remain unmarried and maintain a home for the two of them, at the intestate's expense, so that the illicit relations agreed upon could be conveniently consummated to the satisfaction of both parties.
This contract not only violates the law of the land the plaintiff now invokes for its enforcement, it defies the basic moral principles upon which family relationships exist and upon which the social order of the State must of necessity rest.
Mr. Justice McIver, writing the unanimous opinion in McConnel v. Kitchens , 20 S.C. 430 , 47 Am. Rep., 845, said: The general rule, undoubtedly is, that a contract to do an act which is prohibited by statute, or which is contrary to public policy, is void, and cannot be enforced in a court of justice.
In Wiggins v. Postal Telegraph Co. , 130 S.C. 292 , 125 S.E., 568 , 569 , 44 A.L.R., 781, the Court said: We know of no principle of law based upon comity or interstate commerce transactions, which would require a state court to recognize the validity of a contract which under its laws is declared to be against public policy, immoral and void. [ Building Loan ] Association v. Rice , 68 S.C. [236], 241, 47 S.E., 63 ; 2 Kent, Comm., 458; Thornton v. Dean , 19 S.C. [583], 587, 45 Am. Rep., 796; 3 A. E. Enc. Law., 561.
It seems to be well established in this State that contracts having for their object anything that is obnoxious to the principles of the common law, or contrary to statutory enactments or constitutional provisions, or repugnant to justice and morality, are void; that the Courts of this State will not lend aid to the enforcement of contracts that are in violation of law or opposed to sound public policy. Magwood v. Duggan , 1 Hill, 182; Craig v. U.S. Health Accident Ins. Co. , 80 S.C. 151 , 61 S.E., 423 , 18 L.R.A., N.S., 106, 128 Am. St. Rep., 877, 15 Ann. Cas., 216.
In Weeks v. New York Life Ins. Co. , 128 S.C. 223 , 122 S.E., 586 , 587 , 35 A.L.R., 1482, Mr. Justice Marion speaking for the Court said:
Public policy has been aptly described by one of our judges as `a wide domain of shifting sands.' Gage, J., in McKendree v. Southern State Life Insurance Co. , 112 S.C. 335 , 99 S.E., 806 . The term in itself imports something that is uncertain and fluctuating, varying, with the changing economic needs, social customs, and moral aspirations of a people. Story on Contracts (5th Ed.) [3], § 675; 23 A.
E. Ency. (2d Ed.), 456. For that reason it has frequently been said that the expressive public policy is not susceptible of exact definition. But for purposes of juridical application it may be regarded as well settled that a state has no public policy, properly cognizable by the courts, which is not derived or derivable by clear implication from the established law of the state, as found in its Constitution, statutes, and judicial decisions. (Emphasis added.)
The Weeks case was cited with approval in Sandel v. Philadelphia Life Ins. Co. , 128 S.C. 239 , 122 S.E., 591 , and in Temple v. McKay , 172 S.C. 305 , 174 S.E., 23 . See also Alderman v. Alderman , 178 S.C. 9 , 181 S.E., 897 , 105 A.L.R., 102; Tedder v. Tedder , 108 S.C. 271 , 94 S.E., 19 , 2 A.L.R., 438; 6 R.C.L., 689, Sections 104, 701, Sections 107, 707, Sections 114, and 712, Section 120.
Among the early cases of this State, the following principles were announced: Bostick v. McClaren , 2 Brev., 275: Where a note, under seal, was given for an illegal consideration, it was declared that, as both parties had acted illegally in the transaction, neither could be entitled to the countenance of a court of justice. (Emphasis added.)
Lowe v. Moore , 1 McCord Eq., 243: The general principle is correct that equity will not interfere to set aside an executed contract; as in case of an unlawful contract, both parties being in pari delicto.
Wallace v. Lark , 12 S.C. 576 , 32 Am. Rep., 516: There can be no recovery on a contract based upon an illegal transaction in which the prosecutor actually participated. (Emphasis added.)
In the late case of Rountree v. Ingle , 94 S.C. 231 , 77 S.E., 931 , 932 , 45 L.R.A. (N.S.), 776, Ann. Cas., 1915-A, 1002, the Court said: The authorities in this state are full to the effect that, where a plaintiff brings into court on a claim which has no other support than a contract forbidden by law, he cannot recover. McConnel v. Kitchens , 20 S.C. 430 , 47 Am. Rep., 845. (Emphasis added.) Elder Harrison .
