a

(- Okla. —,

172 Pac. 958.) by him to an infant and placed on acts, or by words, or both combined, record by him, the trial court found and such acts and words and the ciras a fact that the grantor, influenced cumstances relevant thereto are susby fear of a creditor, as well as by ceptible of parol proof.” affection for the grantee "with the In the body of the opinion, it is intent and purpose of giving to the said: “That such question is one of said

[grantee] his title to fact to be determined by the circumsaid land,

executed said stances, actions, statements, and indeed and caused the same to be re- tention of the grantor is the consencorded." The appellate court held sus of authorities. 14 Ballard, Real that such finding was determinative Prop. $$ 146-152; 3 Devlin, Deeds, of the question of delivery, and that 3d ed. § 265; 9 Am. & Eng. Enc. the proved facts that a month Law, 2d ed. 154; 13 Cyc. 750, and elapsed between the execution and authorities cited" thereto. delivery of the deed to the town It is placed beyond question by clerk, that the grantor did not place the evidence in this case, especially it in the hands of the grantee, and the retention of the deed after its that he retained possession of the record, and the possession and enland, of necessity exhausted their joyment of the property as his own force upon the minds of the court by King, and the uncontradicted evibelow, and were not to be consid- dence of King as to his intention in ered by the appellate court.

executing and recording the deed, Where a father executes a volun- that the intention of King was for tary deed to his minor children and the sole purpose to protect the prophas it recorded, and then takes it erty from a legal liability, and thereand keeps it in his possession, there fore said deed did not pass title to is no delivery to the children, and no the intervener, and she was not enestoppel against the father to deny titled to recover the property. The a delivery, where he did not do such intervener not having paid any conacts for the purpose of giving effect sideration for the property, or to the deed, but to protect himself assumed any liability on account against a threatened claim for ali- thereof, and never having been in mony. Kopplemann v. Kopplemann, possession of the property, nor the 94 Tex. 40, 57 S. W. 570.

deed delivered to her, was entirely The unquestioned evidence is that without the right to any equitable the deed was never in fact delivered consideration in her behal to the intervener, but was surrepti- The unquestioned evidence is that tiously taken by her many years the purpose of King in executing after the execution of the deed; that

and placing the deed upon record the deed, after it had been placed was a fraudulent act, and therefore upon record, was returned to and re

King “does not come into court with tained by the grantor, together with clean hands,” and possession of the property conveyed consequently equity removal-deed thereby, and that the intention of

will not grant him to defraud the grantor in executing the deed the relief prayed was not to convey title to the inter

for, “but will leave him where it vener, but to place the property found him.” It is a well-settled where it could not be reached for a maxim of equity that he who comes legal liability that might arise into equity must come with clean against him.

hands. In Johnson v. Craig, 37 Okla. 378, “The principle of the maxim is 130 Pac. 581, it is held: “Where that a court of equity will leave the there is a question as to whether guilty party seeking its aid where it there had been a delivery of a deed finds him. Not only does it refuse, of conveyance, the real test is the as has been seen, to

carry to intention of the grantor, which in- fruition a fraudulent, illegal, or tention may be manifested by mere otherwise unconscionable transac

Cloud

creditors.

tion, but where such transaction has in error with costs, other than the been in whole or in part carried out, costs heretofore awarded against it refuses to undo it on the applica- the Antrim Lumber Company. tion of a guilty participant, and re

Per Curiam: fuses to relieve him from legal liabilities or other consequences of his

Adopted in whole. misconduct." 16 Cyc. 145, $ 3, and the very many authorities there

Petition for rehearing denied, cited.

May 21, 1918.
It follows that the court did not

NOTE.
err in refusing the relief prayed for
by King for the cancelation of the

In the reported case (KING v.

