Whatever view may be taken of the transaction between the deceased in respect of the stock in controversy, or of the corporate business, the defence in this case cannot be sustained. The fact that the stock was put to an unlawful use did not devest it of its character as property, or place it outside the protection of the law; nor does the plaintiff require the aid of any illegal transaction to establish her right to its recovery. Her cause of action is not founded upon her intestate's transfer of the stock to the defendant's husband for an unlawful use, which has, however, ceased, but upon the subsequent acknowledgment and agreement of the husband to and with the plaintiff that the stock belonged to her intestate's estate, and that he would assign and convey it to the estate, or to herself as its representative, upon her request. Certainly this agreement was not illegal. No vice or taint in the original transaction entered into or attached to it, and it was made upon sufficient consideration. *Page 9
The only ground upon which the defendant seeks to be relieved from it is, that the transfer was made and the stock used in furtherance of an unlawful enterprise in which the deceased were mutually engaged. But she is not entitled to relief upon this ground. As the representative of her husband, she cannot set up his crime in order to defeat the plaintiff's recovery. She stands in his place and has his rights, but no more. Fletcher v. Grover, 11 N.H. 368, 369. His infamy cannot be her defence. It is forbidden by every consideration of law, justice and fair-dealing, and no less by a decent regard for his reputation and memory.
But it is not necessary to apply the principle embodied in the maxim, "No man shall set up his infamy its it defence." The same result follows from the consideration of the existing situation. A paper representing property is impounded with the court. A and B both claim it. The paper title of the property is in A, but the trial court has found upon competent evidence that the property belongs to B. One or the other of them is entitled to the impounded paper. The sole question is, which has the better right? It can hardly be necessary to say that the question is not an open one. The finding of the trial term conclusively establishes B's right to the paper; and with the possession goes the accompanying incidental right to such an assignment of it by A as may be necessary for B's beneficial use and enjoyment of it.
Other grounds debarring the defendant suggest themselves (Railroad v. Railroad, 66 N.H. 100, 126, 127, 131, 133), and still others have been suggested in argument; but her claim to the property in controversy is so vicious in its character and tendency, and so repugnant to all just notions of right and equity, that it is unnecessary to pursue the subject farther.
The plaintiff is entitled to the possession of the certificates now impounded with the clerk of the court and to an assignment of the same to her by the defendant.
Decree accordingly.
CHASE, J., did not sit: the others concurred. *Page 10