concurring: -
I concur in the main, in the opinion of tho majority of the court.
In resisting the plaintiff’s demand, the defendant avers that the con* *761sidcration of tlie notes sued on, being in part for tlie pnce of slaves, and to tliat extent reprobated by law, as being against good morals and public policy, the entire contract is vitiated and consequently null and void. He moreover contends that the payments he has heretofore made under the contract, can only be applied to the value of the land which has thus been paid for, and that there remains nothing due the plaintiff. That as the law repudiates that part of tlie consideration which relates to the slaves, it will not impute the payments to the price of both land and slaves.
The principles and spirit of the decision in the case of Wainwright v. Bridges, 19 An. p. 234, is invoked to sustain the main ground of the defense, and various authorities are cited to show that if any part of the entire consideration of a contract is illegal aud against sound morals or public policy, the whole is null.
This doctrine that the nullity arising from the illegality of a part of the consideration of a contract operates the nullity of the whole, is, I imagine, in the general well settled.
“ If any pa it of the entire consideration for a promise, or any part of an entire promise not in its nature capable of separation, bo illegal either by common law or by statute, the whole agreement is void.” Chitty on Contracts, page 692.
“ A distinction has been taken in the books between a deed or condition void in part by the statute, and the caso of such an instrument being in part void at common law. ***** * * * But this distinction cannot bo supported; anda contract is void in toto if a part of it is illegal either by virtue of a statute or at common law.” Chitty on Contracts, page 693.
“ There are, however, instances in which the invalidity of a part of a deed, even by virtue of “a statute, has been held not to destroy the whole; and the remainder, being legal and distinct, and capable of separation from the illegal provision, has been allowed to stand, there being no express words in the act to render the whole void.” Ibiclem, page 693.
“If any part of the entire consideration .of a contract is illegal, as against sound morals or public policy, tlie whole is void.” 6 Dana’s Reports, page 91.
“ Where the consideration of an agreement is in violation of a statute, no action can be maintained upon it by either party.” 17 Massachusetts Reports, page 258.
“ An action cannot be sustained in the courts of a State on an agreement entered into in violation of'the laws of the United States or of the laws of the particular State.” 4 Dallas, page 298.
This general doctrine is recognized in Parsons oh Contracts, vol. 1, page 455 et seguientes, vol. 2, page 673; 2 Pothier on Obligations, page 16; 9 Jowa Reports, page 384,
*762Where, however, the illegal part of the consideration is ascertainable with sufficient certainty, and may be separated from the illegal part, there seems to be no sound reason why the contract should not be enforced to the extent to which the consideration is legal. This principle has often been acted upon.
In the case of Greenwood v. Curtis, 6 Mass. Kepoits, page 358, a contract was entered into on the coast of Africa by which one of the parties, in cons:deration of a cargo of merchandise received, obligated himself to deliver to the other party one hundred and fifteen slaves. A part only of the slaves were delivered. Upon an account stated, the party in’default deducted the estimated value of the slaves delivered, and of certain supplies furnished by him, and acknowledged a balance due in cash. lie afterwards gave his note for this balance stated in his account, to be paid in slaves. Being sued subsequently on the account, the couit hold that the action upon the insimul computassent might be maintained, and gave the plaintiff judgment accordingly.
But the rule which vitiates the entire contract, on account of a partial defect in the consideration, seems, in general, to be restricted to and relate more especially to cases where such partial defect arises from a clause or stipulation in the agreement, which is violative of some law existing at the time the contract was entered into. This rule, then, would hardly seem to apply to the case now under consideration ; for at the time the contract was made by the parties, there was no law of this State prohibiting the buying and selling of slaves. The fact was distinctly recognized by this court, in the case of Wainwright v. Bridges, that, antecedent to the action of the sovereign power abolishing slavery, obligations for the payment of the price of slaves might be and wore judicially enforced. Slavery existed, it is true, in violation of natural right, and contracts having for their object the retention of human beings in the condition of involuntary toil and servitude would, in the forum of an enlightened conscience, be adjudged in derogation of sound morals; yet, such contracts had the sanction oi the then existing laws or regulations relating to slavery, and the sovereign power then permitted such laws or regulations by not having pronounced against them. So, in the later ages of the Boman empire, there were laws sanctioning slavery and enforcing contracts for the sale of slaves, and still the Digest of Justinian, then in force, expressly declared slavery to be in violation of natural right and natural j ustice.
