fraudulent bargain seeks to recover the property, the situation is somewhat different, for while the grantor or seller is necessarily a participant of the fraud in a fraudulent conveyance, the grantee or buyer is not. If the buyer was ignorant of the fraud there is no reason why he should not enforce his rights to the same extent as any other buyer. Whether mere knowledge of a wrongful intent on the part of the seller would deprive him of a right to enforce the bargain involves a question much in dispute in regard to illegal contracts generally; namely, whether mere knowledge by one party to the contract of an illegal purpose of the other in entering into the transaction so taints the former party with the illegality as to preclude recovery by him, or whether to produce this result it is necessary that he should have intended to forward the illegal purpose, not merely known that the designs of the other party were illegal. The buyer's right to enforce an executory contract where the seller intended to defraud his creditors should be governed by the principles applied to other cases of contracts where the plaintiff has guilty knowledge. But the courts which allow recovery of the price by a fraudulent seller would doubtless generally allow an action against the seller by the buyer or grantee whatever the extent of his participation in the fraud.62 If, however, the title to the property has passed to the buyer and possession only has been retained by the seller, the buyer even though a party to the fraud to the fullest extent may recover the property. He is in such a case not suing on the illegal contract but enforcing a property right.63

61 See infra, § 1754.

62 See Harvey v. Varney, 98 Mass.

118.

63 Bush v. Rogan, 65 Ga. 320, 38 Am. Rep. 785; Bibb v. Baker's Adm'r, 17 B. Mon. 292; Peterson v. Brown, 17 Nev. 172, 45 Am. Rep. 437; Jackson v. Garnsey, 16 Johns. 189; York v. Merritt, 80 N. C. 285; Boyle v. Rankin, 22 Pa. St. 168; Croft v. Jennings, 173 Pa. St. 216, 220, 33 Atl. 1026; Broughton v. Broughton, 4 Rich. L. 491; Hoeser v. Kraeka, 29 Tex. 450; Starke's Ex. v. Littlepage, 4 Rand. 368. See also Moore v. Cline, 115 Ga.

405, 408, 41 S. E. 614; Russell v. Cole, 167 Mass. 6, 9, 44 N. E. 1057, 57 Am. St. Rep. 432. Contra, Kirkpatrick v. Clark, 132 Ill. 342, 24 N. E. 71, 8 L. R. A. 511, 22 Am. St. Rep. 531.

Courts will not aid a fraudulent grantor to recover his property from a grantee to whom the title was entrusted. Kirby v. Reynes, 138 Ala. 194, 35 So. 118; Castellor v. Brown, 119 Ga. 461, 46 S. E. 632; Jayne v. Jayne, 148 Ky. 613, 147 S. W. 41; Redmond v. Hayes, 116 Minn. 403, 133 N. W. 1016.

Under a deed or contract of composition with creditors, it is assumed in the absence of express statement to the contrary, that all creditors are to fare alike. Consequently a secret agreement to give one creditor an advantage not shared by others is in fraud of them and is ground for avoiding the composition itself by the others, and not only defeating the agree ment with the greedy creditor to give him an advantage,64 but also (it has been held in England) depriving him of any rightunder the composition. The release therein binds him though he is unable to enforce any executory promise for his own advantage.64 If, however, excessive payment is actually made to a creditor, it cannot be recovered from him, unless in subsequent bankruptcy proceedings the elements of a voidable preference can be established.646

§ 1740. Quasi-contractual recovery.

Where legislative services bargained for or performed are in part illegal, and in part legal, the rule generally applicable to partly illegal contracts prevails, and no recovery can be had for the legal portion of the services.65 Where, however, a contract has been induced by bribery or improper solicitation of officials, though the government or corporation for whom the

