This action was commenced on the 10th March, 1900, for the purpose of foreclosing certain mortgages, both upon real and personal property held by plaintiffs against the defendant, A.T. Newell. The other defendants were made parties, under the allegation that each of them claimed to have some interest in the real estate covered by the mortgages held by the plaintiffs. All of the defendants except W.A. Neal, who was made a formal party, as a judgment creditor, referred to in the complaint, for the costs of certain officers of the Court, enrolled in his name, answered, setting up their respective claims as liens, either by judgment or mortgage, upon the real estate covered by the mortgages held by the plaintiffs; the defendant, J.W. Hardin, however, after setting forth his connection with the subject matter of the suit, as will be hereinafter stated, alleging that he had no further interest in the premises described in the complaint, demanded that, as *Page 67 to him, the complaint be dismissed, with costs. Upon hearing the pleadings, an order was granted, that it be referred to a referee to ascertain and report the amount due on the debts secured by the several mortgages held by the plaintiffs, as well as any other liens that may be established hereunder against the mortgaged premises of A.T. Newell, one of the defendants, and their respective priorities. It was further ordered, that the referee hear and determine all the issues of law and fact raised by the pleadings, and that he report his conclusions, together with the testimony taken upon such issues, to the Court. In pursuance of this order, the referee took a large amount of testimony, which is set out in the "Case," and on the 11th day of October, 1900, filed his report, a copy of which is set out in the "Case," which will be incorporated by the Reporter in his report of this case. To this report the plaintiffs as well as the defendants, A.T. Newell, the Bank of Anderson and J. Matt. Cooley, excepted, and the case was heard by his Honor, J.H. Hudson, sitting as special Judge, upon said report and exceptions, who subsequently filed his decree and judgment, bearing date the 12th of December, 1900 a copy of which is set out in the "Case." From this judgment the defendant, J. Matt. Cooley, alone appeals — basing his appeal upon numerous exceptions set out in the record. A copy of the judgment of the Circuit Judge, together with the exceptions thereto, will be included in the report of this case by the Reporter.
We do not propose to consider these exceptions seriatim, but will consider what we understand to be the questions raised thereby, which may be substantially stated as follows: 1st. Whether the fact that the mortgage given by the defendant, Newell, to the defendant, Hardin, was a part of a scheme devised by the appellant, Cooley, to evade the payment of his taxes due to the State and the county of Anderson, rendered it incapable of being enforced in this action against the said Newell. 2d. If so, whether the appellant, Cooley, is entitled to enforce either his note or the mortgage given to secure the payment of said note by the defendant, *Page 68 Newell, to the appellant, Cooley, on the 23d of December, 1896, in this action, after the said note had been cancelled and given up by the said Cooley to the said Newell, and after the said mortgage had been marked satisfied on the record. 3d. Whether the appellant, Cooley, is the legal owner and holder of the above mentioned note and mortgage given by Newell to Hardin. These, as we understand it, are the controlling questions in this case, though there are other subordinate questions, which will be considered in connection with the general questions stated above.
Before proceeding to the consideration of the several questions, the solution of which will determine this case, it may be as well for us to say that, so far as the several questions of fact are concerned, we agree with the Circuit Judge in the conclusions which he reached, and we do not think it would serve any useful purpose for us to discuss these questions in this opinion, as such a discussion would extend the opinion to an unreasonable length. But we desire to say that a careful examination of the voluminous testimony set out in the "Case" has satisfied us that the conclusions of fact reached by the Circuit Judge are fully supported by the preponderance of the evidence, and in every instance except one (if, indeed, that be an exception), are in accordance with the findings of fact by the referee; for the referee, in speaking of the transaction whereby Cooley induced Newell to execute his note and mortgage to Hardin by "false and fraudulent" representations, "made with the intent and purpose to defraud the State of South Carolina and the county of Anderson out of the taxes or revenue that would be due thereon," says that Newell "knew, or at least had in his mind at the time that this transaction was effected, that was Cooley's scheme;" while the Circuit Judge says that he does not think that Newell knew but only suspected that Cooley's purpose was, in making this transaction, to evade the payment of his taxes. Our own view of this particular matter, based upon a careful examination of the testimony, is that Newell did have a strong suspicion that Cooley's *Page 69 object, in persuading him to make this transaction, was to evade the payment of his taxes; yet, being at the time indebted to Cooley in quite a large sum of money, he was afraid to offend his creditor by thwarting his scheme, and, therefore, he reluctantly, as the testimony shows, did enter into the transaction. But, as we shall presently show, it makes no difference whether Newell knowingly participated in Cooley's fraudulent scheme or not, so far as the present inquiry is concerned.
