
    *Gibbons v. Jackson.
    July, 1839,
    Lewisburg.
    (Absent Uhooke, J.)
    Fraudulent Assignments and Purchase — Principal and Agent — Declarations of Assignee. — A vendor binds himself to convey to the vendee, in fee, a certain lot upon the payment of the purchase money. No part of the purchase money being paid, an arrangement is made by an agent of the vendor with the vendee’s devisee, by which she is to have the lot during her life, and the vendor is to have the reversion. The vendor then, for value received, sells the lot to another person, to whom he executes a bond to mate him a deed, with a reservation of the life estate of the devisee. After this, the agent who had made the arrangement with that devisee, procures from her an assignment to himself of the title bond originally executed to her devisor. He obtains the assignment without agreeing to give her any consideration but that already provided Cor her, to wit, the life estate, and he obtains it with full knowledge of the sale to the second vendee, and of his having paid the purchase money. The same agent deals also with the second vendee. He does not communicate to the second vendee the fact of the arrangement made by him, on behalf of the vendor, with the first vendee’s devisee, but represents the bond to the first vendee as being still valid, and as taking from the vendor all right to convey the lot to the second vendee ; and the second vendee, in ignorance or misapprehension of his rights, makes to the agent an assignment, for a pecuniary consideration. of the title bond executed to him hy the vendor. Help, 1. the arrangement made by the agent, on behalf of his principal, with the devisee of the first vendee, cannot be defeated by that agent for his own benefit, and the assignment to him by the devisee gives him no right whatever ; and 2. the ignorance or misapprehension under which the assignment was made by the second vendee, having been produced in some measure by the declarations and conduct of the assignee during the negotiation, the claim under that assignment is also unsustainable.
    On the 16th of January 1811, William Robinson junior executed a writing under his hand and seal, whereby he acknowledged that he was bound to Arge Allen to convey to him in fee simple the out lot numbered two, *in Parkersburg, upon his payment of the purchase money specified in his two notes of equal date therewith, for 94 dollars 37 cents each, one payable the 1st of September 1811, the other the 1st of September 1812.
    Arge or Argy Allen was a coloured man, and lived upon the lot mentioned in this obligation, when he made his will, on the 5th of November 1829. By his will, he devised the lot to his wife Jenny. The will was proved and admitted to record in Wood county court, at July term 1830.
    Robinson living at Pittsburg, and desiring to make some arrangement with the widow of Argy Allen, made the negotiation through John J. Jackson. On the 4th of August 1831, Jackson wrote to Robinson in these terms: “Argy Allen’s widow has acceded to the proposition you made, to give her a lease for life, and she to recon-1 vey to you the lot. The papers will shortly be prepared.” On the 27th of October 1831, Jackson wrote to Robinson as follows: “Agreeably to your directions, I have made an arrangement with the widow and dev-isee of Argy Allen as to the lot he purchased, and she has executed a deed to release and reconvey the lot to you, on your executing to her a lease for life for the lot. This is in exact accordance with your instructions.”
    Robinson seems to have been under the impression that the lease for life was executed; for on the last letter there was this indorsement, in his handwriting: “The lease for life to the widow of Argy Allen executed in due form, some time subsequent to the date of the within. Wm. Robinson jr. ”
    On the 2d of August 1832, Robinson executed a writing under his hand and seal, witnessing that he had sold the lot to Jefferson Gibbons, and had received 100 dollars as consideration in full for the same, and that he bound himself to Gibbons to make and execute a deed for said lot, with the reservation of the life estate granted by Robinson and wife to the widow of Argy Allen.
    ^'Accordingly, a deed was executed by Robinson and wife to Gibbons, conveying the lot, and warranting the same against all claims, “with the reservation of a certain part of said lot to the use of the widow of Argy Allen, meaning that part she has enclosed and in cultivation, on the lower side of Pond run, for the period of her life or stay on said lot, and no longer, being the life estate granted to her by said Robinson and wife.” This deed bore date the 2d of August 1832. It was acknowledged before justices the 24th of that month, and admitted to record the 8th of April 1833.
    Between the date of the conveyance to Gibbons and of the record thereof, Jackson attempted to acquire a right to the lot. He obtained possession of the title bond from Robinson to Arge Allen, with an in-dorsement thereon under the hand and seal of Jenny Allen, stating that, for value received, she assigned and set over to John J. Jackson the within covenant, in as ample and full a manner as the same was available to her. This assignment bore date the first of September 1832. It was sighed by Jenny Allen with a mark, and was attested by B. Willard.
    Jackson also induced Gibbons to deliver up Robinson’s title bond to him, and procured’ Gibbons to sign and seal a writing indorsed thereon, expressing that in consideration of the sum of 108 dollars So cents to him in hand paid by Jackson, he assigned, transferred and set over the within covenant and agreement, and moreover that he released, assigned and set over all right, interest and claim he might have to the lot, to Jackson. The date of this assignment was the 26th of February 1833.