Seeing, then, that at the time the parties entered into the contract in relation to the land and slaves, forming the object of the contract, the slaves constituted, to the extent of their value, as valid a part of the consideration as the land. I think the entire contract was not rendered null by reason of the alleged illegality of the sale of the slaves. Nor do I consider that the entire contract is null from the act of the sovereign power annulling, subsequently to the formation' of the contract, *763its consideration to the extent of the subsisting unpaid part of the price or value of the slaves.
An insuperable barrier is in the way of the plaintiff’s recovering the unpaid price of the slaves, either in whole or in.part. This point has been definitely settled and put to rest by the decision, before referred to, of Wainwright v. Bridges, and the more authoritative prohibition of article 128 of the State constitution.
I believe it is not out of the power of the parties to ascertain, in cases like the one before us, the portion of the entire consideration to be deducted; at least, that this can be done by an approximation sufficiently near and with sufficient certainty to form the basis of a judgment that will do justice between the parties. With regard to payments made on contracts of this kind before the enforcement of obligations for the price of slaves ceased, equity requires that they should take effect in the manner intended by the parties; that is, as payments on the entire sum stipulated to be paid by the purchaser, as the consideration for which the sale was made! Courts will not deal with the executed parts of these contracts otherwise than the parties themselves have manifestly done. Payments made under the circumstances in view were, beyond all cavil, made pro tanto by the debtor for land and slaves, and these payments were received by the creditor in like manner, as far as they went, in satisfaction of the price of land and slaves.
Courts make no imputation of these payments. They accept the disposition which the parties themselves have made of them. Their intention and consent that the payments were made upon the whole price, is patent upon the very face of the act. Even if it were a mere presumption, it would be for the party holding the negative to overcome the presumption, and prove that such was not their purpose. Executory contracts relating to the price of slaves were stricken with nullity by the final- action of the sovereign power; but that power went not back upon the dead past, nor authorized the courts to do it; for whatever was paid on such obligations, i>rior to that final action, there is no reclamation, nor can any other destination be.givon to such payments than that which the contracting parties themselves have given them. The law in such cases leaves the parties where it found them. It will not hear the absurd plea from -one of them that the partial payments made on a contract for land and slaves, were intended to be applied to the price of the land alone. It will give no countenance to the purchaser, who, willing to be relieved from his existing obligations to pay the price of slaves, is yet unwilling to lose what he has paid for them, and desires the seller’s land to bo given him as an indemnity. Such a litigant is in court with but little grace.
Article 128 of the State constitution declares that “ contracts for the *764salo of persons aro null and. void, and sliall not; be enforced by the courts of this State.” A contract originally for both land and slaves, shorn and divested of its legal force as to the recovery of the unpaid part of the price of the slaves, is not a contract for the sale of persons. Obligations originally entered into to pay a stipulated price for land and slaves, have since become utterly and absolutely null, to the full extent to which the estimated value of the slaves formed a part of the consideration. These obligations, then, are no longer obligations for the payment of the price of slaves. I see no violation of the constitution in rejecting that part of the contract which is null, and enforcing the part.that is valid. I think substantial justice between the parties can only be done by ascertaining the value, at the time of the sale, of the land separately, and that of the slaves separately; and, rejecting the latter in the computation, adjust the indebtedness for the land, and where partial .payments have been made before the nullity of a portion of the consideration arose, dispose of them as the parties have applied them, to the aggregate sum fixed for the entire purchase. I see no inordinate difficulty or inconvenience in thus disposing of cases of this kind, and I think it the most equitable mode.