In connection with the questions of fact, we will next consider the admissibility of certain testimony received over the objection of appellant, to wit: the testimony as to other transactions of a similar kind with McCoy, Ellison and Keaton, claimed to be for the same fraudulent purpose on the part of the appellant, Cooley, to evade the payment of his taxes. The ruling of the Circuit Judge upon this point is fully sustained by the authorities. InCastle v. Bullard, 23 How. (U.S.), at page 186, it is said: "Decided cases have established the doctrine that cases of fraud like the present are among the well-recognized exceptions to the general rule, that other wrongful acts of the defendant are not admissible in evidence on the trial of the particular charge immediately involved in the issue. Similar fraudulent acts are admissible in cases of this description, if committed at or about the same time, and when the same motive may reasonably be supposed to exist, with a view to establish the intent of the defendant in respect to the matters charged against him in the declaration." To the same effect, see Lincoln v. Claflin, 7 Wallace, 132, and Butler v.Watkins, 13 Wallace, where, at page 464, it is said: "Actual fraud is always attended by an intent to defraud, and the intent may be shown by any evidence that has a tendency to persuade the mind of its existence. Hence, in actions for fraud, large latitude is always given to the admission of evidence. If a motive exists prompting to a particular line of conduct, and it be shown that in pursuing that line a defendant has deceived and defrauded one person, it may *Page 70 justly be inferred that similar conduct towards another at about the same time and in relation to a like subject, was actuated by the same spirit." Now, the testimony in question tended to show that the appellant had, in transactions with McCoy, Ellison and Keaton, resorted to similar devices to evade the payment of his taxes, the name of one Hall being used instead of that of Hardin, as in this case. We do not think, therefore, that there was any error on the part of the Circuit Judge in holding this testimony admissible.
Coming, then, to the consideration of the first question above stated — the most important question in the case — the testimony leaves no reasonable doubt that the appellant, Cooley, being the owner and holder of a valid note and mortgage to secure the payment of a large sum of money, executed by the defendant, Newell, on the 23d of December, 1896, induced his debtor, Newell, by "false and fraudulent" representations, to sign another note and mortgage to the defendant, Hardin, for the same amount, and purporting to have been executed on the same day, though the undisputed fact is that such last mentioned note and mortgage were not signed by Newell until the 5th day of November, 1897, and were never, in fact, delivered to the said Hardin; as the undisputed fact is that Newell never owed Hardin a single cent of money. The testimony abundantly shows that the sole purpose of this transaction was to enable Cooley, who was a resident and taxpayer of the county of Anderson, to evade the payment of his taxes, by putting this much of his choses in action in the name of Hardin, who was a non-resident of Anderson County, and thus evade the payment of taxes thereon, just as he had done with others of his choses in action by putting them in the name of Hall, who was also a non-resident. So that the practical inquiry presented by the facts of this case is whether a court of equity will lend its aid in the enforcement of a contract entered into for such a purpose, by allowing the appellant to set up the note and mortgage given by Newell to Hardin, of which the appellant claims to be the assignee, as *Page 71 a prior lien on the premises covered by the mortgages held by the plaintiffs. Both reason and authority require that this question should be answered in the negative. In Cooley on Taxation, 299, in note 4, that eminent author, in speaking of the various modes provided for the enforcement of the payment of taxes, uses this language: "An important principle of the common law may also be called an assistant to the collection of taxes. It is this: that all contracts and arrangements made for the defeat or evasion of the revenue laws of a country are illegal, and the Courts will give the parties no remedy in respect to them." Citing a number of cases to support this principle. So, also, in 2 Pom. Eq. Jur., sec. 940: "The proposition is universal that no action arises in equity or at law from an illegal contract; no suit can be maintained for its specific performance, or to recover the property agreed to be sold or delivered, or the money agreed to be paid, or damages for its violation." Again, in sec. 935 of the same volume, it is said: "If a contract does unduly interfere with governmental function, or with the relations of the citizen towards his own government in any of its departments, whether the interference be direct or indirect, such agreement is illegal, whatever form it may have assumed." It is only necessary to cite some of the cases to show that these fundamental general principles have been recognized and applied in actual practice to such transactions when brought before the Courts. In Oscanyan v. ArmsCompany, 103 U.S. 261, the plaintiff, who was the consul general of the Turkish government, resident here, brought an action against the defendant company, who was engaged in the manufacture of fire-arms, to enforce a contract with the defendant, whereby he was to receive a large sum of money for the use of his influence in favor of the defendant company in inducing an agent of said government