. deed and the record thereof, and the

ANTRIM LUMBER Co. ante, 21), it is removal of such cloud from the title

held that a person who records but to the property involved. The in

does not deliver a deed, his sole purterpleader not being entitled to re

pose being to defraud his creditors, is cover in this action as sought by her

not entitled to equitable relief against interplea, the court committed reversible error in overruling the mo

the grantee where the latter surreptition for a new trial.

tiously obtains possession of the deed This cause is reversed and re

and claims title. The cases involving manded, with instructions to the the equitable maxim that "he who trial court to dismiss the interven

seeks the aid of equity must come with tion of the intervener, and to dis

clean hands" are reviewed in the note miss the cross action of the plain- following LANGLEY V. DEVLIN, post, tiff in error, and tax the plaintiff

.

ELIZABETH ARADO, Appt.,

v.
DAVID ARADO.

Illinois Supreme Court - October 23, 1917.

(281 Ill. 123, 117 N. E. 816.)

Equity — maxim

- maxim - unclean hands — when applicable. 1. The rule that equity will not entertain the complaint of one who comes into court with unclean hands does not apply to one seeking to annul an illegal marriage.

[See note on this question beginning on page 44.] Marriage — between cousins — valid- Marriage - suit to annul alimony ity.

and solicitors' fees. 2. Marriages between first cousins 4. Temporary alimony and solicare absolutely void without judicial

itors' fees in a suit to annul a mardecree, under statutes declaring them riage are not allowed as matter of to be incestuous and void and making right, but rest in the sound discretion persons entering into them punishable of the court. by imprisonment in the penitentiary. [See 1 R. C. L. 904, 917.] [See 18 R. C. L. 410-412.]

Appeal denial of alimony error.

5. There is no error in denying temEstoppel — disaffirmance of marriage.

porary alimony and solicitors' fees in 3. Estoppel does not lie against dis

a suit to annul a marriage, to a woman affirmance of an illegal marriage. who has an independent income of [See 18 R. C. L. 450.]

$250 per month. (Carter, Ch. J., dissents.)

(231 IU. 123, 117 N. E. 816.) APPEAL by plaintiff from a judgment of the First Branch Appellate Court, First District (Walker, J.) affirming a judgment of the Circuit Court for Cook County dismissing a bill filed for temporary alimony, solicitor's fees, and for a divorce. Affirmed.

The facts are stated in the opinion of the court.

Messrs. King, Brower, & Hurlbut denomination which permitted cousfor appellant.

ins of the first degree to marry, and Mr. Charles P. Molthrop for appel- from time immemorial had recoglee.

nized such marriages to be valid; Cartwright, J., delivered the opin- that the appellee was estopped from ion of the court:

denying the validity of the marriage The question in this case is wheth- by a contract under seal, made in er the statute by which marriages compromise of a suit brought by her of cousins of the first degree are de- for separate maintenance, in which clared to be incestuous and void is he threatened to set up the defense to be interpreted as declaring that of the invalidity of the marriage; such a marriage is void in the sense that by the agreement it was deof being a nullity, ineffectual under clared that the children were lawany circumstances to bind the par- fully begotten children of herself ties or to confer marital rights, or is and the appellee; and that other conto be coristrued as being voidable duct of the defendant had created an and possessing validity until disaf- equitable estoppel against the disfirmed by the act of one or both of

affirmance of the marriage contract. the parties to the marriage, so that

The appellee excepted to the matter the right to disaffirm may be lost by

set up as a compromise of the sepaconduct creating an equitable estop

rate maintenance suit and the matpel. The suit was commenced by

ter alleged as an equitable estoppel. the filing of a bill on February 2; appellant were first cousins, and the

The appellee testified that he and the 1915, in the circuit court of Cook

court entered a decree reciting that county, by the appellant, Elizabeth

the cause was heard

upon

the excepArado, against the appellee, David

tions and upon a motion of the apArado, to whom she had been mar- pellant, based on her verified bill, for ried by a ceremonial marriage on

