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Hall v. Erwin.

ing to succeed would be repugnant to every idea of justice, and shock the moral sense.

It is claimed in behalf of the plaintiff, that the defendant has no right to inquire into the particulars of the bargain between the plaintiff and the mortgagee. That inasmuch as the assignment in question was made with the intent, and for the express purpose, of having the title to the bond and mortgage transferred from the mortgagee, it is of no consequence to the defendant, whether the plaintiff has acted in good faith with the mortgagee, or not; that the assigument is conclusive upou the defendant. This was the view which seems to have been taken. at special term, as appears from the opinion of the learned justice before whom the action was tried. It was there held that whatever might be the rights and equities of the mortgagee against the plaintiff, they were not available to the defendant, who was not privy to the arrangement, and was in no way interested therein when it was made. But this argument proceeds rather upon form and color tban substance. The rule is quite different when the assignee holds mala fides. Ex dolo malo non oritur actio, is a maxim of very wide, if not universal application. It applies even to the holder of commercial paper, and more strongly to assignees of choses in action. It has been held in the case of a negotiable note, that if the defendant can sbow that the plaintiff obtained it by his own fraudulent act, he has a right to defeat the action on that ground, although he may be liable to pay the note to the true owner. Oakley, J., in delivering the opinion in Talman v. Gibson, (1 Hall, 308,) says: “This proceeds on the general doc

“ trine that no man can acquire a right by his own fraud, to sustain an action in any court; and it is a principle of universal application.” (City Bank of New Haven v. Perkins, 29 N. Y. 554.) It is a question of title, and right of action, which a defendant may always controvert by way of defense, Fraud avoids all contracts, and transfers

Hall r. Erwin.

of title, into which it enters, at the election of the party defrauded. That the mortgagee here elected to repudiate the plaintiff's claim of title, and took measures to defeat it, of which the plaintiff had due notice, is undeniable.

It is said, however, that in any event the plaintiff, by the agreement, coupled with the formal assignment, acquired a right and equity in the bond and mortgage, to the extent of his judgment of $700, which he had the right to pay and satisfy out of the avails, when the securities should be negotiated and assigned. But it is a fundamental rule of equity, not to recognize or protect any claim which is presented by unclean hands. In addition to this, moreover, the evidence shows that after the plaintiff had made up his mind to keep the bond and mortgage, and set up title to it under his assignment, he refused to satisfy that judgment out of it, and forbade the sheriff to release his levy. He retains his levy contrary to the agreement, and the judgment must be deemed to be satisfied by the levy, while it remains. It is too late for him now to fall back upon that right, which he has once so unjustly disclaimed and cast aside. The whole case exhibits, most unmistakably, a deliberate plan and scheme on the part of the plaintiff, to obtain by artifice and deceit, a formal assignment of the bond and mortgage, and then to set up title and seek to hold them, in satisfaction of, or as a counterclaim to, another demand, which he had shortly before purchased against the mortgagee and a third person, and which he knew the mortgagee was unable and unwilling to pay in that way. But the plaintiff has not attempted to apply the bond and mortgage, or the value thereof, in satisfaction of that claim even. On the contrary, he has resisted such application, when sought to be enforced by the third person and party to the last indebtedness. He has paid nothing on account of the bond and mortgage, to any one, and refuses to perform any part of the agreement on which he obtained possession and a formal transfer of

Clemens v. Clemens.

those instruments. It appears to me a very plain case, of a party attempting to obtain title and a right of action, through sheer deceit and fraud ; which the law will neither uphold nor tolerate. The court, at special term, erred, therefore, in holding that the plaintiff, by means of that transaction, had required a title to the bond and mortgage, and a right of action against the defendant.

The judgment must, therefore, be reversed, and judgment ordered for the defendant, for his costs of the action and the appeal.

[Fourth DEPARTMENT, GenerAL Term, at Rochester, September 4, 1871. Mullin, P.J., and Johnson and Talcott, Justices.)

JAMES B. CLEMENS vs. JAMES C. CLEMENS, Jr., and others.

