The plaintiff in this case appears as the guardian of John Rourke, Jr. It is, in point of fact, the suit of John Rourke, Jr., appearing by his guardian Samuel Upton, and the case must be determined on the same principles as if the suit were, in form, the suit of John Rourke, Jr.
It is substantially alleged in the bill, that the plaintiff's father and mother, — John Rourke and Johannah Rourke, — under whom he claims and whose title he has, in their lifetime executed a mortgage of the tract of land in controversy to the defendant; that said mortgage was given to secure a note, the consideration of which was the price of intoxicating liquors unlawfully sold by the defendants to the plaintiff's ancestor; that the note, therefore, is void, and the mortgage also, — both being given for the purpose of carrying out the unlawful trade. The case comes here to be heard on the bill and answer, and we must, I suppose, assume that whatever is alleged in the bill, and not denied in the answer, is true, and that the answer is true.
From the allegations in the bill and answer, I infer that the contract, in the execution of which the note and mortgage were given, was a *Page 287 contract, the object of which was the furtherance and promotion of the sale of ale, which the answer admits to have been intoxicating liquor, of which the sale was prohibited by law.
The bill alleges and relies upon this unlawful contract, but does not allege, as I think it should in order to make out the case, that Mrs. Johannah Rourke was ignorant of the nature of the contract which she assisted to execute and carry out by signing the note in question. It seems to me beyond doubt that if Johannah Rourke were the plaintiff here, she would be obliged to clear her skirts from all stain from this illegal transaction, and I cannot see how her death should relieve her representative from the burthen [burden] which I think she must have borne.
The plaintiff invokes the aid of the court to relieve him from the effects of that unlawful contract. He asks the court to interfere, and set aside for his benefit a deed made by his ward's ancestor, for the purpose of carrying out this contract.
The case of White v. Hunter, 23 N.H. 128, appears to me to be exactly in point. There, as here, the plaintiff was seeking the aid of the court to relieve him from the consequences of his ancestor's unlawful contract. The maxim, in pari delicto potior est conditio defendentis, was held to apply. If, as I should infer from the case, the defendants are not in actual possession, and should hereafter find it necessary to invoke the aid of the court to enable them to recover possession, the same maxim would probably be held applicable.
I think the bill must be dismissed unless the parties, having obtained leave in the circuit court, shall amend their pleadings as they shall be advised, and go to trial.
LADD, J., concurred in the result.
Decree accordingly.