
    Kitchen and Wife v. Coffyn.
    
      A. being the owner of a tract of land under mortgage, agreed, by title bonds, to convey a part of it toZ>. and the residue to C., with the agreement that C., with the consent of the mortgagee, might apply the purchase-money to the discharge of the mortgage on his part. The mortgagee having assented, B., with the fraudulent purpose of getting his part of the land also released from the mortgage, as a part of the land purchased by C., arranged with A. and G. that A. should convey the entire tract to C., that C., upon paying the purchase-money for his part of the premises, should fraudulently procure a release by tlie mortgagee of the whole of the premises, and then convey to B. the part of the premises which A. had agreed to convey to him. C. having fraudulently procured the release of the whole premises upon the payment to the mortgagee of the purchase-money for his part, and having refused to convey to B. as he had agreed, B. filed his bill for a specific performance. Held, that the bill would not lie.
    APPEAL from the Decatur Circuit Court.
    
      Monday, December 12.
    
   Perkins, J.

Bill in chancery to obtain an injunction restraining proceedings in an ejectment suit, and to obtain a conveyance of land. Decree below for the plaintiff.

The bill states that one Elisha Stout was the owner of a certain tract of land; that said land was mortgaged to Carlisle, of Cincinnati, Ohio, for a fraction less than 2,100 dollars; that said Stout sold a certain parcel of said mortgaged premises to said Coffyn, receiving therefor the full consideration; that he sold a certain other parcel of said mortgaged premises to Kitchen, one of the defendants to the bill, for the consideration of 1,800 dollars, which sum Kitchen was to pay to Carlisle on his mortgage, said Car-lisle agreeing, on said sum being paid, to release the portion of the premises purchased by Kitchen from the operation of the mortgage. We will now quote from the bill:

“Your orator further shows unto your honors that some short time after the making of said title-bond as last aforesaid, said Kitchen made an arrangement with said Carlisle, in relation to said mortgage given by said Stout to him, said Carlisle, the precise terms and stipulations of which are unknown to your orator, by which it was agreed by and between said Kitchen and said Carlisle, that said Carlisle would release his said mortgage from so much of said mortgaged premises as said Stout had sold and was about to convey to said Kitchen, so as to enable said Stout and wife to convey the same to said Kitchen free and clear from all incumbrance; and the said Stout being also desirous to convey to your orator said tract [purchased by him of said Stout as above stated] free and clear of all incumbrance, and the same being also in-eluded in the premises mortgaged to said Carlisle as aforesaid, and your orator being also desirous to receive such title from said Stout and wife, it was therefore agreed by and between said Kitchen, Stout, and your orator, that said Stout and wife should convey the tract sold by said Stout to your orator, to said Kitchen, together with and in the same deed of conveyance and with said tract so sold to said Kitchen as aforesaid, for the purpose of having said tract (that sold to your orator as aforesaid by said Stout) also released from said mortgage, and that said Kitchen and wife should then immediately re-convey the same to your orator.” The bill proceeds to aver, that to carry out the arrangement, Stout did convey the land sold to Coffyn, as well as that sold to Kitchen, to said Kitchen, and that Kitchen got it all released from the mortgage mentioned, but that he then refused to convey to said Coffyn, &c. Without extending the statement, we may say that it appears from the whole bill that the ground of complaint, and the manner in which it arose, are as follows: Car-lisle had a mortgage of over 2,000 dollars on land of Stout. Coffyn purchased and paid for a certain portion of that land. Kitchen purchased, for 1,800 dollars, a certain other portion of it, but before paying for it, arranged that the purchase-money should go to Carlisle, he releasing the premises purchased by said Kitchen from the mortgage. The idea occurred to Coffyn that it would be wise in him to get his purchase also released; and to accomplish it, he arranged with Kitchen and Stout that it should be conveyed to Kitchen in the same deed that conveyed the part purchased by him, and apparently as composing a part of said Kitchen's purchase, so that he might, without paying any additional consideration to Carlisle, and by an imposition upon him, get it all released from the mortgage, thus depriving Carlisle of his security for the balance left unpaid on his mortgage debt, and giving Coffyn a clear title through Kitchen; that all this being accomplished, except the conveyance from Kitchen to Coffyn, said Kitchen now refuses to execute the conveyance to said Coffyn as stipulated, and, hence, the aid of a court of equity is invoked to compel him to do it.

A. Davison, for the appellants.

J. S. Scobey, for the appellee.

The bill was demurred to below, and the demurrer was overruled.

It is a well settled rule that to entitle a party to the aid of a Court of conscience, he must enter that Court with clean hands, so far as relates to the particular case which he presents to the Court, and in which he prays for aid. In Creath's administrator v. Sims, 5 How. (U. S.) R. 192, it is said—“ The complainant alleges that the obligation to which he had voluntarily became a party, was intentionally made in fraud of the law, and for this reason he prays to be relieved from its fulfillment. This prayer, too, is preferred to a Court of conscience—to a Court which touches nothing that is impure. The condign and appropriate answer to such a prayer from such a tribunal is this: that, however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto; you cannot be admitted here to plead your own demerits; precisely, therefore, in the position in which you have placed yourself, in that position we must leave you.”

So, in the case before us, Coffyn has hazarded his property in a scheme to defraud Carlisle, and he must escape from the hazard as best he can, without the aid of a Court of Chancery.

The demurrer to the bill should have been sustained, and the bill dismissed.

Per Curiam.

The decree is reversed with costs. Cause remanded, with instructions to the Circuit Court to dismiss the bill. 
      
       Davison, J., having been concerned as counsel, was absent.
     