to purchase arms from said company; an it was held that such a contract could not be enforced in the Courts of the United States. The plaintiff in error claimed a reversal of the judgment below in favor of the defendant, upon three *Page 72 grounds — the first of which, involving a question of practice not pertinent to the present inquiry, need not be stated or considered. The second ground was that the illegality of the contract not having been pleaded as a defense, could not be considered; and the third ground was that the Court below erred in holding that the contract was illegal. In considering the second ground, it was held that the fact that the illegality of the contract had not been pleaded, was of no consequence. Mr. Justice Field, in delivering the opinion of the Court, says: "The objection to the recovery (based upon the illegality of the contract) could not be obviated or waived by any system of pleading, or even by the express stipulation of the parties. It was one which the Court itself was bound to raise in the interest of the due administration of justice. The Court will not listen to claims founded upon services rendered in violation of common decency, public morality or the law;" and quotes with approval the following language used by Mr. Justice Swayne, in delivering the opinion of the Court in Coppell v. Hall, 7 Wall., 542: "The defense is allowed not for the sake of the defendant, but of the law itself. The principle is indispensable to the purity of its administration." See, also, to the same effect, the case of Sheldon v. Pruessner, 22 Lawy. Rep. Ann., 709 — a Kansas case — in which the facts are very much like the facts in the present case. In the head notes of that case, prepared by Horton, C.J., who delivered the opinion of the Court, the points decided (so far as they affect our present inquiry) are stated as follows: "The Courts in the due administration of justice will not enforce a contract in violation of law, or permit a plaintiff to recover upon a transaction against public policy, even if the invalidity of the contract or transaction be not specially pleaded. Where a mortgagee, residing in this State, owns an has in his possession a note for $1,700, secured by a mortgage upon real estate in this State, and pretends to transfer by merely indorsing his name thereon, but without actually delivering the same, such note and mortgage, to his father in another State, *Page 73 without any demand being made upon him to do so, to secure $450 and interest for prior borrowed money, but really for the purpose of evading the payment of taxes justly due the State. Held, that in an action brought in the name of the father to recover upon the note and mortgage, the mortgagee, on account of his acts in evading the payment of taxes, and thereby defrauding the revenues of the State, cannot have any recovery in the name of his father or otherwise on any part of the note or mortgage belonging to him. Held, also, that if the father did not have any knowledge of such alleged transfer, and his name is used to collect such note and mortgage without his consent, or if he merely accepted the note and mortgage as a particeps criminis to defraud the revenue laws, no recovery of any amount thereon can be had in his name." In view of this language of the Chief Justice, as well as the language he uses and the authorities which he cites in the body of his opinion, we do not think the suggestion made in the note appended to that case, as reported in that very valuable publication, Lawyers Reports, annotated, to the effect that certain points appear to have been left open, is warranted by anything that appears in the case. On the contrary, it seems to us that a careful reading of the case will show that it is a decision directly in point, in the present case; and while not binding upon us as authority, is worthy of high consideration, and is in conformity to the general principles laid down by standard text-writers, from whom we have quoted above. So, also, the case of Drexler v. Tyrrell,15 Nev., 114, cited by the Circuit Judge in his decree, seems to be very much like the present case, and to sustain the view which we have adopted; but as the writer of this opinion has not, at present, access to that case, we do not rest our conclusions upon it, especially as it is stated in the argument of counsel for appellant to have been "severally criticized" by Mr. Jones in his work on Mortgages. Our own case of Gist v. Telegraph Co., 45 S.C. 344, in which it was held that a person engaged in the purchase or sale of cotton for future delivery — "dealing in futures." as it is comprehensively *Page 74 termed — has no cause of action for failure to deliver promptly a telegraphic message relating to such a dealing because it was in violation of law, rests upon the same general principle which controls the present case. The case of Fairly v. Wappoo Mills, 44 S.C. 227, which has been cited to sustain appellant's contention, is very different from the present case. In that case, the plaintiff brought an action to recover his commissions as a broker upon the sale of certain goods of the defendant, and one of the defenses set up to the action was that the plaintiff had not procured a license as broker, as required by one of the ordinances of the city of Charleston. The defense was not allowed, because there was no provision in the statute authorizing the city council to pass such an ordinance, making it unlawful for a person to engage in any business for which a license may be required, and, therefore, the plaintiff's cause of action was not based upon and did not grow out of any illegal act. Without going over the reasoning of the Court