¶1I propose to consider only so much of the case as involves the question whether Confederate treasury notes, which were paid for the land, were an illegal consideration. For, very clearly, if the consideration was illegal, the contract will not be enforced in this court. I shall treat it as a drylegal question.
¶2A contract is not void merely because it tends to promote illegal or immoral purposes. Hilliard on Sales, 376; Armstrong v. Toler, 11 Wheat., 258; Story Conflict of Laws, 258.
¶3A contract for the sale of a house and lot is not vitiated by the fact that the vendor knows, at the time of making it, that the vendee (206) intends it for an immoral or illegal purpose. Armfield v. Tate, 29 N.C. 259.
¶4A sale of goods is not void although the seller knows that they are wanted for an illegal purpose, unless he has a part in the illegal purpose.Hodgson v. Temple, 5 Taunt, 181; in which case MANSFIELD, C. J., says: "The merely selling goods, knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor of his just right of payment." In Dater v. Earl, 3 Gray, 482, the Court says: "If the illegal use to be made of the goods enters into the contract, and forms the motive or inducement in the mind of the vendor or lender *147 to the sale or loan, then he can not recover, provided the goods or money are actually used to carry out the contemplated design; but bare knowledge on the part of the vendor that the vendee intends to put the goods or money to an illegal use, will not vitiate the sale or loan, and deprive the vendor of all remedy for the purchase money."
¶5Where goods are bought from an enemy, even in his own territory, by a citizen of the United States, the sale is valid, and the price may be recovered, although the act might be a misdemeanor, and the property liable as prize. Coolidge v. Inglee, 13 Mass. 26. Authorities are abundant to the same effect.
¶6It will be seen, therefore, that a contract is not void because there is something immoral or illegal in its surroundings or connections. And yet it is equally certain that a contract is void when the consideration is illegal or immoral. What, then, is the criterion? Probably the following cases will show the dividing line: Goods were sold to a man who the vendor knew of the design: Held, that the contract intended to smuggle them and defraud the revenue, and was valid, and that the vendor could recover the price. Holman v. Johnson, Cowp., 341. Goods were sold to a man who intended to smuggle them and defraud the revenue, and the vendor not only knew of the purpose, but put (207) them up in a particular manner, so as to enable it to be done: Held, that the contract was void, and that the price could not be recovered.Briggs v. Lawrence, 3 Term R., 454. Now what is the difference between the two cases? None! — except that in the latter case it was part of the arrangement, and entered into the intent of the parties that the smuggling should be done. All these authorities show that the intent of the parties to accomplish the illegal thing is necessary to vitiate the contract; and therefore, in the case before us, unless the intent of the parties in their contract was to aid the rebellion, the fact that it did so (if it did), by giving currency to the notes, does not vitiate the contract.
¶7It is not pretended that the Confederate treasury notes were of novalue. It is conceded that they were of value, and that, at the time of the sale in 1862, less than two dollars of the notes would buy one dollar of gold. But it is contended that although of value they were illegal. In what sense were they so? In no case can the thing used as a consideration, of itself and independent of the intention of the parties, invalidate the contract, if the thing be of value; unless, perhaps, by express statute. There is nothing which may not be turned to mischief in its use, as poisons, deadly weapons and the like; but still their sale is a sufficient consideration to support a contract, unless it be the intent of the sale to do mischief. Randon v. Toby, 11 Howard U.S., 493, is very strong in point. In that case Africans had been *148 imported and sold as slaves, which is forbidden by law. The vendor brought suit for the price of one which he had sold, and the defense was that the consideration was illegal. The court says: "The plea that the notes were given for African negroes imported into Texas after 1833 is unavailable. On the argument here, it was endeavored to be supported on the ground that the notes were void, because the (208) introduction of African negroes into Texas was contrary to law. If these notes had been given on a contract to do a thing forbidden by law, undoubtedly they would be void. Neither of the parties had anything to do with the original contract, nor was their contract made in defiance of law. The crime committed by those who introduced the negroes into the country does not attach to those who may afterwards purchase them. As respects the defendant, therefore, he has received the full consideration of his notes." And then follows this strong language by the court: "If the defendant should be sued for his tailor's bill, and come into court with the clothes made for him on his back, and plead that he was not bound to pay for them, because the importer had smuggled the cloth, he would present a case of equal merits, and parallel with the present; but he would not be likely to have the verdict of the jury or the judgment of the court."