64 Ex parte Milner, 15 Q. B. D. 605; Kullman v. Greenebaum, 92 Cal. 403, 28 Pac. 674, 27 Am. St. Rep. 150 (advantage given by third person); Morrison v. Schlesinger, 10 Ind. App. 665, 38 N. E. 493; Bank of Commerce v. Hoeber, 88 Mo. 37, 57 Am. Rep. 359; Solinger v. Earle, 82 N. Y. 393 (advantage given by third person). See also Coleman v. Waller, 3 Younge & J. 212; Knight v. Hunt, 5 Bing. 432; Batchelder & Lincoln Co. v. Whitmore, 122 Fed. 355, 58 C. C. A. 517; Brown v. Nealley, 161 Mass. 1, 36 N. E. 464; Vanderhoef v. Youmans, 85 N. Y. Misc. 418, 147 N. Y. S. 347. Cf. Continental Nat. Bank v. McGeoch, 92 Wis. 286, 66 N. W. 606. If the debtor is ignorant of an advantage given by a third person to one creditor, other creditors cannot avoid the composi

tion. Martin v. Adams, 81 Hun, 9, 30 N. Y. S. 523. See also Ex parte Milner, 15 Q. B. D. 605; Bank of Commerce v. Hoeber, 88 Mo. 37, 44, 57 Am. Rep. 359.

64 Mallalieu v. Hodgson, 16 Q. B. 689; Ex parte Phillips; Re Harvey, 36 Weekly Rep. 567; Mayhew v. Boyes, 103 L. T. (N. S.) 1. But see contra, Batchelder & Lincoln Co. v. Whitmore, 122 Fed. 355, 58 C. C. A. 517.

646 Batchelder & Lincoln Co. v. Whitmore, 122 Fed. 355, 58 C. C. A.

66

official was acting may rescind the contract for fraud, yet it cannot avoid payment for the fair value of anything it actually receives under the contract, if the contract itself was not illegal, and the only flaw was the improper inducement to enter into it.67 This is in accordance with the general rule in regard to the rescission of contracts induced by fraud.68

§ 1741. Contracts in regard to marriage.

As the sanctity of the marriage relation is at the foundation of the welfare of the State, the law has looked with jealous regard at contracts concerning that relation. A contract or a condition in restraint of marriage has been generally held void."9 Such conditions are not infrequently attached to conveyances or gifts by will; 70 and in such transfers the general rule is that if the condition is precedent to the vesting of an estate, the estate fails and the attempted transfer is ineffectual; but if the condition is subsequent the estate conveyed is never divested and the transfer is absolute.71 In contracts it is not easily possible for the condition to be subsequent in effect though it may be so in form.72 Consequently if a condition in a contract is in unlawful restraint of marriage, as well as where the promise itself is open to similar objection, no obligation ever arises.73 Some exception to the general principle is, however, admitted. 66 Crocker v. United States, 240 U. S. 74, 60 L. Ed. 533, 36 S. Ct. 245. See also Wakefield Banking Co. v. Normanton Local Board, 44 L. T. (N. S.) 697.

7 Crocker v. United States, 240 U. S. 74, 60 L. Ed. 533, 36 S. Ct. 245; Chouteau v. Allen, 70 Mo. 290. But see Lindsey v. Philadelphia, 2 Phila.

212.

See supra, § 1529.

• Hartley v. Rice, 10 East, 22; Lowe v. Peers, 4 Burr. 2225; White v. Equitable Nuptial Ben. Union, 76 Ala. 251, 52 Am. Rep. 325; Chalfant v. Payton, 91 Ind. 202, 46 Am. Rep. 586; James v. Jellison, 94 Ind. 292, 48 Am. Rep. 151; McCoy v. Flynn, 169 Iowa, 622, 151 N. W. 465, L. R. A. 1915 D. 1064; Bostick v. Blades, 59 Md. 231, 43 Am.

Rep. 548; Lowe v. Doremus, 84 N. J. L. 658, 87 Atl. 459, 49 L. R. A. (N. S.) 632; Conrad v. Williams, 6 Hill (N. Y.), 444.

70 See Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949, 49 L. R. A. (N. S.) 605, and note thereto.

71 Story's Equity Jurisdiction, § 288; Hogan v. Curtin, 88 N. Y. 162, 42 Am. Rep. 244.

72 See supra, § 667. A condition terminating the right to an annual payment promised, for instance, is in substance a series of conditions precedent to the promisee's right each succeeding year.