in that case, which extends from the last paragraph on page 250 to page 256, it is very obvious from what is there said that the Court expressly conceded, "that if the law requiring a license actually and in terms declares that the business in question is unlawful unless the requirement of a license is complied with, then the carrying on of the business without such license is prohibited, and a contract made under it cannot be enforced in a court of justice," or even if "the statute does not in express terms declare the act unlawful or prohibit the carrying on of the business in question without a license, yet if it appears from a consideration of the terms of the legislation in question that the legislative intent was to declare the act unlawful, or to prohibit the carrying on of the business without a license, then no contract in pursuance of such business can be enforced." It is very obvious from this language, as well as from a full consideration of all the views presented in the opinion of the Court, that the case of Fairlyv. Wappoo Mills lends no support whatever to the contention of appellant; but, on the contrary, expressly recognizes the *Page 75 principle upon which we rest our decision in this case, and that the Court rested its decision in that case, so far as the point now under consideration is concerned, upon the ground that such principle was not applicable to that case, for the reason that neither the statute authorizing the city council to impose a license tax nor the ordinance passed in pursuance of such authority contained any provision indicating any legislative intent to make it unlawful for a broker to carry on his business without a license; but was simply intended to be a mode of raising a revenue for the city — a tax, pure and simple — and that the penalty imposed was designed simply for the purpose of affording the means of enforcing the payment of such tax, and not for the purpose of declaring it unlawful to carry on the business without a license. For, on the contrary, the terms of the ordinance plainly recognized the right of a person to carry on the business of a broker without a license — at least, for a part of each year.
It is contended, however, by the appellant, that the defendant, Newell, being in pari delicto with the appellant, Cooley, cannot avail himself of this defense to the claim of the appellant. In the first place, we do not think that the testimony shows that Newell was in pari delicto. The most that can be said is that he knew of the illegal and fraudulent purpose of the appellant in inducing him, by false and fraudulent representation, to give the note and mortgage to Hardin, of which the appellant is seeking to avail himself in this case by setting it up as a prior lien on the premises covered by the mortgages held by the plaintiffs; but it has been held in the case of Wallace v. Lark, 12 S.C. 576, and in the authorities cited in that case, that mere knowledge of the fraudulent and illegal purpose for which a contract has been entered into by another, is not sufficient to defeat an action on such contract. There must be something more — something to indicate an intent to aid or promote the fraudulent or illegal purpose; and of this there is no evidence to indicate such an intent on the part of Newell. But even if Newell was in pari delicto with Cooley, that would not affect the *Page 76 question. The defense is not allowed for the benefit of the defendant, but solely in the interests of public justice, and to preserve the purity of the administration of the law. As is said by Mr. Justice Field, in the case of Oscanyan v. Arms Company, supra: "The defense is allowed not for the sake of the defendant, but of the law itself. The principle is indispensable to the purity of its administration." And again, in the same case, in speaking of this defense, he says: "It was one which the Court itself was bound to raise in the interest of the due administration of justice." The following cases, which are cited with approval in our own case of Milhous v. Sally, 43 S.C. 318, are to the same effect. In Holman v. Johnson, 1 Comp., 341, Ld. Mansfield said: "The objection that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but is founded in general principles of policy, which the defendant has the advantage of, contrary to real justice as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this, exdolo malo non oritur actio." No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. And as is said by Dixon, C.J., in Clemens v.Clemens, 28 Wisc., 637 (9 Am. Rep., at page 531), after making the above quotation from Lord Mansfield: "`The principle or policy of the law, therefore, is to reject the suit of and reprove the plaintiff for his wrong, not to reward the defendant. The plaintiff must be punished, even though it be at the expense of allowing the defendant, an equally guilty party, to obtain most unjust and unfair advantage for himself. * * * The suit of the party compelled to seek the aid of the Courts in order to obtain the fruits of his own fraud or wrong, must be dismissed, although it may result in unjustly giving to the other equally culpable party the entire benefit of them.' See, also, to the same effect, 1 Pom. Eq. Jur., sec. 401." These authorities, as well as many others which might be cited, fully establish the wise and salutary doctrine, *Page 77 that where the parties enter into a contract for a fraudulent, immoral or illegal purpose, the court of equity will refuse to lend its aid to either party, but will leave the parties as it finds them. If the contract is executory, it will not enforce it; and if it is executed, it will not relieve the party from its effects.