60 306 37a 59

Where one of two trustees disclaimed acting as trustee, by an answer in chan

cery, in Missouri; Held that his subsequent death, without ever assuming the trust or claiming a right to act, made valid that disclaimer, and vested all the estate in the surviving trustee, and the cestuis que trust were bound by

the decree in that suit. Where the objects of a trust, in a will executed in Missouri, as to charity, as

to accumulation, as to the limitatation for more than two lives, &c., were clearly void, under our laws, and could not be enforced here; and these provisions were so connected with the whole trust, and dependent upon their connection with the residue, that no part of the trust could be carried out without working injustice, and giving to a portion of the testator's family a larger share of the estate than was intended, if the whole trust could hare been sustained; Held that the testator's objects would be much better accomplished by declaring the whole will void than by sustaining only small

portions of the instrument. Where proceedings in partition were in accordance with the act of 1831, which

authorized publication against infant defendants who were non-residents, it

was not necessary to appoint a guardian, unless they appeared. The act of 1833, it seems, was not applicable to cases of non-residents; but it

provided for cases where infant defendants were served and did not appear.

In such cases, the court could, on application, appoint guardians for them, But even if guardians for non-resident infants who do not appear are neces

Clemens v. Clemens.

sary, the omission to appoint them is but an irregularity, which must be taken advantage of promptly. The objection cannot be raised by a purchaser, when the infants have for some years been of age, and when a motion, if made, would be denied on account of the delay.

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proven here.

OTION to compel a purchaser (Mr. Martin) to com

plete his purchase of certain lots sold under the judgment in this action.

The property was ordered to be sold under a judgment in partition. Objections were made to some defects in the proceedings, and on account of the supposed existence of a will of John Mullanphy, made in 1830. This will was admitted to probate in Missouri, but had never been

It was said to be lost, and the witnesses were dead.

John Mullanphy, who was domiciled at St. Louis, Missouri, died there on the 29th of April, 1833. He left a large estate, real and personal, some part of the former situate in the city of New York. He left a widow and seven children surviving him; another child—a daughterhad died in his lifetime.

After his death, an application was made to the county court of St. Louis for probate of a will alleged to have been made by him, and to have been destroyed or lost. The application was denied; and on appeal to the circuit court, that decision was affirmed. But on appeal to the Supreme Court, it was reversed, and probate was granted, of the alleged will. This alleged will contained several bequests. The residue of his estate, real and personal, was bequeathed and devised in fee to trustees, upon certain trusts. The trustees were John O. Fallon, Thomas Biddle and George Collier. Biddle died before the testator; Collier expressly renounced, and refused to qualify or act as trustee. Fallon qualified as executor.

Subsequently, in a suit in equity, it was decided by the circuit court, in Missouri, that the bequest and devise of the residuary estate were invalid and void. And the heirs

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Clemens v. Clemens.

at law executed deeds by which each took from the others one undivided seventh part of the estate.

In August, 1840, a suit was commenced in the court of chancery in this State, stating the foregoing facts as to the alleged will, and making all the children of John Mullanphy, and the children of his daughter Jane, (Mrs. Chambers,) two of whom had been born after John Mullanphy's death, parties. The object was to have a partition, and for that purpose, to have the respective rights of the parties declared. All of the defendants (including Mrs. Chambers' children) were non-residents. An order for public cation, &c., was duly made, and none of the defendants appeared. An order was made declaring that the surviving children of John Mullanphy were seised of the estate in equal shares; ordering a sale of a certain part of the land; and dividing the residue among such children. Afterwards, in consequence of the death of some of the parties, a bill of revivor was filed, and the cause proceeded to a final decree. A part was sold in 1851, and the remainder was partitioned. Mrs. Clemens, one of the children, having died, her estate descended to the plaintiff and other children, who commenced a suit for partition of it. Judgment was rendered, and a sale ordered; and at that sale Mr. Martin was the purchaser.

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INGRAHAM, J. There are various objections taken to the granting of this motion. Such of them as I think material I will notice specially.

An objection is taken to the omission of one of the persons claimed to be trustees under the will, as a party. At the time of bringing the suit, he was alive, but had disclaimed acting as trustee. This was in an answer in chan

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