Woods v. Armstrong. etc., Downing v. Ringer, 7 Mo. 585; to a note for the sale of the office of dep uty sheriff, Carlton v. Whilcher, 5 N. H. 196; to a sale of baled hay not legally branded, Brackett v. Hoyt, 29 id. 264; to a note for illegal sale of liquor: Coburn v. Odell, 30 id. 540; to a note for lottery tickets, Seidenbender v. Charles, 4 Serg. & R. 159; Biddis v. James, 6 Binn. 329; to a contract for sale of lands under the Connecticut title, Mitchell v. Smith, 1 Binn. 110; to a contract in restraint of bidding, Hale v. Henderson, 4 Humph. 199; to a note for unsealed leather, Elkins v. Parkhurst, 17 Vt. 105; to an action of trover for counterfeit money, Spalding v. Preston, 21 Vt. 9; for carriage of liquors, Territt v. Bartlett, id. 184; for sale of liquors, Bancroft v. Dumas, id. 457; to a bond for "shinplasters," Yeates v. Williams, 5 Ark. 684; to a contract for carriage of mail' matter, Hill v. Mitchell, 25 Ga. 704; to an action for wages by an unlicensed steamboat engineer; The Pioneer, Deady, 72; to an action for overdriving a horse let on Sunday; Berrill v. Gibbs, 1 Penn. L. J. Rep. 313; but see Nodine v. Doherty, 46 Barb. 59; to action by an alderman for hire of carriages furnished to the city under a statute that it shall not be lawful for any member of the common council to be interested in any city contract, Smith v. City of Albany, 7 Lans. 14. The contract will not be declared void merely because the law declares a pen-alty for doing the act, where it is not prohibited, unless it is also contra bonos mores. Solomon v. Dreschler, 4 Minn. 278. In respect to innocent purchasers, contracts in contravention of statutes will ⠀ not be held void unless such appears to be the intent, but that intent will be presumed unless the contrary can fairly be inferred. So, held that a sale of.. city lots before the plat had been deposited according to law is not void, but passes title. Bemis v. Becker, 1 Kan. 226. See, also, Strong v. Darling, 9 Ohio, 201; Watrous v. Blair, 32 Iowa, 58. So, of a note for slaves brought into a State contrary to law. Harris v. Runnels, 12 How. 80. Unlicensed dealings in bills of exchange, not being expressly prohibited, although punishable, contracts for sale and purchase of them are legal. Lindsey v. Rutherford, 17 B. Monr. 245. Under a statute merely prescribing that a cord of wood shall be of certain dimensions, a contract for the sale of wood less than a certain length is not void. Coombs v. Emery, 14 Me. 404. It is the benefit of the public and not the advantage of the defendant to an action that is to be considered in cases in which one or more of several parties in pari delicto rely for defense upon the illegality of the transaction out of which the claim arises, and in such cases the presumption is in favor of the transaction; and if it be susceptible of two meanings, the one legal and the other not, that interpretation will be put upon it, which will support and give it operation. Bibb v. Miller, 11 Bush, 309. The general rule that courts will not enforce contracts prohibited by statute, or allow the recovery of money paid in pursuance of them, but will leave parties in pari delicto without remedy, is not applicable where the contract is prohibited for the mere protection of one of the parties against an undue advantage which the other party is supposed to possess. Scotten v. State, 51 Ind. 52. So, where the law provided that eight hours should be a lawful day's work, and that a stipulation to that effect should be inserted in all public contracts, an omission to insert this provision in a public contract was held not to vitiate it, the statute not declaring that the omission should have such effect. Babcock v. Goodrich, 47 Cal. 509. The court say: "The law was passed for the protection of the laborer; an officer of the county cannot refuse to carry out a Davis v. Swanson. contract because of an omission which renders the contract more favorable to the county." It by no means follows that the mere knowledge of the illegal purpose for which an article may be hired or purchased by one person from another is sufficient to avoid the contract, as to one of them who is in no way connected with or interested in the illegal object or purpose to which the thing hired or sold was to be applied, unless such illegal purpose in some way enter into or form part of the contract. The use to which the party hiring or