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48 Or. 155

Jackson v. Baker

Oregon Supreme Court

Decided May 29, 1906

Oregon Supreme Court · decided 1906-05-29

<p>Public Lands — Contract to Convey Homestead — Public Policy.</p> <p>1. A contract by a homestead claimant under the laws of the United States to convey to another such homestead, after obtaining title thereto, is void, as against the public policy of the national government, and cannot be enforced by either party.</p> <p>Illegal Contract — Courts—Duty to Dismiss.</p> <p>2. When it becomes apparent in any way during the legal course of a proceeding that a contract sued on is illegal, the action should be dismissed by the court sua sponte, even though the objection be expressly waived, the courts being hound not to permit the forms of justice to be used thus for an improper purpose.</p> <p>Respective Situations op Parties to Illegal Contracts.</p> <p>3. All parties to an illegal contract are equally at fault, and none of them have any standing in courts of justice to enforce the contract or to recover any consideration paid under its terms.</p>

Key passage — most relied on by later courts

““If the illegality appears from the complaint or the plaintiff’s case, the court will, at any stage of the proceedings, dismiss the action, although such illegality is not pleaded as a defense, or insisted upon by the parties, and may have been expressly waived by them. It is an objection which the court itself is bound to raise in the due administration of justice, regardless of the wishes of the parties.””

quoted by 1 later decision, including Mitchell v. Coach

Relies on Oscanyan v. Arms Co. · Anderson v. Carkins · Doon v. Smith

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1906-05-29

How this case has been cited

Cited by 15 later decisions — most recently June 1951

15 state decisions

60190619101920193019401950decided

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.

View the full empirical analysis of this case →

Mr. Chief Justice Bean

¶1delivered the opinion.

¶21. There is no bill of exceptions. The only question made on the appeal is that the contract between the plaintiff and Hamilton and the defendant, as alleged and set out in the complaint, is illegal and void as against public policy, and ought not to be enforced by the courts. The substance of the complaint is that the defendant agreed for a consideration paid by plaintiff and Hamilton to convey to Draper the legal title to his homestead after he should obtain title thereto from the United States. Such a contract is illegal and void because against the spirit and policy of the homestead law, and will not be enforced by the courts at the demand of either party thereto: Kine v. Turner, 27 Or. 356 (41 Pac. 664); Oaks v. Heaton, 44 Iowa, 116; McCrillis v. Copp, 31 Fla. 100 (12 South. 643); Dawson v. Merrille, 2 Neb. 119; Mellison v. Allen, 30 Kan. 382 (2 Pac. 97); Anderson v. Carkins, 135 U. S. 483 (10 Sup. Ct. 905, 34 L. Ed. 272).

¶32. If the illegality appears from the complaint or the plaintiff’s case, the court will, at any stage of the proceedings, dismiss the action, although such illegality is not pleaded as a defense, or insisted upon by the parties, and may have been expressly waived by them. It is an objection which the court itself is bound to raise in the due administration of justice, regardless of the wishes of the parties: Oscanyan v. Arms Co., 103 U. S. 261 (26 L. Ed. 539); Buchtel v. Evans, 21 Or. 309 *158(28 Pac. 67); Ah Boon v. Smith, 25 Or. 89 (34 Pac. 1093); Bradtfeldt v. Cooke, 27 Or. 194 (40 Pac. 1, 50 Am. St. Rep. 701); Miller v. Hirschberg, 27 Or. 522 (40 Pac. 506); Pacific Livestock Co. v. Gentry, 38 Or. 275 (61 Pac. 422, 65 Pac. 597) ; Gullison v. Downing, 42 Or. 377 (71 Pac. 70); Kreamer v. Earl, 91 Cal. 112 (27 Pac. 735).

¶43. The plaintiff’s counsel seems to think that the parties to this litigation were not in pari delicto; but, as said by Mr. Justice Brewer in a similar case (Anderson v. Carkins, supra) : “We are unable to see any distinction in moral status between the man who contracts for the perjury of another, and the one who contracts to commit such perjury.”

¶5The judgment is reversed, and the cause remanded, with directions to dismiss the complaint. Reversed.

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