Third National Exchange Bank v. Smith

Citations

• 17 N.M. 166

Syllabus

<p>SYLLABUS (BY THE COURT).</p> <p>1. Act of Congress of Feb. 25, 1885, ch. 149, Stat. L. 321, makes it a penal offense for any person to enclose public lands of the United States or to assert the right to the exclusive use and occupancy of any part of the public domain without claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim made in good faith, with a view to entry thereof at the proper land office, under the general laws of the United States. •</p> <p>2. A paragraph of answer, interposed in a suit on notes, and to foreclose a trust deed, given for the purchase price of the land included in the trust deed, which sets up as a defense, that the contract by which the land was acquired and the consideration for the notes secured by the trust deed, was in violation of the penal provisions of the act of congress of Feb. 25, 1885, states a good defense.</p> <p>3. An act done in violation of a statutory prohibition is void, and confers no right upon the wrongdoer.</p> <p>4. A contract founded upon an illegal consideration, or which is made for the purpose of furthering any matter or thing prohibited by statute, or to aid or assist any party in violating a statute, or doing an illegal act, is void.</p> <p>5. Held that the paragraph of answer in question does not rely upon the fact that appellee, or appellant, had no title to the land, except as such fact is incident to the main fact that the notes and trust deed are based upon a consideration, growing out of the violation of a penal statute, and that the defense relies upon the invalidity and unlawfulness of the transaction, and not the mere failure of title.</p> <p>6. The defense that a contract violates a penal statute and which shows that defendant participated in such violation, is a dishonest defense, and it is not out of any consideration for the defendant that courts permit such a defense to be interposed, but it is allowed out of public consideration and-in order