It is quite true, that the appellant has not brought his action to foreclose the Hardin mortgage, of which he claims to be the assignee; but that is of no consequence, for a court of equity takes but little note of how the parties may be arrayed against each other, whether as plaintiffs or defendants; and where, as in this case, the appellant, though arrayed as a defendant in this case, asks that such mortgage may be established as a prior lien upon the property of his codefendant, the Court must necessarily determine the question as to the validity of his claim, just as if the appellant had by a direct action against the defendant, Newell, invoked the aid of the Court to enforce his alleged mortgage; and more especially will it do so when the establishment of such claim would be detrimental to, if not destructive of, the interests of the plaintiffs in this action.
We proceed next to the consideration of the third general question stated above — that is, whether the appellant can, in this action, set up and enforce his original note and mortgage, executed by the defendant, Newell, on the 23d of December, 1896. We do not think so, for several reasons. In the first place, the appellant when called in as a defendant in this case, under the allegation in the complaint "that plaintiffs are informed that J. Matt. Cooley claims some interest in the premises, but in what way it does not appear by record," the said Cooley was bound to show by his pleading and by the evidence what was the nature of his claim and the amount thereof, so that his claim might be adjudicated in this case; and when, by his answer, he set up the Hardin mortgage, basing his claim exclusively upon that mortgage, of which he alleged that he was the assignee, without even intimating that he held any other claim, it is too late *Page 78 now, when he finds that there is danger of his losing his claim by reason of fraud and illegality, to fall back upon his original claim, which has been cancelled and extinguished by the surrender of the note which he originally held against Newell and by his voluntary entry of satisfaction upon the record of the mortgage originally held by Cooley. But again, even if the appellant had set up his original note and mortgage in his answer as the evidence of his claim, he would have been met with the conclusive answer, "You cannot establish any such claim, as you have, by your own voluntary act, extinguished such claim by the voluntary surrender of the note and the entry of satisfaction upon the record of the mortgage, more especially as this was done for the purpose of enabling you to commit a fraud upon the government." Certainly, the original mortgage cannot be set up as a lien prior to the mortgages held by the plaintiffs; for when those mortgages were taken, the record showed that the original mortgage had been satisfied — the satisfaction having been entered on the 12th of November, 1897, and all the mortgages held by plaintiffs were taken subsequent to that date; and it would be a fraud upon the plaintiffs to allow the appellant now to set up the original mortgage as a prior lien. Whether the appellant is entitled to judgment against the defendant, Newell, for the amount of money mentioned in the original note, is a question which does not properly arise in this case, as no such question is presented by the pleadings. Such a question can more properly arise in an action brought by appellant against the said Newell for money borrowed; and as to that question, we do not now propose to express any opinion.
Under the view which we have taken, the third general question — whether the appellant is the legal owner of the note and mortgage given by Newell to Hardin — becomes immaterial. We may say, however, that we agree with the Circuit Judge that appellant cannot be regarded as the legal owner of those papers. The testimony shows that the appellant, by false and fraudulent representations, *Page 79 induced Newell to sign that note and mortgage to Hardin, and that there was no consideration whatever moving between Newell and Hardin, as Newell never owed Hardin a cent of money on any account whatsoever; that the note and mortgage were never, in fact, delivered to Hardin, and that the note was signed by Newell after the assignment indorsed upon the blank note was signed by Hardin. Under these facts, the conclusion seems inevitable that Hardin was a mere figurehead, and that he never was, in fact, the legal owner of either the note or mortgage; that he never had an assignable interest in the note and mortgage, and that his formal assignment amounted to nothing. But, as we have seen, Cooley, even if he could be regarded as the legal owner of the note and mortgage, could not establish this claim, and, therefore, this question is immaterial in this case.
