Rogers et al. v. Tucker et al.

for relief as against Hope Tucker, if still living, much less do they constitute a case for relief against Orange Tucker, who is now seized of the lands, under an arrangement honestly entered into, and, with fidelity, and nearly twenty year's service on his part, executed; and that, as admitted by the bill, without any knowledge or notice of the rights of complainants in the premises. Under these circumstances, having executed the contract on his part, by staying upon the farm and conducting it, and affording a support to his parents, the agreed consideration for which Hope Tucker promised to convey him the title to the land, although that conveyance has been made by will instead of deed, in equity Orange should be regarded as a purchaser without notice, and for a valuable consideration. Having then not only and equal equitable claim to the lands, but also the legal estate, Orange's claim to the lands can not be superseded by that of complainants.

It is true, the complainants aver that they were not made parties 428] in the judicial proceedings under which the lands were adjudged and conveyed to Hope Tucker, in 1833. The record, however, shows the contrary. A notice was published in a newspaper of general circulation in the county, as provided in the third section of the "act to provide for the partition of real estate," in force March 3, 1831. This was a good notice, and all persons in interest so notified, thereby became parties, and bound by the subsequent proceedings in the cause. Hence it becomes unnecessary to determine what estate was in fact conveyed by the deed of Lockwood; for, whether the words heirs and children, in that deed, be regarded as words of purchase or limitation, the operation of the judgment and sheriff's deed of 1833, and the proceedings in partition, would, in either case, pass the legal title to Hope Tucker.

And in regard to the equitable title of the complainants to the land, we can not perceive how, even as against Hope Tucker, in his lifetime, such an equity is shown from the averment that Hope did not pay the appraised value of the land.

In the first place, the record in the partition proceedings shows that Hope claimed to be the proprietor of all the remaining interest, beyond what was held by Nowlen and his co-petitioners, and for which they were paid. If this were so, and we think the court and sheriff so considered it, Hope was not bound to make any further payment to the sheriff than what was paid in satisfaction of the adverse claimants.

Rogers et al. v. Tucker et al.

Again, if the complainants were permitted to overthrow the legal title of Hope Tucker so acquired, by showing in themselves a perfect equitable title, have they in fact shown such superior equitable title? The evidence is satisfactory to show that the five hundred dollars paid for the lands by the executor of Clark Tucker was paid at the instance of Hope; that the money was in fact the proceeds of his own property, of which Clark had lived in possession, and by will had attempted to restore to the family of Hope, instead of restoring it to him in accordance with Hope's frequent request.

Hope directed the money to be paid for the purchase of the farm, and did not direct, nor is there any proof that he knew, *the form of the deed, down to the time of the partition [429 proceedings, or during his life. He had, ever since the purchase of the land, lived upon it, and continued to regard it as his own; and had, at that time, according to its appraised value, put improvements upon the land worth more than $1,800, and of nearly five times the value of the land.

Under such circumstances-having under judicial proceedings acquired the legal title to the lands, so strongly fortified by equity -we can not perceive from the proof in this case such an equity on the part of the complainants as would have been sufficient to supersede the legal title, while held by Hope Tucker. Much less, as already remarked, do the complainants show any equitable title sufficient to supersede the legal and equitable title of Orange Tucker to the lands in question.

The bill must therefore stand dismissed with costs.

BARTLEY, C. J., and SWAN, and SCOTT, JJ., concurred.

BRINKERHOFF, J. I concur in the decree dismissing the bill. And though I am not prepared to say that I dissent from the view of the case taken by the majority of the court, yet I would prefer that the case should be disposed of on the grounds which I will briefly state:

In the statement of the case, as given by brother Sutliff, it will be seen that the bill seeks to enforce an alleged trust estate, in the one hundred acres of land described, in favor of the complainants; and this trust is claimed to result from the alleged fact that the land was purchased and paid for with money belonging to the estate of Clark Tucker, and bequeathed by him to the complainants.

Rogers et al. v. Tucker et al.

Now, if the money with which the land was bought was not the money of Clark Tucker, then there is no trust in favor of complainants in the land. This is clear. The question, then, whose was the money with which this land was bought? lies at the foundation of this case. Was it the money of Clark Tucker or of his estate? If it was not, then there can be no pretense of a trust, and the bill must be dismissed.

430] *In considering the case it is important to bear in mind that the complainants are not in a court of law, asserting legal rights, but have appealed to a court of equity, claiming to establish and enforce equities. Their claims, then, are to be viewed and adjudged in the light of the principles of equity; and these principles must be applied to the preliminary question: whose money paid for the land? as well as to every other question which can arise in the case.

In equity, then, whose was the money which paid for the land? We are agreed that the evidence satisfactorily shows that the land was bought and paid for with money in the hands of Clark Tucker at the time of his death, and which, without consideration, had been received by him from his brother, Hope Tucker, and held in secret and fraudulent trust for the sole purpose, mutually understood between them, of defrauding the creditors of Hope, and to be ultimately returned to Hope.

