It is doubtless possible for the law to make even an attempted executed sale with transfer of possession so absolutely void that no title passes to the buyer; but the mere fact that a sale is against public policy or in violation of statute does not have this effect. The distinction is less important than it might seem at first sight, because even though the buyer is held to acquire no title, the seller on account of his illegality is precluded from attacking the conveyance, and if no other person has a claim to the goods or other property conveyed, the buyer's possession necessarily remains undisturbed. Whatever the reason for the result, the result itself is clear.63 Though the seller is thus unable to rescind where the property and possession have both been parted with, it seems that if possession is retained even though the property has passed, the seller may virtually rescind the transaction. For the buyer cannot establish a right to the goods, and by virtue of his former ownership the seller can maintain an undisturbed possession against the world.64 Where money has been paid for illegal services which have been rendered; the payment cannot be reclaimed;65 and on the other hand one who has received illegal consideration or perform in whole or in part illegal acts stipulated for in a contract can not recover reasonable compensation for what he has done but if a contract is prohibited merely for the protection of class of persons, such a person may waive the prohibition or the acts estop himself from asserting the invalidity, in which case the court will authorize a recovery on quantum meruit, quantum valebat.67 To the general rule that an executed tranfer fer cannot be set aside, there are, however, exceptions which may be included either under the head of an unexecuted illegal purpose or of parties not in pari delicto.
61 United Shoe Machinery Co. v. Bamlose, 231 Mo. 508, 529, 132 S. W. 1133: British-American Portland Cement Co. v. Citizens' Gas Co., 255
Mo. 1,164 S. W. 468. See also Cashin v. Pliter, 168 Mich. 386, 134 N. W. 482, Ann. Cas. 1913 C. 697. 62 Mechem, Agency, Sec. 1332.
63 Ayerat v. Jenkins, L. R. Id Eq. 275; Dent v. Ferguson, 132 U. S. 60, 33 L. Ed. 242, 10 S. Ct. 13; St. Louis, V. & T. H. R. Co. v. Terre Haute, etc., R. Co., 145 U. S. 303, 407, 36 L. Ed. 738, 12 S. Ct. 953; Savings, etc., Trust Co. v. Bear Valley Co., 112 Fed. 603, 702; Dunkin v. Hodge, 46 Ala. 523; Hubbard v. Sayre, 105 Ala. 440, 17 So. 17; Branhan v. Stallings, 21 Colo. 211, 40 Pac. 396, 52 Am. St. Rep. 213; Johnston v. Allen, 22 FLa. 224, 1 Am. St. Rep. 180; Thompson v. CummingB, 68 Ga. 124; St Louis, J. & C. R. Co. v. Mathers, 71 III. 592, 598, 22 Am. Rep. 122; Bishop v. American Preservers Co., 157 IU. 284, 41 N. E. 765, 48 Am. St. Rep. 317; Winchester Electric Light Co. v. Veal, 145 Ind. 506, 41 N. E. 334, 44 N. E. 353; Setter v. Alvey, 15 Kans. 157; Ratcliffe v. Smith, 13 Bush, 172; Myers v. Mein-rath, 101 Mass. 366, 3 Am'. Rep. 368; Traders' Nat. Bank v. Steere, 165 Mass. 389, 43 N. E. 187; Moore v. Adams, 8 Ohio, 372, 32 Am. Dec. 723; Hooker v. De Palos, 28 Ohio St. 251; Perkins v. Savage, 15 Wend. 412; Booker v. Wingo, 29 S. Car. 116, 7 S. E. 49; Singer Mfg. Co. v. Draper, 103 Term. 262, 52 S. W. 879; Beer v. Landman, 88 Tex. 450, 31 S. W. 805; Dixon v. Olmstead, 9 Vt. 310, 31 Am. Dec. 629; Miller v. Larson, 19 Wis. 463; Cohn v. Heimbauch, 86 Wis. 176, 56 N. W. 638. But see Savings Bank v.
National Bank, 38 Fed. 800; Harrison v. Hatcher, 44 Ga. 638; Kirkpatrick v. Clark, 132 111. 342, 24 N. E. 71, 8 L. R. A. 511, 22 Am. St. Rep. 531; Perry v. Berger, 85 Neb. 753, 124 N. W. 133; Lockren v. Rustan, 9 N. Dak. 43, 81 N. W. 60; Drinkall v. Movius Bank, 11 N. Dak, 10, 88 N. W. 724, 57 L. R. A. 341, 95 Am. St. Rep. 693; Still v. Buuell, 60 Vt. 478, 12 Atl. 209; Heckman v. Swarts, 50 Wis. 267, 6 N. W. 891. Some of the foregoing cases relate to real estate, and some to personalty. There seems no reason to distinguish them in principle. A dictum of Martin, B., in Pearce 0. Brooks, L. R. 1 Ex. 213, 217, to the effect that an executed illegal sale of chattels might be rescinded seems clearly erroneous, and opposed to the view ordinarily taken in England. See Taylor v. Chester, L. R. 4 Q. B. 309, 311, 135. In United Shoe Machinery Co. v. Ramlose, 231 Mo. 508, 132 S. W. 1133, the court sustained an action of replevin by the lessor of certain shoe machinery to recover it from the lessee though the lease was illegal.
64 Wald's Pollock, Contracts (3d ed.), 488; Singer Mfg. Co. v. Draper, 103 Tenn. 262, 52 S. W. 879. See also supra, Sec. 1704.
65 Fairweather v. McCullogh, 43 D. L. R. 525, and see cases cited in the following section.