    Nevertheless Gibbons brought an action of ejectment for the lot. The declaration and notice were served before September term 1833 of Wood circuit court. Jane Allen and John J. Jackson were the defendants. At April term 1835, the jury found a verdict for the ^plaintiff, subject to the reservation contained in the deed of Robinson and wife to Gibbons, in favour of Jane Allen. Judgment was rendered accordingly, and a; writ of possession awarded.
    Thereupon, Jackson filed his bill on the chancery side of the court, setting forth the sale to and possession of Argy Allen ; stating that the two notes mentioned in his title bond were left in the hands of Thomas Neale deceased, who for several years acted as the agent of Robinson; and charging that Neale received of Argy Allen, in part of the said notes, to the amount of 150 dollars or upwards. The bill states that the notes have been lost and the complainant does not know whether the amount paid was credited or not. After mentioning the devise to Jenny Alien, and her assignment to the complainant, for which he says he secured to her a valuable consideration, he states that under the said assignment he entered into possession, intending to pay off to Robinson the balance due on the notes, and procure a deed, should he be mistaken in a point of law, on which, until the term of court just ended, he had not supposed there could be any doubt, viz. that Allen and his devisee having the uninterrupted possession of the lot for 20 years, there was brought to such a possession the legal title. The title bond from
    Robinson to Gibbons is afterwards mentioned, and it is charged that both Gibbons and Robinson well knew, when the same was executed, that Jane Allen was living on the said lot. The bill then proceeds as follows: “Your orator further charges that after the said Gibbons returned from Pitts-burg, your orator suffered him to cut and remove some very large trees that stood on the said lot, as he had others which were obstructing the view between your orator’s house and the river. But the said Gibbons being about to sell a part of the said lot to Tarlton Brown, and the said Brown being about to erect a house on said lot, your orator interfered and forbade the building *of the said house, and called on the said Gibbons, gave him a copy of the title bond and assignment, explained to him the title of your orator, and also added that your orator did not attach much importance to the lot, except that part of it which was immediately in front of your orator’s house, and to that he attached no other importance except to prevent any person building to intercept the view of the river in front of your orator’s house, and that if he would bind himself that no building should be put úp on that part of it in front of your orator’s house, your orator would give him the benefit of the contract he had made with Jane Allen ; and told the said Gibbons to take copies of your orator’s papers, submit them to counsel, and give him an answer the next evening; giving him 24 hours to decide. Your orator charges that the matter rested so until the 26th of February 1833, when the said Gibbons came to the office of your orator, and after a great deal of desultory conversation, informed your orator that he did not care any thing like as much for the lot as he had done; that he had contemplated to build on it, but had altered his mind; that he was looking for mr. Dodge, to whom he owed a considerable sum of money; and he proposed to your orator, that if your orator would give him his money that he had paid, and interest, and his expenses to Pittsburg, he would relinquish his claim to your orator. After some reflection and conversation, your orator informed him that for the sake of peace, and to prevent hard thoughts, he would do it. The assignment was then written, and presented to Gibbons for signature. He insisted on some alteration: it was made. The paper was then given to Gibbons for signature. Your orator went to the house for the money. When he returned, Gibbons had signed it, and he paid Gibbons the amount he had paid Robinson, the interest, and his expenses to Pittsburg. He heard no more on the subject until April, when, the value of property, in *the estimation of some, having undergone a considerable improvement, Gibbons applied to your orator to rescind the contract. Your orator declined. He then instituted an action of ejectment.” Gibbons and Robinson are made defendants. The prayer is, that the complainant may have a decree for the legal title, on the bond to Allen, or on the assignment from Gibbons; that Gibbons be injoined from enforcing his judgment; that he be decreed to convey whatever title he has, to the complainant ; and for general relief.
    The injunction was awarded.
    Gibbons answered, denying that Neale was the agent of Robinson in the matter of the lot, or in any other matter connected with this transaction. Argy Allen never pretended that he had paid, either to Robinson or his agent, any money on account of the lot. His complaint was that he had deposited with Neale some part of the money, to be by him paid over to Robinson or his agent, and that this had not been done, and he would lose the money. At that time Jacob Beeson was the agent of Robinson. After Beeson’s death, the complainant became either a general or special, agent of Robinson respecting these town lots, or at least gave out that he was. The agency of the complainant in rescinding the contract between Robinson and Argy Allen is then detailed, and it is charged that the assignment by Jenny Allen to the complainant was antedated, and that for it no other consideration was given to Jennj' Allen than what Robinson had before provided for her. What transpired after the respondent went to Pittsburg for the purpose of buying the property, is stated by him as follows: “After purchasing it, he returned to Parkersburg, and not getting his deed as soon as promised, he became uneasy and somewhat alarmed about it. The complainant, who owned the property on the opposite side of