Page:Harvard Law Review Volume 10.djvu/398

3/2 HARVARD LAW REVIEW, made default in the payment of rent, and finally the lessor resumed pos- session. This was an action against a surety, on a bond conditioned for the performance of the lessee's covenants, to recover the amount of the rent that accrued while the lessee was in actual possession. The court, Vann, J. dissenting, affirms the judgment for the plaintiff, going squarely on the theory that the lessee was liable to this extent on the lease. In delivering the opinion of the majority, Andrews, C. J., says, " We think the demands of public policy are fully satisfied by holding that, as to the public, the lease was void, but that, as between the parties, so long as occupation under the lease continued, the lessee was bound to pay the rent, and that its recovery may be enforced by action on the covenant." "I'his is not affected by the quasi public nature of the corporation, Whether a lessee can escape further liability on the lease by abandoning possession is left an open question. This decision throws additional light on the court's view of the require- ments of public policy. Direct proceedings by the State afford sufficient remedy for violations of the charter, while honesty and fair dealing de- mand that payment should be made for benefits received. To reach this result by implying a contract, after holding the actual contract void, is mere evasion. This result is in line with the position taken by Mr. Mora- wetz. As the elements of contract are present and there is no illegality in the proper sense, to allow recovery on the contract where either party has performed best satisfies the requirements of public policy. Until there is performance the contract is voidable. 2 Morawetz, Corp., §§ 650, 685, 689. But where shall the line be drawn? If the contract is good in part, will the court give damages for breach of the unexecuted part? If so, what performance will be required to bring about this result? It has often been said that performatjce cannot give validity to that which is void in its inception. Mr. G. W. Pepper, in an article in 9 Harvard Law Review, 255, 269, points out theoretical difficulties that confront a court, which, taking this view of public policy, is yet unwilling to hold all corporate contracts binding upon the parties. Conditions in Restraint of Marriage. — A condition annexed to a testamentary gift, to the effect that, if the donee marries, the property shall vest in another, is void as against public policy, and the gift is treated by the courts as absolute. Stated in its baldest form, the rule is this, that conditions in general restraint of marriage are illegal. Simple and intel- ligible as this appears at first sight, the subtleties it has given rise to are endless. For example, one who explores the mysteries of the doctrine meets at the outset a well established exception. If the gift is to a widow or widower the condition is valid, that is, the rule does not apply to second marriages. An ilhistration of this is to be found in the late Tennessee case of Herdv. Cafron, 37 S. W. Rep. 551, where a testator devised land to his widowed daughter with a proviso that, if she married again, the land should go to her son. She did marry, and the court held that the gift over took effect. The reason for the general rule is of course to be found in the injury which the promotion of celibacy inflicts upon the state. The prevention of second marriages is naturally not deemed such an in- jury, and this exception to the rule is universally recognized. Difficult questions often arise in determining what is a "general" re-