The case of Prince v. Mathews , 159 S.C. 526 , 157 S.E., 836 , 840 , appears to be conclusive of this case. In that case Mr. Justice Cothran, speaking for the Court, said:
The authorities hold that a consideration of past cohabitation is good; but that for future cohabitation, or in part for past and in part for future, it is bad. Cusack v. White , 2 Mill Const. [279], 284, 12 Am. Dec., 669; Singleton v. Bremar , Harp, [201], 213; Burton v. Belvin , 142 N.C. 151 , 55 S.E. [71], 72; Smith v. Du Bose , 78 Ga. 413 , 3 S.E., 309 , 6 Am. St. Rep [260], 265; Sherman v. Barrett , 1 McMul., 147; McConnell v. Kitchens , 20 S.C. 430 , 47 Am. Rep., 845; 6 R.C.L., 718; Harlow v. Leclair , 82 N.H. 506 , 136 A., 128 , 50 A.L.R., 973: Bank [ of United States ] v. Owens , 2 Pet., 527, 7 L.Ed., 508 ; Gordon v. Gordon , 168 Ky., 409 , 182 S.W. 220 , L.R.A., 1916D, 576, Ann. Cas., 1917D, 886; Maybank ( Co. ) v. Rodgers , 98 S.C. 279 , 82 S.E., 422 ; Rountree v. Ingle , 94 S.C. [231], 234, 77 S.E., 931 , 45 L.R.A. (N.S.), 776, Ann. Cas., 1915A, 1002; Groesbeck v. Marshall , 44 S.C. 538 , 22 S.E., 743 ; Hall v. [ James T. ] Latimer [ Son ], 81 S.C. 90 , 61 S.E., 1057 ; Denton v. English , 2 Nott. McC., 581, 10 Am. Dec., 638. (Emphasis added.)
It is impossible , in the light of the circumstances surrounding the assignor, and of the letter to Mathews, set forth above, to conclude otherwise than that the consideration of the assignment was future as well as past cohabitation. That conclusion renders it impossible for the plaintiff to recover upon the assignment or upon a claim for breach of warranty in the assignment. (Emphasis added.)
The prevailing rule in other jurisdictions is clearly stated in 12 American Jurisprudence 675, Section 176, as follows:
Where a woman lives with a man as his mistress and performs only such services as are incidental to such relationship she cannot recover compensation therefor, even
though she alleges a separate agreement. Likewise, where a part of the consideration for the agreement is a continuance of the illicit relations, the agreement is for that reason wholly void and unenforceable. An agreement or understanding founded upon a consideration in whole or in part for the commencement or continuance of meretricious sexual intercourse is directly contrary to law or public policy and the best interests of society. Thus, a loan by a man to a woman on consideration that she serve as his mistress cannot be recovered. (Emphasis added.)
Mr. Justice Holmes, speaking for the United States Supreme Court in Sage v. Hampe , 235 U.S. 99 , 35 S.Ct., 94 , 95 , 59 L.Ed., 147 , said: A contract that on its face requires an illegal act, either of the contractor or a third person, no more imposes a liability to damages for nonperformance than it creates an equity to compel the contractor to perform. A contract that invokes prohibited conduct makes the contractor a contributor to such conduct. Kalem Co. v. Harper Bros. , 222 U.S. 55 , 63 , 32 S.Ct., 20 , 56 L.Ed., 92 , 96 , Ann. Cas., 1913A, 1285. And more broadly, it long has been recognized that contracts that obviously and directly tend in a marked degree to bring about results that the law seeks to prevent cannot be made the ground of a successful suit.
It seems to be equally well settled that contracts in restraint of marriage are nonenforceable, for as a general rule, restrictions on marriage are contrary to public policy, and therefore agreements or conditions creating or involving such restrictions are illegal and void. 17 Corpus Juris Secundum, Contracts, p. 615, § 233.
Mr. Justice Field in delivering the opinion in the case of Maynard v. Hill , 125 U.S. 190 , 8 S.Ct., 723 , 729 , 31 L.Ed., 654 , in referring to marriage, used this language: It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.
In Strickland v. Anderson , 186 S.C. 482 , 196 S.E., 184 , 186 , Mr. Justice Fishburne, speaking for the Court, quoted from Noice v. Brown , 38 N.J.L., 228 , 20 Am. Rep., 388, affirmed in 39 N.J.L., 133 , 23 Am. Rep., 213, as follows: A contract is totally void, if, when it is made, it is opposed to morality or public policy. The institution of marriage is the first act of civilization, and the protection of the married state against all molestation or disturbance is a part of the policy of every people possessed of morals and laws.
Suppose the intestate, prior to his death, had applied to the Court to require his paramour to specifically perform the obligation of the contract to permit him access to her bed and person for the satisfaction of his licentious appetite, would the Court have heard him, or, what is more, would the Court have granted the relief demanded? I think not.
I am of the opinion that the demurrer to the complaint should be sustained; and it is so ordered. Source: CourtListener
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