from the government, although executed with all the forms of the law, when obtained in fraud of the rights of others, may, in an action of ejectment, be disregarded by the court as void at the instance of the injured party or those holding under him." In the course of the opinion it is said, by way of argument, that "it would hardly have been denied that a court of law would treat as a nullity a deed to the assignee, when it was established that the assignment was made and the deed obtained to defraud creditors, or to defeat a title previously obtained by a sale under an execution against the assignor." In Jamison v. Beaubien, 3 Scam. 113, 36 Am. Dec. 534, which was also an action of ejectment, the plaintiff's proof of title consisted of a certificate of pre-emption, and certain evidence tending to impeach the pre-emption on the ground of fraud being excluded by the trial court, this court, in holding that such exclusion was erroneous, said: “Fraud, it is said, vitiates all acts as between the parties to it; nor can there be a doubt that fraud is cognizable in a court of law, as well as equity. It is an admitted principle that a court of law has concurrent jurisdiction with a court of equity in cases of fraud. The evidence offered went directly to the validity of the certificate of pre-emption purchase. If it had its inception in fraud, it was certainly competent for the defendant to show the fact; and if the officers granting it were parties to the fraudulent act, it was no doubt void, and might be impeached in an inquiry in which the pre-emptor was a party." The case of Miller v. Marckle, 21 Ill. 152, was a bill in equity for the foreclosure of a mortgage, alleged by the mortgagor to have been executed without consideration, for the purpose of securing his property against his creditors until he could get means to settle with them, and this court, in holding that the defense should have been sustained, said: "If money has been actually paid, or property transferred, and the grantee put in possession, courts will not compel the money or property to be restored, or the party ousted. They will not, on the one hand, undo what has been done, nor on the other, perfect what has been left unfinished. Suppose the position of these parties reversed, and the appellant was seeking, by bill in chancery, to rescind the mortgage, and for a surrender of the notes. The court would not interfere; it would leave the parties where it found them, aiding neither. We would say, You executed the notes and the mortgage for a fraudulent purpose; the act is binding on you, and you cannot have our aid to compel their surrender. So we say to the appellee here, You have the notes and mortgage; you were a willing party to the proposed fraud; equity aids no iniquity. Had an absolute deed of the premises been made, and the party put in possession, the court would not interfere to oust him." See also Tyler v. Tyler, 126 Ill. 525; 9 Am. St. Rep. 642. In the first two of the three cases last above cited, the fraud was set up by parties not in pari delicto with the parties against whom the fraud was charged. Those cases sustain the rule, however, that a court of law will, in an action of ejectment, on proper proof, hold a conveyance upon which a party relies to establish his title to be fraudulent and void, at least where the fraud is charged by one who is not a party to it. In the case last cited, the court held that it was proper to grant relief at the instance of a participant in the fraud. In the present case, if the facts are as the evidence offered would tend to show, the fraudulent transaction has been consummated to the extent of vesting the title in the plaintiff, and leaving the possession in the defendant. Here, according to the rules of law above discussed, they should be left. The defendant, clearly, can have no remedy to recover the title, and if the plaintiff is permitted in this action to recover the possession, said rules will be applied in all their vigor to the defendant, while the plaintiff will be exempted from their application. His present title, without the possession or the means of obtaining it, is a barren right. But if a court of law can lend him its aid to recover the possession, his title becomes perfect, at least as against the defendant, and the law, notwithstanding his participation in the fraud, will be to him both a sword and a shield. We are not inclined to so apply the law as to involve an absurdity of this character. In Harrison v. Hatcher, 44 Ga. 638, the precise question before us was presented, and we are disposed to concur with the conclusion reached by the court in that case. The action was ejectment, and the plaintiff claimed title under a deed executed to him by the defendant, and the evidence tended to show that said deed was executed by the defendant without consideration and for the purpose of defrauding the grantor's creditors. The defendant asked the court to charge the jury, among other things, in substance, that if said deed was exe cuted by him to defraud his creditors, and that he remained in possession, the transaction was fraudulent, and the defendant could not be ousted of possession, as the court would not aid a party to a fraud to assert rights against the other party, and would not disturb the possession. This charge the court refused to give, and there being a verdict and judgment for the plaintiff, it was held, on appeal, that the refusal of the court to charge as requested was error. The point thus raised is discussed in its opinion, as follows: "On looking into the cases upon this subject, we are satisfied that the rule, In pari delicto, applies to the condition of a defendant in a suit, even though he sets up his own fraud. He is in possession, and the courts will not aid the other party to get possession under a fraudulent deed. They will even permit the defendant to say the deed under which the plaintiff claims is a fraud, — the result of evil practice between him and me; and if this be made out by the proof, the plaintiff cannot recover." It follows that in the present case the evidence offered, so far as it tended to show that the deed under which the plaintiff claims title was executed in fraud of the defendant's creditors, was proper, and should have been admitted, and that its exclusion was error. For said error, the judgment will be reversed, and