the street, finding out that this respondent was about putting up a building upon the lot, came to him 'x'and claimed the lot as his own, affirming in strong and solemn language that Robinson had no power to sell the same, that Argy Allen had bought the property, and that he had bought Argy Allen’s right to it, which was a good and indefeasible right, and would hold the property in spite of Robinson; and further intimated, in pretty strong terms, that the bond given by Robinson to respondent was valueless, not being binding, and expressed great doubts whether Robinson would ever refund to respondent the purchase money for the lot which he had received, and at the same time proposed to this respondent as a matter of favour, that he would en-deavour to get back the money from Robinson for him. This respondent, being a man wholly unacquainted with law, and confidently relying upon the legal knowledge and opinion of the complainant (who is a lawyer of very high professional standing in Parkersburg, Virginia, the scene of these transactions, and a practitioner there) and also relying upon his representation of facts as to Robinson’s want of means or inclination to refund the money paid him, and being also not a little influenced by a remark of complainant’s, that he would not take the same trouble for any body else, nor would he do it for him, but for the respect he felt for the family, inasmuch as respondent’s wife was a member of the same church to which he the complainant belonged — or words to that effect,— (and in truth the complainant was at that time a regular member in full communion with a certain class of Christians) — this respondent, thus confidently relying upon the opinion thus expressed by him in relation to the bond of Robinson, in a legal point of view, and upon his morality and integrity as a man and a Christian, in his communication of facts, consented to receive back his money and yield the lot, and accordingly surrendered up the title bond of Robinson to him; upon which the complainant sat down to write the matter on the back of it, which this respondent *not understanding, declined to sign ; but on the complainant’s representing to this respondent, that it was necessary for him to have something to shew Robinson that he had paid the money back to respondent, in order that he might get the money out of Robinson, whose agent he represented himself to be, your respondent signed the paper, — not for the purpose to which it is now ought to be applied, viz. a transfer of his right to the lot, but simply for the purpose of furnishing complainant with the evidence, that he had, for and on account of Robinson, refunded back the money that he (Robinson) had received for the lot from respondent. Some months after this occurrence, the deed for the lot from Robinson and wife to this respondent was brought down the river from Pittsburg, where it had been, some months before, duly executed, acknowledged and deposited for this respondent. ” The respondent then mentions circumstances which led him to take- an unfavourable view of the complainant’s conduct, and determined him to probe the matter. “Accordingly” (the answer proceeds) “he called upon complainant, and mentioned to him the conversation had between them, the representations he had made to him, the fact of his not only suppressing the knowledge he had ,of the Argy Allen contract being abandoned, but also of his representing it as a good, subsisting equitable title, indefeasible in equity, — the fact of his not having drawn on Robinson for his money, and the fact of the arrival of his deed from Robinson for said lot, contrary to his expectations and complainant’s representations ; when, to his surprise, for the first time he learned that the writing that he had been prevailed on to sign was now said to be, not evidence that complainant had advanced money to respondent for Robinson, but an actual assignment of all respondent’s right, title, interest and claim of, in and to the lot aforesaid.” The respondent states that he then tendered to complainant the money he had ^received of him, and demanded a surrender of the papers; but here-fused to receive the former, or yield the latter; and thereupon the respondent brought his action of ejectment.
    Robert S. Smith deposed, that in 1825 or thereabouts, deponent went with Samuel H. Ritzhugh (who was appointed a receiver by the chancellor in a case between Robinson and Doddridge) to the residence of Argy Allen; when Fitzhugh told Allen, he had, as receiver, a claim against him for the purchase monej’ for the lot. Allen replied, that he had paid Thomas Neale for the lot, but Neale had broken up, and he (Allen) had nothing to shew for the payment. Fitzhugh then told Allen, if he did not pay for the lot, he (Fitzhugh) would be obliged ,to bring a suit against him to recover the purchase money. Allen replied, he was not able to pay the money; and after some further conversation, it was agreed by Fitzhugh and Allen, that Allen should .give up the lot. It was either so agreed, or else Fitzhugh proposed to Allen to give up the lot, to prevent a suit; but whether it was the one or the other that made the proposition, deponent does not distinctly recollect. At a subsequent period, in a conversation between Robinson and Allen, deponent being present, Robinson told Allen, that if he would give up the lot, he might retain possession of it as long as he lived; and deponent sa3's that Allen did live on the lot till the day of his death.
