Tappan v. Albany Brewing Co.

Works, J. The complaint in this case alleges, in substance, that an action for partition of certain real [571]estate having been brought, judgment was rendered, decree for the sale of the property entered, and the property sold to the defendant; that the property was sold for much less than its real value; that the plaintiff’s assignor, who was one of the defendants, and a tenant in common of the real estate, being dissatisfied with the price at which the property was sold, was about to commence proceedings to prevent the confirmation of the sale by the court; that the defendants, to induce her not to make such objections, agreed to pay her one thousand dollars additional for her interest in the property immediately upon the sale being confirmed, and that she, relying upon such promise, and in consideration thereof, refrained from making objections to the confirmation of said sale, and that no objection being made, the sale was duly confirmed.

The defendant paid one hundred dollars of the amount, and this action is to recover the balance of nine hundred dollars.

The court below overruled a demurrer to the complaint, and the defendant failing to answer, judgment was entered against it, and it appeals.

The demurrer should have been sustained. The contract was a fraud, not only upon the court, whose duty it was to pass upon and confirm or set aside the sale, but upon the parties in the action of partition. It was the plain duty of the plaintiff’s assignor, if she knew of any valid reason why the sale should have been set aside or not confirmed, to make it known to the court and her co-defendants.

It is contended by the respondent that this was nothing more than the payment of a sum of money by way of a compromise of litigation, and that such contracts have been upheld. We do not so construe the agreement. It was a promise to pay a consideration for the concealment of a fact from the court and the parties material to the rights of said parties, and which it was her duty [572]to make known. Such a contract was against public policy, and neither party should receive the aid of the courts to enforce it. (Beard v. Beard, 65 Cal. 356.)