temporary alimony and the allowOctober 4, 1894. She charged the ance of solicitor's fees, sustaining appellee with habitual drunkenness, the exceptions to the answer to the extreme and repeated cruelty, and cross bill, denying the motion for adultery, and alleged that they had temporary alimony and solicitor's two children, a boy aged seventeen fees, declaring the marriage void years and a girl aged fourteen and of no effect, and dismissing the years, and prayed for temporary ali- bill of appellant for want of equity. mony, solicitor's fees, a divorce, and The appellate court for the first discustody of the children. The appel- trict affirmed the decree, and grantlee answered, admitting the cere- ed a certificate of importance and an monial marriage, but denying the appeal to this court. charges of misconduct made in the The statute enacted in 1819 probill, and alleging that the marriage vided that males of the age of sevenwas void and of no effect because he teen and females of the age of fourand the appellant were cousins of teen might be joined in marriage the first degree. The appellee also if not prohibited by the laws of filed a cross bill, setting up the stat- God, which have been commonly ute declaring marriages between understood as the prohibitions defirst cousins incestuous and void, clared by verses from 6 to 18, and praying the court to set aside inclusive, of the 18th chapter of the marriage. To this cross bill the Leviticus. The marriage of cousappellant answered that she and the ins of the first degree was not proappellee were communicants of the hibited by those laws, and the Roman Catholic Church, a religious most distant relation in consanguin

ity therein stated was that of uncle ted from the Criminal Code, § 125, and niece, or aunt and nephew. The prohibiting marriages on account of disabilities created by the Levitical consanguinity. Rev. Stat. 1874, p.

. , Law were canonical, but were recog- 376. Section 125 was transferred nized by the common law to the ex- to the chapter relating to marriages, tent of treating the prohibited mar- and was re-enacted as § 1 of that riages as voidable, and not void until chapter. Rev. Stat. 1874, p. 694. sentence of nullity should be ob- The Revised Statutes of 1845 detained. They were considered valid clared marriages within the prohibfor all civil purposes until sentence ited degrees to be absolutely void, of separation, which must have been and in the Revision of 1874 the word made in the lifetime of the parties, "absolutely” was omitted, and they and the court would not annul a were merely declared to be incestumarriage after the death of either ous and void. Under these statutes, party, by which the issue would be and up to the year 1887, marriages bastardized. 1 Bl. Com. 434; 2 of cousins of the first degree were Kent, Com. 95. While the Statute of valid, but in that year § 1 of the Re1819 was in force, the question of the vision of 1874 was amended by addvalidity of the marriage of Joseph ing marriages between cousins of Bonham and Sarah Beer, his niece, the first degree, the amended statwas involved in a suit, and the court ute otherwise being the same as in held that the marriage, not having the Revision of 1874. Laws 1887, been nullified by sentence of separa- p. 225. The question whether the tion in the lifetime of Joseph Bon- marriage of the appellant and apham, was made good for all civil pellee was void in the proper sense purposes, and the wife was entitled of the term, or voidable merely, to dower. Bonham v. Badgley, 7 must be determined from the amendIll. 622. In the Revised Statutes of ed Act of 1887, and the provision of 1845 the general assembly made 'a the Criminal Code making the parstatutory rule as to what marriages ties to a marriage declared to be inshould be declared void on account cestuous and void punishable by imof consanguinity, and by $ 124, divi- prisonment in the penitentiary; and sion 11, of the Criminal Code, de- there is a further question whether clared that marriages between par- a marriage prohibited by law, and ents and children (including grand- which constitutes a criminal offense, parents and grandchildren of every can become valid by ratification or degree), between brothers and sis- through an equitable estoppel. ters (of the half as well as of the Reasons advanced by counsel for whole blood), and between uncles the appellant for construing the and nieces, and aunts and nephews, word "void” as “voidable" are that were incestuous and absolutely void. the word is of uncertain meaning, Section 125 of the same division pro- and may mean either of no effect or vided that persons within the de

as valid until disaffirmed, and consegrees of consanguinity within which quently giving rise to an equitable marriages were declared by the pre- estoppel to dispute the validity of a ceding section to be incestuous and marriage; that the general assembly, void, who should intermarry with

in the Revision of 1874, dropped the each other, should be liable to indict qualifying word "absolutely," therement, and upon conviction be pun

by showing an intent to repeal so ished by imprisonment in the peni- much of the earlier statute as gave tentiary not exceeding ten years.

the word the meaning of nullity; Rev. Stat. 1845, p. 173. The next

and that in adding to the Marriage general statutory revision of the

Statute, in 1887, the class of marCriminal Code was in 1874, and un- riages between cousins of the first der the title of "Incest” the general degree, which had been valid previassembly re-enacted § 125, division ously, the general assembly mani11, as § 157 of division 1, and omit- fested an intent to give a different.