73 Lowe v. Peers, 4 Burr. 2225; McCoy v. Flynn, 169 Iowa, 622, 151 N. W. 465, L. R. A. 1915 D. 1064; Conrad v. Williams, 6 Hill, 444.

74

Restraint of second marriages has generally been held permissible; and reasonable contracts involving the performance of services which are inconsistent with matrimony have been upheld.75 If the restraint is unreasonable, the fact that it is limited in time will not prevent the contract from being unlawful.76 And it has been held that a contract between third persons to endeavor to prevent a contemplated marriage of a relative was illegal although the woman in question was of bad character." Contracts to bring about marriage so-called marriage brokerage contracts-are likewise invalid.78

§ 1742. Separation agreements.

Contracts providing for or contemplating the future separation of husband and wife are opposed to public policy; but if a separation has already taken place, or is to take place contemporaneously with the agreement, the modern English cases 79 and the majority of American decisions, 80 sustain an

74 Appleby v. Appleby, 100 Minn. 408, 111 N. W. 305, 10 L. R. A. (N. S.), 590, 117 Am. St. Rep. 709, 10 Ann. Cas. 563. But see Bradley v. Bradley, 19 Ont. L. Rep. 525.

75 Fletcher v. Osborn, 282 Ill. 143, 118 N. E. 446, L. R. A. 1918 C. 331; King v. King, 63 Ohio St. 363, 59 N. E. 111, 52 L. R. A. 157, 81 Am. St. Rep. 635. In the case last cited, the plaintiff agreed to take care of the promisor while he lived and to refrain from marriage during that time; he in return promising to leave a legacy. The contract was upheld. See also Shafer v. Senseman, 125 Pa. St. 310, 17 Atl. 350. But in Lowe v. Doremus, 84 N. J. L. 658, 87 Atl. 459, 49 L. R. A. (N. S.) 632, a similar contract was held invalid. A contract between unmarried sisters to leave their property to one another to the exclusion, so far as legally permissible, of future husbands, was upheld in Kloberg v. Teller, 171 N. Y. S. 947.

76 White v. Equitable Nuptial, etc., Union, 76 Ala. 251, 52 Am. Rep. 325;

James v. Jellison, 94 Ind. 292, 48 Am. Rep. 151; State v. Towle, 80 Me. 287, 14 Atl. 195; Lowe v. Doremus, 84 N. J. L. 658, 87 Atl. 759, 49 L. R. A. (N. S.) 632.

77 Sheppey v. Stevens, 177 Fed. 484. 78 Drury v. Hooke, 2 Ch. Cas. 176; Morrison v. Rogers, 115 Cal. 252, 46 Pac. 1072, 56 Am. St. Rep. 95; Johnson's Adm'r v. Hunt, 81 Ky. 321; Weeks v. Hill, 38 N. H. 199; Duval v. Wellman, 124 N. Y. 156, 26 N. E. 343, 34 N. Y. St. 964; Overman v. Clemmons, 19 N. C. 185.

79 Wilson v. Wilson, 1 H. L. C. 538; McGregor v. McGregor, 20 Q. B. D.

529.

80 Walker v. Walker's Ex'r, 9 Wall. 743, 10 L. Ed. 814; In re Yoell's Est., 164 Cal. 540, 129 Pac. 999; Boland v. O'Neil, 72 Conn. 217, 44 Atl. 15; Stokes v. Anderson, 118 Ind. 533, 21 N. E. 331, 4 L. R. A. 313; McKee v. Reynolds, 26 Iowa, 578; French v. French, 177 Iowa, 682, 157 N. W. 137; Loud v. Loud, 4 Bush, 453; Carey v. Mackey, 82 Me. 516, 20 Atl. 84, 9

agreement for the support of the wife during the separation. Some States, however, still preserve the stricter rule of the earlier common law that all separation agreements are necessarily invalid; ; 81 and, doubtless generally in the United States, though the law is otherwise in England, so far as the agreement is executory it is revocable.82 It would also be held by some American courts, at least, that the wife's adultery would avoid