    Benjamin Willard, a witness for the complainant, who drew the will of Argy Allen, deposed to Allen’s conversations about the payments made by him; his saying that his widow, without the interposition of friends, might in her old age be deprived of a home; and his requesting the witness to use his best endeavours to effect the best practicable arrangement with Robinson for the benefit of his widow. Willard deposed that he, on behalf of Jenny Allen, had several interviews with Jackson as the agent of Robinson, and after the lapse of *'more than a year from Allen’s death, Jackson informed deponent that he had made the desired arrangement. Deponent was directed by Jackson to prepare a lease for the lot to Jenny during her life, to be executed by Robinson, upon the execution and return of which, Jenny was to execute a release to Robinson of all her right and title to the lot, to take effect from her death. The lease was prepared accordingly.
    It bore date the first of October 1831, and, after mentioning the purchase by Argy Allen, the two obligations executed by him, and the devise to his widow, states that he “departed this life on the 28th day of June 1830, leaving said obligations unsatisfied and unpaid, thereby constituting a good and valid lien on said lot in favour of said Robinson.’’ The grant to Jenny Allen is of lot No. 2, during her life, yielding to Robinson, yearly during the term, the yearly rent of 25 cents.
    Willard deposed that the lease so prepared was submitted to the inspection of Jackson some time in October 1831, and by his direction deposited with A. H. Creel, to be carried to Pittsburg; but deponent was repeatedly informed that the lease was not returned, and for that reason the release was not executed by Jenny.
    Waterman Palmer deposed that the lease was enclosed by Creel to him, along with other papers; that he shewed the same to Robinson, and Robinson declined to execute the lease, but told deponent he would write to Parkersburg on the subject. Deponent kept the papers for some time, and in the fall of 1834 returned them to John J. Jackson.
    The chief object of Creel’s letter to Palmer was to obtain a deed from Robinson to him Creel for another lot (No. 7). About Creel’s right to this lot, Robinson seems to have wanted information; and this probably was what caused the delay in executing the papers.
    The complainant acknowledged that the assignment of the title bond from Jenny to him was made after he *heard that Gibbons had purchased the lot. This acknowledgment was written at the foot of Willard’s deposition.
    Willard deposed that he procured the assignment at the request of Jackson. There was no money paid, but Jackson executed a covenant, b3r which he guarantied to Jenny, during her life, that part of the lot on this side of Pond run. Deponent cannot say positively whether he guarantied all on this side, or that part only which is enclosed.
    It was admitted at the foot of Willard’s deposition, that no part of the lot has been fenced, except that part which is reserved to Jenn3r by the verdict of the jury in the action of ejectment.
    The deposition of John A. Hutcheson, taken by the complainant, detailed a conversation at Pittsburg between the deponent and mrs. Robinson, which the deponent, on his return, repeated to Gibbons. The object of the complainant in taking this deposition was, to infer from the conversation, that there ivas reason at the time to doubt whether Gibbons would get a deed, and that this, together with the length of the time which had elapsed since the deed was to have been sent, was the cause of his making the arrangement with the complainant.
    Tarlton Brown proved Jackson’s offer to relinquish his right, if Gibbons would bind himself not to put up a building above the upper end of Jenny’s lot, in front of his house; and that Gibbons took a copy of the title bond from Robinson to Argy Allen, to see if it was a good one.
    Luther Edgerton detailed a conversation, in his store, between Jackson and Gibbons. Gibbons asked Jackson, whether Robinson would send him Gibbons the deed for the property he had bought of Robinson; saying, he had sent Robinson the money, and had his bond to make a deed. Jackson replied, that Robinson had not the right to make a deed, and that he Gibbons would lose his money, ^unless he got it back from Robinson. Jackson further said, that -if Gibbons would transfer the bond to him, he would pay him Gibbons the mone3T he had paid to Robinson, and run the risk of getting it back from Robinson. During this conversation, deponent believes Jackson said in substance, that Robinson had no right to make a deed, as he had parted with all his right to old Argy, and that consequently Robinson's bond to Gibbons was good for nothing.
    John Cross deposed that he brought to Gibbons the deed from Robinson, in the beginning of April 1833; and when Robinson gave the deed to deponent, he stated that it had been ready some time, but he had no previous opportunity to send it.
    Edgerton, in his deposition, after detailing the conversation already mentioned, testified that subsequently thereto, and before May 1833, another conversation between the same parties took place. Gibbons being in the store of deponent, Jackson came in, when Gibbons told Jackson he had received his deed from Robinson, and wished to get the bond back from him Jackson. Gibbons further said, he was ready to pay back to him Jackson the money he had received from him for the bond. Jackson said, he considered it a bargain, and should not give it up. Gibbons said that Jackson had deceived him ; and Jackson replied that he had not.
    The circuit court, on the 4th of April 1837, pronounced its decree: whereby it was adjudged, that the judgment be perpetually in joined; that Gibbons execute to Jackson a deed for the lot, with a reservation to Jane Allen widow and devisee of Argy Allen deceased, for her life, of the house occupied by her, and that portion of the lot which she had enclosed at the date of the deed from Robinson and wife to Gibbons, and with a covenant warranting against Gibbons and his heirs, and all persons claiming by, through or under him; and that each party pay his own costs, both at law and in that court.
    *Oa the petition of Gibbons, an appeal was allowed from the decree.
    Alexander II. H. Stuart for the appellant.
    William A. Harrison for the appellee.
    