buying proposes to himself to apply the property after he gets it, surely does not necessarily enter anto or form any part of the contract. The mere knowledge of such purpose, which may or may not be carried into effect, seems to be too remotely connected with it to avoid the contract or preclude a recovery upon it. McKinney v. Andrews, 41 Tex. 365. To defeat a recovery on a contract for sale of liquors made in another State y to be sold in this, it must appear that the sellers had knowledge of our law, and made the sale with intent to enable the purchaser to violate it. Knowledge of the law alone would be insufficient. Second Nat. Bank of Louisville v. Curren, 36 Iowa, 555. Where a contract in violation of statute is void, the subsequent repeal of the statute does not render it valid. Banchor v. Mansel, 47 Me. 58; Milne v. Huber, 3 McLean, 212· Gilliland v. Phillips, 1 S. C. 152. Otherwise if the contract is not immoral. Central Bank v. Empire Stone Dressing Co., 26 Barb. 23; Washburn v. Franklin, 35 id. 600; Curtis v. Leavitt, 15 N. Y. 85. DAVIS V. SWANSON. (54 Ala. 277.) Voluntary conveyance - Not avoidable by grantor's administrator. A voluntary conveyance prejudicial to creditors is valid as between the parties, their personal representatives and heirs, and can only be avoided by pur chasers or creditors. The grantor's administrator cannot set it aside. HE facts sufficiently appear in the opinion. THE J. N. Williams, for appellant. M. B. Welborn, contra. BRICKELL, C. J. The bill filed by the appellee is devoid of equity, and should have been dismissed by the chancellor, mero motu. A voluntary conveyance, or a conveyance made with the intent to hinder, delay and defraud creditors, can be avoided only by creditors and purchasers. As between the parties, their per Welsh v. Phillips. sonal representatives and heirs, such conveyances are valid. An executor or administrator is the representative of the testator or intestate, succeeding to his rights, and of consequence capable of maintaining only such suits as he could maintain. He is not the representative of creditors, authorized to pursue property fraudulently aliened by the decedent, which they may pursue and condemn to the satisfaction of their demands. Marler v. Marler, 6 Ala. 367; Roden v. Murphy, 10 id. 804; Walton v. Bonham, 24 id. 513. A voluntary conveyance, or a conveyance made with the intent denounced by the statute of frauds, binding the intestate, is equally obligatory on his personal representative. The whole purpose of the bill is to avoid a voluntary conveyance made by the intestate because of its prejudice to creditors, whose debts existed when it was made. The creditors have ample remedies to redress any injury they may sustain from the conveyance, but the appellee, in his representative character, cannot assert them. The decree of the chancellor is reversed, and a decree here rendered dismissing the bill at the costs of the appellee in this court, and in the Court of Chancery. Decree reversed. WELSH V. PHILLIPS. (54 Ala. 309.) Mortgagee in possession — Effect of conveyance by — Merger. A conveyance of lands by a mortgagee in possession after default carries the legal title, although the debt is not assigned, and such a conveyance with warranty amounts to an equitable assignment of the debt. Where a mortgagee of lands, in possession after default, conveyed the prem. ises in fee simple, with warranty to the mortgagor, in trust for the separate use of the mortgagor's wife for life, with remainder to her children, and the mortgagor joins in the deed, covenanting to accept and execute the trust, and takes possession, and the mortgagor and his wife subsequently convey the premises to another, who takes possession; held, in an action by the children of the wife, after her death, that they are entitled to the premises as against such grantee. A Welsh v. Phillips. CTION to recover real estate. The premises in question had been mortgaged by Nicholas Welsh to John S. Welsh, by mortgage not reserving possession to the mortgagor. The mortgagee having come into possession, conveyed the premises, after default, in fee simple to said Nicholas, in trust for the separate use of Clara, the wife of the latter, for her life, with remainder to her children. Nicholas joined in this conveyance, covenanting to accept and execute the trust, and entered into possession. Subsequently he and his wife