the cause remanded. EJECTMENT EQUITABLE DEFENSES. An equitable title cannot be set up as a defense in an action of ejectment: Shaw v. Hill, 83 Mich. 322; 21 Am. St. Rep. 607, and note; Gates v. Sutherland, 76 Mich. 231; Johnson v. Pontious, 118 Ind. 270; Geiges v. Greiner, 68 Mich. 153; Williams v. Peters, 72 Md. 584; but in California, Missouri, and Oregon, by statutory provisions, the rule is different: Hyde v. Mangan, 88 Cal. 319; St. Louis v. Schulenburg etc. Co., 98 Mo. 613; Spaur v. McBee, 19 Or. 76. In McGinnis v. Fernandes, 126 Ill. 228, it was decided that a defendant in ejectment, seeking to show that the plaintiff's deed was in fact only a mortgage, must proceed in equity to enjoin the action at law, and show the true character of the deed. Where defendant sets up title in himself under a resulting trust, against the legal title of plaintiff, the action becomes a proceeding in equity: Wylie v. Mansley, 132 Pa. St. 65; Martin v. Fix, 44 Kan. 540. One in possession under an unperformed contract of purchase from the beneficiary in the first deed of trust may defend in an action of ejectment by the beneficiary in the second deed of trust: Collins v. Stocking, 98 Mo. 290. EJECTMENT PROOF OF PLAINTIFF'S TITLE. - Where plaintiff's petition does not set up any particular evidence of title in himself, he may prove his title by any method he chooses, allowed by law: Davidson v. Gifford, 100 N. C. 18. EJECTMENT-PARTIES PLAINTIFF. As to when the trustee is the proper party plaintiff in an action of ejectment, and when the cestui que trust must sue as plaintiff, see note to Doggett v. Hart, 58 Am. Dec. 472–475. PARTIES IN PARI DELICTO - REMEDY. When the parties are in pari delicto, the law will refuse relief to either: Hess v. Culver, 77 Mich. 598; 18 Am. St. Rep. 421, and note; Freeman v. Sedgwick, 6 Gill, 28; 46 Am. Dec. 651, and note; Smith v. Wimsatt, 84 Va. 840; Parrott v. Baker, 82 Ga. 365; Shattuck v. Watson, 53 Ark. 147; Shipley v. Reasoner, 80 Iowa, 548; Duval v. Wellman, 124 N. Y. 156; Walfley v. Shenandoah, 83 Va. 768. ROODHOUSE V. ROODHOUSE. [132 ILLINOIS, 360.] GUARDIAN CANNOT ACT FOR HIS WARD IN PARTITION WHEN. A guardian whose interest is hostile to that of his ward is incompetent to act for his ward in respect to that interest. Where, therefore, a guardian and his ward are tenants in common of land, it is error to decree a partition between them in a suit brought in the names of the guardian and the infant by such guardian. In such a case, the minor should either be made defendant and have a guardian ad litem, or should petition by his next friend or guardian ad litem and be represented by counsel distinct from those representing his guardian. A statute providing that an intant may, by his guardian or next friend, petition for partition of lands means when such guardian or next friend is competent to act in the case. WRIT of error. The opinion states the case. James R. Ward and T. S. Chapman, for the plaintiff in error. Mark Meyerstein, for the defendants in error. SCHOLFIELD, J. This is a writ of error to bring in review a decree of the circuit court of Greene County, assigning dower in and making partition of lands whereof Peter Roodhouse died seised. The bill is filed by Harry W. Roodhouse and Benjamin T. Roodhouse, a minor, by Harry W. Roodhouse, his guardian, and prays the assignment of dower to the widow of Peter Roodhouse, deceased, and that the lands remaining be partitioned between the petitioners, his sole heirs at law. Commissioners were appointed, who assigned dower and made partition as prayed, and they reported their action to the court, and it was confirmed. The only question that we think it necessary to consider is, whether it was error to partition the lands without having the minor represented by a guardian ad litem or a next friend. It is plain that the interests of the ward and the guardian were hostile, since what was given to the one was taken from the other. We have held that it is error to render a decree for partition of the property of a minor, unless he is actually represented in court, either by a guardian, a guardian ad litem, or a next friend: Cost v. Rose, 17 Ill. 276; McDaniel v. Correll, 19 Ill. 226; 68 Am. Dec. 587; Rhoads v. Rhoads, 43 Ill. 239; Hall v. Davis, 44 Ill. 494. Our statute, it is true, provides that an infant may petition, by guardian or next friend, for partition of lands: Rev. Stats. 1874, c. 106, sec. 3; but, upon the clearest principle, this means when such guardian or next friend is competent to act in the case; and a guardian whose interest is hostile to that of his ward is incompetent to act for his ward in respect to that interest: Simpson v. Alexander, 6 Cold. 619; Parker v. Lincoln, 12 Mass. 16; Winston v. McLendon, 43 Miss. 254; Wells v. Smith, 44 Miss. 296. The minor should either have been made defendant and had a guardian ad litem, or have petitioned by his next friend or guardian ad litem and been represented by counsel distinct from those representing his guardian. For the error indicated, the decree is reversed, and the cause remanded for further proceedings. GUARDIAN AND WARD. Where the private interests of guardian and ward are conflicting, a guardian is incapacitated from representing his ward in that business: Paxton v. Gamewell, 82 Va. 706; Hogshead v. State, 120 Ind. 327; nor will a court of equity aid a guardian who allows his claims to come into conflict with those of his ward: Lee v. Stuart, 2 Leigh, 76; 21 Am. Dec. 599. EMMONS V. CITY OF LEWISTOWN. [132 ILLINOIS, 380.] "HAWKERS" AND "PEDDLERS" DEFINED. - A "hawker" is a person who carries about merchandise from place to place for sale, as opposed to one who sells at an established shop. A "peddler " is a person who goes about from house to house selling commodities. BOOK-CANVASSER IS NOT HAWKER OR PEDDLER. A person who canvasses from house to house, taking orders for the future delivery of books and periodicals or other publications, is neither a hawker nor a peddler, within the meaning of the Illinois statute authorizing municipal corpora tions to license, regulate, or prohibit hawkers and peddlers. And therefore a city council has no power to pass an ordinance prohibiting such canvassing within the city without first obtaining a license, or imposing a penalty therefor. THE opinion states the case. H. W. McMasters, for the appellant. |