¶8So in the case before us, it is conceded that it was illegal to issue the treasury notes, just as it was illegal to import the negroes; but the illegality is in the issuing in the one case and in the importing in the other, and does not attach to those who afterwards use the thing issued or imported. It was insisted, in the argument before us, that the value of the treasury notes depended upon their circulation, and that the parties, by using them in their contract, aided in their circulation; so, in the case just quoted, the value of the importation of negroes depended upon their sale, and the transaction between the parties aided their sale, and in that way encouraged importation. The fact was undoubtedly true, yet it did not render the contract void. The illegality consisted in their importation, and not in their use after importation; so the illegality consisted in the issuing of the treasury notes, and not in their use after they were issued. If balls, which had been shot in battle, had been found and sold, it might as well be said that (209) the consideration was illegal, because they had been made for and used in the rebellion. In Coolidge v. Inglee, supra, the case was that in the War of 1812 a citizen of the United States bought goods of the enemy, contrary to law, and brought them to the United States and sold them, and when he sued the purchaser for the price, the defense was set up that it was unlawful for the plaintiff to buy the goods, and that, therefore, the consideration of the contract was illegal; but the court held the contrary. It is absurd to suppose that the goods *149 in that case, or the treasury notes in this, were illegal. Were not the goods precisely the same as if they had been bought of a friendly power? Certainly! The goods were not illegal, but the trading with the enemy was.
¶9This is the first time that this very important question has come before us for consideration. It has been well argued and patiently considered. We are not without important aid in determining the question. It is well considered by the Convention of 1865, and by the Legislatures which have since assembled. The Convention was prompt to declare that the rebellion and everything in aid of it was illegal. And it declared void all contracts which were in aid of it; but it did not declare void all contracts, the consideration of which were Confederate treasury notes; on the contrary, it plainly declared such contracts valid; that all contracts made during the war shall be deemed to be payable in money of the value of said notes; and directed the Legislature to prepare a scale to show, not that said notes were of no value, but to show what their value really was. And the Legislature did prepare such a scale. Now, if the defense set up in this case be good, then the Convention and Legislature ought to have made short work of it, and declared that all contracts should be deemed to be payable in Confederate treasury notes; and that such notes were illegal as a consideration to support a contract, and therefore that all such contracts were void. I do not consider the question, whether the (210) Convention or the Legislature had the power to validate or invalidate contracts, but their action is cited to show that those bodies regarded these notes as valuable considerations to support contracts. We thus have the concurrent opinions of the Judiciary, the Convention and the Legislature of the State, and an uninterrupted train of decisions both in England and the United States on kindred subjects, that Confederate treasury notes are not illegal considerations in contracts between citizens, unless it was the intent of the parties to the contract thereby to aid the rebellion.
¶10Our attention was called to an abstract of a case decided in Tennessee, in which Confederate treasury notes were held to be an illegal consideration. We regret that we have not the case at large. It seems to have been decided upon the ground that it was the money of rebels. Suppose it had been the coin of rebels. Doubtless there is some better reason than that assigned in the abstract which we have given. For it appears to be anencouragement to rebels! that they should be exonerated from a performance of their contracts, because of their participation in so great a mischief. If the Judiciary could be influenced at all by this consideration, it would hold them to a more rigid performance of all their undertakings. As a court, we neither favor nor oppress rebels, *150 but hold the scales of justice even. But we forbear further comment, lest we do our sister court injustice.
¶11PER CURIAM. Decree for complainant.