conveyed the premises in fee simple to one Cocke, who took possession, and under whom the defendants claimed to hold. Clara dying subsequently, her children, the appellants brought this action. The court charged that they could not recover, and they assigned this as error. Brooks, Haralson & Roy and Reed & May, for appellant. John F. Vary, contra. BRICKELL, C. J. The question most fully discussed by counsel, and which, we suppose, controlled the judgment of the Circuit Court, the effect aud operation of a conveyance absolute in form and terms, by a mortgagee in possession of the mortgaged premises, without an assignment or transfer of the mortgage debt, has not been the subject of express adjudication in this court. In Duval v. McLoskey, 1 Ala. 737, the court, citing the decisions in New York, which hold a transfer of an interest in the mortgaged premises without an assignment of the debt, is a nullity-the mortgage being a mere incident to the debt, and adopting them as correct expositions of the law, say nevertheless: "In concluding that a mortgagee cannot assign the right to the mortgaged property without also assigning the debt to which it is an incident, we do not desire to be understood as intimating that it is incompetent for the mortgagee to relinquish, by contract, the possession to a third person, at any time, until the debt is paid." Whether a mortgage may be an assignment to a stranger of the mortgage, or by a conveyance of the premises, unattended by a transfer of the mortgage debt, pass the legal estate, is a question on which the authorities in this country are in irreconcilable conflict. In New York, New Hampshire and some other States which have followed their decisions, such a conveyance or assignment would be void, and one Welsh v. Phillips. entering under it would be a trespasser as against the mortgagor. In other States, the assignment or conveyance, if in proper form to pass an interest in real estate, is treated as a conveyance of the legal estate, passing to the assignee or grantee, the right of the mortgagee to enter. 2 Washb. Real Prop., § 4, ch. 16. The correctness of the one decision or the other depends on the theory of a mortgage which may prevail. If it is regarded as a mere security for a debt, a chattel interest until foreclosure, the mortgagor continuing the real owner of the fee, an assignment of the mortgage or a conveyance by the mortgagee of the premises, not intended, and incapable of operation as a transfer of the debt, may be treated as void, not passing any estate or interest in land. That, however, notwithstanding what is said in Duval v. McLoskey, supra, is not the theory of a mortgage which the current of our decisions has recognized, and by which they haye been controlled. A mortgage is more than a mere security for a debt-it creates a direct, immediate estate in land—a fee simple, unless otherwise expressly limited. The estate is conditional-annexed to the fee is a condition which may defeat it. The mortgagee, if in the conveyance there is not a reservation of the possession to the mortgagor, until default in the performance of the condition, has the immediate right of entry, and may eject the mortgagor or his tenants. Duval v. McLoskey, supra. If the mortgagor is permitted to remain in possession, he is the mere tenant at will of the mortgagee. After the law day, and default in the performance of the condition, at law, the estate is absolutely vested in the mortgagee-the fee is freed from the condition annexed to it. Nothing remains in the mortgagor but the equity of redemption, of which courts of law take no notice. Paulling v. Barron, 32 Ala. 11; Barker v. Bell, 37 id. 358. Before default, all that remains in him is the right to perform the condition and thereby restore his original estate. An assignment of the mortgage debt, without an assignment of the mortgage, will not pass the legal estate; that remains in the mortgagee in trust, an equitable security for the payment of the debt. In Center v. P. & M. Bank, 22 Ala. 751, it is said the mortgage is but an incident and passes in equity to the assignee of the debt. But the legal estate resides in the mortgagee until the mortgage is assigned. In Graham v. Newman, 21 id. 498, it is said, the assignment of a mortgage debt operates in equity an assignment of the mortgage, entitled the assignee to use the name of the mortgagee to enforce VOL. XXV-86 |