Now, on familiar elementary principles, no court of equity would have enforced this fraudulent trust in favor of Hope, as against Clark Tucker-not because Hope had no equity against Clark-not because Clark was entitled in equity and good conscience to keep the money as his own-not because it was in equity his-for the contrary of all this was true-but, because ex turpi causa non oritur actio-because the transaction out of which the trust arose being contrary to good morals, it would be inconsistent with public policy and with the dignity of a court to befoul its hands with the case by any affirmative action in favor of either of the guilty parties; but the court would leave them and their affairs where their own acts or accidental events had placed them. See the remarks of Lord Mansfield in Holman v. Johnson, Cowp. 341, quoted in Broom's Legal Maxims, 578, 579. On the other hand, had Hope Tucker merely agreed to transfer his property to his brother Clark for the purpose of defrauding his creditors, with a secret trust that it should be returned to him when danger from his creditors had

Rogers et al. v. Tucker et al.

blown over, and had this contract remained unexecuted, a court of equity would refuse to enforce it, not only for the reasons before mentioned, but for the additional reason that such a contract, whether executed or unexecuted, could never confer on Clark [431 any equity whatsoever as against Hope Tucker. As against him his claim or title would always be against reason and conscience.

As between the parties to such illegal transactions and those who claim under them, we, as a court of equity, can not interfere, from regard to what is due to our own character and to the morals and policy of the law; we are compelled to inertia; but our being necessarily inert, it seems to me, constitutes no good reason why we should be voluntarily blind. We are at liberty to see, if not to do; and it requires us but to open our eyes to see that, in equity and good conscience, and as against Hope Tucker, or those who claim under him, Clark Tucker never owned this money. His money never paid for the land in controversy. Of course, then, the foundation fact on which the trust is claimed to arise, is not proved; and, by dismissing the complainants' bill, we leave the parties where we find them; and this without having anything to do with the illegal transactions of the personages respectively under whom they claim, except to look at and inspect them so far as to ascertain their true character.

It is true, I know no case quite analogous to this in its facts and circumstances, but it comes so clearly, as it seems to me, within the scope of familiar, well settled, and just principles, that I can see no reason why they should not, without hesitation, be applied. And I should prefer to dispose of the case on these principles, as we thereby go to the bottom of the transaction, leave the parties to their strict legal rights, and, by precluding the idea that any equities can exist in favor of those who claim under Clark Tucker as against those who claim under Hope, either in the land or in the fund with which it was purchased, cut off the possibility of future litigation on the ground of supposed equities.

389

Needles' Ex'r v. Needles and others.

432] *JAMES NEEDLES, EXECUTOR OF PHILEMON NEEDLES, DECEASED, v. THOMAS NEEDLES AND OTHERS.

The statutory provision as to advancements in the descent and distribution of estates can have no just application in a case where it is apparent that the testator, who, by his will, had distributed property in different amounts among his children, with the manifest intention of disposing of all his estate, unexpectedly, by the omission of a residuary clause in his will, died intestate as to the residuum of his estate.

There is but one mode known to our law by which a married woman is authorized to join her husband in the execution of a contract that has reference to real estate, and that is under the formalities and guards against marital influence prescribed by statute. How far the consent of the wife, or her joining her husband, in an arrangement in regard to her separate property, may be regarded as a material element in the transaction, in equity, is a different question.

The wife's contingent right by survivorship to her choses in action immediately reducible into possession, may be barred by settlement before or after marriage, by actual reduction into possession by the husband, or certain acts held to be equivalent to actual reduction into possession, such as recovery of judgment or decree in the sole name of the husband, the taking of a note or obligation for the debt in the sole name of the husband, by assignment by the husband for a valuable consideration, or by release. The husband's right of property in the wife's choses in action, is dependent on the contingency of his reducing them into possession during coverture, and although an assignment for a valuable consideration, by the husband, of the wife's chose in action capable of immediate reduction into possession, is regarded as a substantial reduction into possession by him; yet the assignment or transfer of the wife's reversionary interest, or interest in expectancy, does not amount to a reduction into possession by the husband, inasmuch as such interest in futuro is incapable of immediate reduction into possession, and the effect of the assignment is simply to place the assignee in the same situation with, and no better than that of, the assignor. The effect of the law on this subject is that the wife's dominion or power of disposal, which the husband, by virtue of the marital relation, assumes over the wife's choses in action, consists not in his succession to the wife's right of property, but the power of control and management of her choses in action for her benefit, together with the power of acquiring an absolute right of property in the same, so far as they are capable of actual reduction into possession.

Although, as a general thing, all contingent and executory interests, and contingent estates of inheritance, as well as springing and executory uses, and possibilities coupled with an interest, are assignable and releasable, yet it is a settled rule that what is termed either a naked possibility, or a remote