¶12Cited: Emmerson v. Mallett, post, 237; Turley v. Nowell, post, 302;Harrell v. Watson, 63 N.C. 460; Martin v. McMillan, Ibid., 487; Garrettv. Smith, 64 N.C. 95; Kingsbury v. Lyon, Ibid., 129; Smitherman v.Sanders, Ibid., 526; Haughton v. Meroney, 65 N.C. 125; McKesson v. Jones,66 N.C. 264; Wooten v. Sherwood, 68 N.C. 338; Neaves v. Mining Company,90 N.C. 415; Hargrove v. Adcock, 111 N.C. 171; Lupton v. Lupton,117 N.C. 31; Fulcher v. Fulcher, 122 N.C. 102; Combes v. Adams,150 N.C. 68; Stephens v. Lumber Co., 160 N.C. 109.
¶13(211)
¶14The right of the plaintiff to relief does not rest alone upon the ordinance of the Convention or the act of the *143 Legislature, but upon the broad ground that the courts are bound to administer justice and enforce the execution of contracts.
¶15In 1862 the defendant agreed to sell to the plaintiff a house and lot, and received $2,500 in Confederate treasury notes as the consideration, and put him in possession. The contract had no special political significance, and there is no averment that it was entered into with an intent to give aid to the rebellion; so it is to be taken as a dealing in the ordinary transaction of business. The plaintiff bought the house and lot because it suited him. The defendant took the Confederate notes because she needed funds.
¶16It is said that every dealing in Confederate treasury notes gave them credit and circulation, and consequently aided the (201) rebellion; so every such dealing was illegal and not fit to be enforced by the courts, without reference to the intent of the parties. The proposition is general — every man and woman who, in the ordinary course of business, received a Confederate note did an illegal act, tainted with treason. It embraces all contracts, as well contracts executed as executory; for if true as to one, it is also true as to the other, and it aims a blow at all dealings among our people during the war, and upheaves the foundations of society. I do not believe the proposition can be maintained by any authority or any principle of law.
¶171. That may be conceded that if, at the outbreak of an insurrection, parties to contracts, with a view of aiding the cause by giving credit and circulation to its paper, receive it as money in their dealing, such contracts are illegal.
¶18But that is not the case under consideration.
¶19In 1862 the contest had assumed the magnitude and proportions of war; each party in territorial limits had the boundaries of a mighty nation, and each party counted its people by millions. The "Confederate States" was recognized by the nations, and by the United States itself, as a belligerent power, entitled to the rights of war; and, in the exercise of its powers, it had issued paper as the representative of money, which excluded all other currency, and constituted the only circulating medium ofthe country. The government of the United States was unable to protect the people, and there was no currency but Confederate treasury notes. In this condition of things, was every man to stop his ordinary avocations and starve, or else be tainted with treason and deemed guilty of an illegal act if he received a Confederate treasury note?
¶20The Attorney-General of the United States, in his opinion on the subject of disfranchisement, uses this language: "Officers in the rebel States who, during the rebellion, discharged official duties, (202) not incident to war, but in the preservation of order and the *144 administration of law, are not to be considered as thereby engaging in rebellion. The interests of humanity require such officers for the performance of such official conduct in time of war or insurrection as well as in time of peace, and the performance of such duties can never be considered as criminal." Was a judge to cease to do these "duties required by the interests of humanity" — "the performance of which can never be considered as criminal" — or was he to perform the duties and starve, rather than commit an illegal act by receiving his salary inConfederate treasury notes? Was the merchant to close his store, the blacksmith and shoemaker to quit work, and the farmer to let his tobacco and surplus grain rot on his hands, and allow his family to suffer for clothing and the other necessaries of life, or do an illegal act by receiving Confederate notes? Really, unless the receiving of such notes can be connected with a criminal intent to aid the rebellion, the question seems to me too plain to admit of argument. A naked statement exposes the absurdity of the proposition. The courts must act on the presumption that Confederate notes were received in ordinary dealing — not for the purpose of aiding the rebellion, but because there was no other currency.