      
      See monographic note on “Assignments" appended to Ragsdale v. Hagy, 9 Gratt. 409, and monographic note on "Agencies” appended to Stillman v. Fredericksburg, etc., R. R. Co., 27 Gratt. 119.
    
   STANARD, J.

The appellee sought by his bill, and obtained from the court below, an injunction to a judgment in an action of ejectment prosecuted against him by the appellant, and a decree for a conveyance from the appellant of the lot of land in controversy. His claim to the relief he sought was twofold: first, as assignee of a title bond of Robinson to Argy Allen, under an assignment of that bond to him by Jenny Allen the devisee of Argy; secondly, as as-signee of an obligation of Robinson to the appellant for the conveyance of the lot in question, under an assignment of that obligation by the appellant. The suit, having regard to either ground of claim, is essentially one for the specific performance of a contract, and the principles which guide the discretion of courts of equity in giving or withholding relief in such cases, should govern in ascertaining the relief that ought to be administered in this. One of those principles, and a fundamental one, is, “that the contract must be certain, fair, and just in all its parts; and if any of these ingredients be wanting in the case, the court will not decree a specific performance.” Buxton v. Lister, 3 Atk. 385; Ellard v. Ld. Llandaff, 1 Ball & Beatty 241. Under the influence of this rule, the aid of the court to enforce the performance of contracts has been refused where material facts have been concealed, or where the defendant resisting the execution of the contract entered into it under a mistake or material misapprehension of his rights, or of facts affecting those rights, especially if the plaintiff had had any agency in causing that mistake or misapprehension. Stanley v. Robinson, 1 Russell & Mylne 527 ; 4 Cond. Eng. Ch. Rep. 544.