V. ARADO

31 (281 ni. 123, 117 V. E. 816.) meaning to the words "incestuous" its enactment, or might thereafter and "void,” as to that class, from the be declared to be, incestuous and meaning as applied to classes con- void; and the fact that a change was demned previously by the Criminal made in the prohibited degrees Code.

could not have any effect to give a There is no provision of the stat- different meaning to the

the word ute giving jurisdiction to a court to

"void,” as applied to the class of hear and determine the validity of a

marriages added to the statute. marriage between cousins of the

Aside from a construction of the first degree, or to pronounce a sen

statute, no estoppel could arise as tence of separation, so that the word "void" cannot be construed as

against a disaffirmance of an illegal "voidable” upon such a degree by a

marriage. There was no such escourt of competent jurisdiction. The toppel under the rule of the common general assembly itself declared

law. In West Virginia, by statutory such marriages to be incestuous and

enactment, marriages between relavoid, regardless of disaffirmance

tions of the forbidden degrees are or the action of a court, and also

only voidable, but

Estoppelmade the marriage a criminal act,

the court of appeals disaffrmance for which punishment was provided.

decided in Martin v.

of marriage. The courts in the earlier cases natu- Martin, 54 W. Va. 301, 46 S. E. 120, rally manifested a disposition to fol

1 Ann. Cas. 612, that if the parties low the common-law rule in the could continue the marriage relaconstruction of statutes. Incest was

tionship without violating the criminot indictable at the common-law nal laws of the state the court might but was punished by the ecclesias- be justified in refusing to entertain tical courts as an offense against the plaintiff's bill to annul his margood morals; but by the statute riage; but where the law forbids the it is punishable by imprisonment

continuance of the relation it is the in the penitentiary. It would be duty of both parties to have the marcontrary to reason to say that an

riage annulled. The general rule act which is criminal can be valid that equity will not entertain the for any purpose, or that a mar- complaint of one who comes into the riage contracted by persons incap

court with unclean

Equity-maximable of entering into the contract hands does not ap- unclean hands

when applicable. can have any validity. In the Revi- ply, and if a party sion of 1874, the qualifying word to an illegal marriage is so wanting "absolutely” was dropped from the in honor as to be willing to publish statute, but when that fact is con

his own criminal offense, and dissidered in connection with the grace and humiliate his children and Criminal Code, any inference that one with whom he has lived in the the meaning of the word “void" was marital relation, the public interest changed in any way

requires that he should not be preMarriage between cousins cannot arise. Un- vented from doing so. The defend-validity.

der such statutes ant was not barred from alleging the marriages within the prohibited de- illegality of the marriage. . grees are void and not merely void- The chancellor denied the motion able. Fearnow v. Jones, 34 Okla. of the appellant for temporary ali694, L.R.A.1916C, 720, 126 Pac. mony and solicitor's fees, based up1015; Blaisdell v. Bickum, 139 Mass. on her verified bill of complaint. 250, 1 N. E. 281; Hayes v. Rollins, Temporary alimony and solicitor's 68 N. H. 191, 44 Atl. 176; Mcllvain

fees are not allowed as a matter of v. Scheibley, 109 Ky. 455, 59 S. W. right, but rest in the 498. The provision of the Criminal

Marriage

sound discretion of Code providing punishment for in

the court, dependent alimony and

solicitor's fees. cestuous marriages was general in on the inability of its application, and applied to all the complainant to provide for hermarriages which were at the time of self and pay the expenses of the liţi

snit to annnl