Finally, we propose to notice two positions taken by the appellant's counsel in their argument, inadvertently omitted at their appropriate place. The first is, that even if Cooley intended to evade the payment of the taxes justly due by him and by inducing Newell to sign the mortgage to Hardin, yet such intention, if not carried into effect, would not be sufficient to render such mortgage void. In the first place, there is testimony tending to show that Cooley did, in fact, accomplish the purpose designed, by escaping the payment of taxes on a portion of his personal property, designated in the tax laws as "Credits." But as there is no specific finding of fact to that effect, we will pass that by and consider the position taken by the appellant, as if the fact were that the appellant did not succeed in accomplishing the fraudulent purpose he intended, of evading the payment of his taxes. It may be true, that where a person merely conceives in his mind a fraudulent or illegal act, the law will not and cannot take any notice of such naked intention until it ripened into some act calculated to aid or promote his fraudulent or illegal design; but where, as in this case, a person not only conceives a fraudulent or illegal purpose but does some act in furtherance of such illegal or fraudulent purpose, the *Page 80 law will take notice of such act, prompted by and colored with such purpose, even though the purpose may not be fully accomplished. Here the undoubted fact is, as found both by the referee and the Circuit Judge, that Cooley not only conceived the design of evading the full payment of his taxes, but also did an act, by entering into a contract designed to aid in the accomplishment of his illegal purpose, which thereby became tainted with the same illegal character, and hence not enforceable in a court of justice.
Again, it is urged by the appellant that the State and the county of Anderson are the only parties which Cooley intended to defraud by his illegal act, and as they are not parties to this action and are not complaining, the doctrine above stated cannot be applied here. This position ignores the well settled doctrine established by the authorities, that the Court declines to aid in a case like this, not because it is asked to do so by the party defrauded, but solely, in the interests of public justice, and, as is said in one of the cases above cited, the Court itself is bound by its own motion to raise the question in the interest of the due administration of public justice.
The case of Cudd v. Williams, 39 S.C. 452, cited by counsel for appellant, and also relied upon by the referee, is in no way inconsistent with the view which we have taken. In that case, it appeared that one T.A. Williams (the husband of the defendant, S.B. Williams), a merchant in Spartanburg, becoming embarrassed and threatened with suit, sold his entire stock of good to Cudd Roberts. Subsequently, the said Cudd Roberts sold a half interest in the stock of goods to the defendant, S.B. Williams, and in an action to recover from her the purchase money of such half interest, she set up, as one of her defenses, that the transaction between Cudd Roberts and her husband, T.A. Williams, was fraudulent and designed to defraud the creditors of T.A. Williams. Both the Circuit Judge and the Supreme Court held that there was no sufficient evidence of fraud in the prior transaction between the plaintiffs and T. *Page 81 A. Williams. This Court also said: "Mrs. Williams received the goods as her own property, and why should she not be made to pay for them, according to contract? But if there was fraud in the prior transaction of her husband with the plaintiffs, Mrs. Williams had no connection with it. The fraud alleged was only against the creditors of Williams, and, as we understand it, no such creditor is here complaining. If the plaintiffs acquired the goods improperly, we cannot see how that should furnish Mrs. Williams an excuse for the violation of her agreement to pay for them." It is obvious that this case, properly understood, furnished no support for appellant's position. The true theory of that case is that even if there was fraud in the prior transaction between the plaintiffs and the husband, T.A. Williams, the wife, S.B. Williams, had no connection with that transaction, but was sued upon an independent contract, not involved in or connected with the prior transaction, and not tainted with any fraud. In citing that case, the appellant loses sight of the principle laid down in the case of Dent v.Ferguson, 122 U.S., at pp. 66-7, in the following language: "A new contract founded on a new and independent consideration, although in relation to property respecting which there had been unlawful or fraudulent transactions between the parties, will be dealt with by the courts on its own merits. If the new contract be fair and lawful and the new consideration be valid and adequate, it will be enforced." That was the real principle which controlled the case of Cudd v. Williams, and was properly applicable to that case; but it is not applicable to the present case; for here there was no new contract founded on a new and independent consideration, not itself tainted with fraud, but the contract which the Court refuses to enforce was itself tainted with fraud, having been entered into for the sole purpose of defrauding the revenue.
For the foregoing reasons I am unable to concur in the conclusions reached by the majority of this Court. *Page 82