*The appellee had no title to relief under the assignment he procured from the devisee of Argy Allen, of the title bond given by Robinson to Argy Allen. This is perfectly clear, and is conceded by his counsel. But still it is proper to take a brief view of that claim, because of the light it reflects on the situation of the parties to the other assignment, and the consequent influence it may have on the title to relief under that assignment.

In support of the claim under the assignment of Jenny Allen, the appellee, by his bill, suggests that about 150 dollars of the purchase money had been paid, and that he had given a valuable consideration for the assignment. There is, however, no proof, or attempt at proof, of the payment of one dollar of the purchase money. The evidence in the record distinctly shews that the appellee was agent of Robinson, and in pursuance of instructions from Robinson, had, in the fall of the year 1831, made an agreement with Jenny Allen for the surrender of the title bond, in consideration of a life estate to her in the lot. Though the evidence does not distinctly ascertain that this contract was carried into execution, yet it does not shew that there had been any rescission of it. In August 1832, Robinson, in his contract with the appellant, recognizes a contract with Jenny Allen, and treats it as one executed by him: and when the appellee obtained the assignment from Jenny Allen, he confessedly had full notice of the contract of Robinson with the appellant, and Jenny Allen agreed to receive, for the surrender or assignment of the title bond, the same consideration that Robinson had recognized as due and as having been secured to her. The stipulation of the appellee that she should have the consideration which had been provided for her in the contract of Robinson and the appellant, is all the consideration of the assignment to the ap-pellee, and therefore, in effect, none passed from him. The entire consideration *was already provided for her, and came from Robinson. The appellee, too, was the agent of Robinson, who had been charged with the duty of bargaining for the surrender of Jenny Allen’s interest. This being so, the assignment by her of the title bond enured to the benefit of Robinson. If Robinson had not sold to the appellant, I think it clear that he could have successfully resisted the claim of the ap-pellee under the assignment of Jenny Allen. A fortiori, that resistance could be made by a purchaser from Robinson.

The claim of the appellee under the assignment from the appellant is resisted by him, and he insists he ought to be absolved from his contract, on the ground (among others) that that assignment was procured from him under a misapprehension as to the right alleged by the appellee to exist under the title bond to Argy Allen, and the validity of that claim — a misapprehension produced, as the appellant alleges, by the concealment or misrepresentation of the appellee. The evidence .ascertains, beyond any reasonable doubt, that the appel-lee opposed to the claim of the appellant under his contract, the ostensible claim under the title bond of Allen, (of the assignment of which claim to the appellee, the appellant seems then to have had no notice;) that he insisted on the validity of that claim, and endeavoured to impress on the mind of the appellant the conviction that it was valid, that Robinson could not make him a title, and that he was in danger of losing his money. The evidence as clearly ascertains that the appellant would not have transferred or given up to the ap-pellee his contract with Robinson, but for the apprehension excited respecting the validity of the claim under the title bond to Allen; in producing which the appellee at least participated. The summary notice of the claim under the assignment of that title bond to the appellee has already shewn that that assignment, instead of reviving and aiding a hostile claim against Robinson or *his vendee, had, in point of law and equity, extinguished it, except to the extent that it was recognized and admitted by the contract between the appellant and Robinson; and no one can doubt that had this'been known to the appellant when he made the assignment to the appellee, that contract would not have been made.

