Glos v. McBride

SHAW, J.

Action to quiet title. In addition to an allegation that plaintiff is owner of the land in fee simple and in possession thereof, it is alleged in the complaint that defendant, basing his right thereto upon a lease thereof made by plaintiff to defendant, the consideration of which “was in part that said plaintiff and said defendant (though not husband and wife) should live together on said parcel of land and should cohabit as man and wife,” unjustly and without right claims an interest in the land adverse to plaintiff; followed by the usual prayer for relief. To this complaint the court sustained a general demurrer without leave to amend, and gave judgment for defendant, from which plaintiff appeals.

The ground of this ruling, as stated by the trial court, is that section 1608 of the Civil Code provides that “if any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void”; and that, since it appeared from the complaint that a part of the consideration for the lease was unlawful, its existence did not east a cloud upon plaintiff’s title. Conceding that no cloud is east upon a plaintiff’s title to land by an instrument which on its face discloses that it is void, we cannot in this case, since the lease is not exhibited by the record, assume the existence of such fact. On the contrary, upon the allegations of the complaint, the presumption is that on its face nothing appears affecting the validity of the instrument. It is the extrinsic facts alleged which render the lease void.

.The chief ground upon which counsel for respondent insists upon the correctness of the ruling is that, as shown by

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the complaint, the contract had for its object the creation and continuance during the term of the lease of an illicit relation between plaintiff and defendant, thus exhibiting her own turpitude, which constituted the consideration for the transfer of the leasehold. In other words, the complaint presents a case where the doors of the court are, as to both parties to the contract, closed; it will neither aid the one in the enforcement of the contract nor give aid to the other in avoiding it.

(Abbe

v.