¶212. Look at the subject in another point of view: At the close of the war the President granted amnesty and pardon to all, save a very few individuals. Congress by the Reconstruction Act disfranchised only those who, having taken an oath to support the Constitution of the United States, afterwards engaged, actively, in the rebellion, and it has refused to enforce the rigorous measure of confiscation. On what principle, then, can it be that the courts are called upon to take up the matter "at the little end," to search into the private dealings of the people and all the ramifications of ordinary business, and declare (203) of no force — in effect confiscate — all contracts based upon the consideration of Confederate notes? What good can result from this action of the courts? It can have no effect upon the rebellion, for that is over. It can have no effect upon the future, for "necessity knows no law," and whenever a condition of things occurs, in which the people must use the only currency of the country or starve, the currency will be used. The idea of the courts assuming the duty of preventing civil wars by holding that it is illegal to receive the paper of rebels in ordinary business transactions, when there is no other currency, that such contracts are not fit to be enforced, presents to my mind a palpable absurdity. So, what good will be done by this action of the courts? None, save only to show, on the part of the courts, a detestation of treason by treading on the extremities of the monster after it is dead.
¶223. In Blossom v. Van Amringe, ante, 133, the maxim, ex turpi causa*145actio non oritur, was pressed on the court, and it was insisted that, as the parties had made a transfer of property, in fraud and deceit, withan intent to evade the confiscation acts of the government of the Confederate States, the case fell under the maxim. The court says: "The objection would no doubt have been fatal if taken before a court of thede facto State government, while it formed a part of the Confederate States; but this court is a coordinate branch of a rightful government, forming a part of the United States, and can not entertain such an objection." In our case the matter is reversed. The turpitude, if any, was aimed at the United States, and the maxim applies, provided there be the criminal intent. That is the question! I deny the intent — there is no evidence of it or anything from which it can be implied. It can not be held that the mere receiving a Confederate note was illegal and base, without involving in the imputation of baseness every man and woman in the State! The minister of the gospel, the judge, who received his salary; the physician, the merchant, the mechanic, the (204) farmer, who carried on his ordinary business, the poor seamstress, who, at the end of the day, received her hard-earned wages — were all guilty of an act so base that the doors of the courts of justice must be shut against them! The proposition is monstrous. During the war a farmer should not have made more grain than enough to support himself and family; making a surplus was illegal — it aided the rebellion. If every man had quit work the rebel army could not have been sustained, the war would have been stopped by starvation. We were told in the argument that "gold, as well as iron, is a sinew of war." It may be added, meat and bread are also sinews of war. Reductio ad absurdum!
¶234. But, it is said, the consequences of holding all such dealings to have been illegal will not be so grievous after all, for, in its practical application, the maxim will only make void executory contracts. The principle, if a sound one, evidently includes all contracts, executed as well as executory, and the admission that in practice it can only be made to reach the latter demonstrates the impotence and absurdity of this action of the courts as a means of putting a stop to civil wars. Let us see how it is to operate: A man buys a tract of land, pays for it in Confederate notes and takes a deed. The court can not reach him, for it is met by the maxim,"in pari delicto melior est conditio defendantis"; so he keeps the land, not because he is innocent, but because the court can not take it from him and restore it to the original owner, who is equally guilty. If one has paid off a bond in Confederate notes, whether the creditor will be allowed to sue on the original debt, which is not tainted with this "turpi causa," is a problem that I will not undertake to solve. *146
¶24But supposing the bond is only paid in part, the payment must be rejected; for, being in Confederate notes, it is of no more legal effect than if made in counterfeit money. Or suppose, in our case, that (205) Mrs. Hooker brings ejectment for the land; the contract has been in part performed, and the defendant is in possession, will the court shut its doors against her, on the maxim, in pari delicto?
¶25In short, is the practical application of this novel principle to be allowed to cover all intermediate cases, when the contract has not been fully executed, or is it to be confined to contracts wholly executory, where the purchaser has paid the price, but, in the simplicity of his innocence, has neglected to take a deed, and has not even taken possession? The amount of it is: all who required the Confederate notes to be paid down, or who have taken deeds and acquittances under seal, although equally guilty, are to go unpunished, and only those who gave credit to their neighbors, or who neglected to take deeds, are to be made victims to the vengeance of the law, while the remiss debtors and dishonest vendors are to be the sole gainers, although equal participants in the illegal act. Lame and impotent conclusion!
¶26Thus encouragement is to be given to dishonesty, justice is not to be administered, and the people of the country are to be involved in utter perplexity and confusion, in order to make a useless show of zeal on the part of the courts "to punish rebels."