Without adverting to other objections urged by the appellant to the relief sought by the appellee, and canvassing the law or evidence on which they rest, what has been said presents a case in which a decree for specific performance ought not to be rendered against the appellant. He ought, however, to return the money he has received from the appellee, because his justified resistance to the execution of his contract leaves the appellee without the consideration for which it was paid. It occurred to me at one time, that the court might and ought to make provision, in this case, to secure the repayment of that money to the appellee. But further reflection has satisfied me that it is neither necessary nor proper: not necessary, because the appellee has a plain and adequate remedy at law to recover it: not proper, because he had not come into equity for that redress; and that being the only claim which, in the view that has been taken of the case, the appel-lee has on the appellant, if he had asserted that claim only, there would have been no occasion to resort to a court of equity for redress, nor was that the proper forum in which to seek it.

I am of opinion that the decree of the court below is erroneous, and ought to be reversed, and instead thereof a decree rendered dismissing the appellee’s bill, and that the appellant recover his costs in this court and the court below.

CABEI/B, J.

The appellee’s bill, in one of its aspects, is a bill for specific execution. In all such cases, *the application is addressed to the discretion of the court; and it is a settled principle, that the plaintiff, to entitle himself to relief, must come in with clean hands and be free from all imputation. He must not have been guilty of any material misrepresentation or suppression of the truth in relation to the transaction.

Robinson sold the lot in controversy to Argy Allen in the year 1811, and gave him a bond to make a title. Argy Allen made his will devising the lot to his widow Jenny Allen, and died in 1830, having never received a deed, or paid any part of the purchase money. After Allen’s death, Robinson employed Jackson as his agent to make an arrangement with the widow and dev-isee of Allen, by which the sale was to be cancelled, and she was to release her interest'in the lot to Robinson, on his executing to her a lease of the lot for life, reserving only a nominal rent. This arrangement was actually entered into and agreed upon, between Jenny Allen on the one part, and Jackson, as the agent of Robinson, on the other. It seems, however, not to have been carried into formal execution; the failure to do which is not accounted for in the evidence. But there is no reason to believe that it was ever' revoked, annulled or objected to by either party, except possibly that the life estate of Jenny Allen may have been subsequently restricted to a part only of the lot. It is clear that she never afterwards claimed any title to the inheritance, and that Robinson, considering himself as owner, sold the lot to Gibbons, received the purchase money, and gave a bond to execute a deed, “with the reservation of the life estate granted by the said Robinson and wife to the widow of Argy Allen.” After this, Jackson, with full knowledge of Gibbons’s purchase and of his having paid the purchase money, procured from Jenny Allen an assignment to himself of the title bond which Robinson had originally executed to Argy Allen. For this assignment he gave no other consideration than his own covenant *that he would secure to her, during her life, the enjoyment of a part of the lot.

It is well established that an agent cannot make himself an adverse party to his principal. What then was the effect of this assignment to Jackson? Shall he be permitted to avail himself of it, so as to defeat, for his own benefit, an arrangement which he, as agent, had previously made for another? Certainly not. The law regards the assignment as enuring to the benefit of his principal, Robinson, and those claiming under him, and gives it the same effect as if it had been made directly to him or them. Jackson’s claim under this bond is therefore worthless.

His claim under the assignment of the bond to Gibbons is equally unsustainable in a court of equity. It is manifest that this assignment was made by Gibbons in ignorance or misapprehension of his rights; that this ignorance or misapprehension was produced, in some measure at least, by the declarations and conduct of Jackson during the negotiation; and that he would not have made the assignment, had he not been thus misled. He represented the prior bond to Argy Allen as being still valid, and as taking from Robinson all right to convey the land to Gibbons, when he well knew that it could not subserve that purpose; and he failed to communicate the material fact of the arrangement, made by his own agency, by which that bond was to be cancelled.

I am of opinion to reverse the decree, to dissolve the injunction, and to dismiss the bill; but without prejudice to any suit which Jackson may be advised to bring for the recovery of the money which he paid to Gibbons.

PARKER, J., and TUCKER, P., concurring, decree reversed, injunction dissolved, and bill dismissed with costs.  