Pennock v. Freeman, 1 Watts, 409; Henderson v. Hays, 2 Watts, 148; Orne v. Coal Co., 114 Pa. 172, 6 Atl. 358; Datz v. Phillips, 26 Wkly. Notes Cas. 512; Brown v. Pitcairn, 148 Pa. 387, 24 Atl. 52, 33 Am. St. Rep. 834. From the lips of this complainant, who sues for grace, along with his prayer for a decree that the defendant specifically perform his agreement, there comes a confession that its purpose was to deceive, and the ear of the chancellor will not hear the prayer. Into hands soiled by a contract, equity will not place her decree for its enforcement. "The doors are shut against one who, in his prior conduct in the very subject-matter at issue, has violated good conscience, good faith, or fair dealing." Orne v. Coal Co., supra. “If a contract has been entered into through fraud, or to accomplish any fraudulent purpose, a court of equity will not, at the suit of one of the fraudulent parties,-a particeps doli,-while the agreement is still executory, either compel its execution or decree its cancellation, nor, after it has been executed, set it aside, and thus restore the plaintiff to the interests which he has fraudulently transferred. Equity will leave such parties in exactly the same position in which they have placed themselves, refusing all affirmative aid to either of the fraudulent participants. The only equitable remedies which they can obtain are purely defensive. Upon the same principle, whenever one party, in pursuance of a prior arrangement, has fraudulently obtained property for the benefit of another, equity will not aid the fraudulent beneficiary by compelling a conveyance or transfer to him; and, generally, where two or more have entered into a fraudulent scheme for the purpose of obtaining property in which all are to share, and the scheme has been carried out, so that all the results of the fraud are in the hands of one of the parties, a court of equity will not interfere on behalf of the others to aid them in obtaining their share, but will leave the parties in the position where they have placed themselves." 1 Pom. Eq. Jur. § 401. "While a court of equity may act upon the conscience of a defendant, and force him to do right and justice, it will never thus interfere on behalf of a plaintiff whose own conduct in connection with the same matter or transaction had been unconscientious or unjust, or marked by a want of good faith, or had violated any of the principles of equity and righteous dealing, which it is the purpose of the jurisdiction to sustain. It endeavors to promote and enforce justice, good faith, uprightness, fairness, and conscientiousness on the part of these who occupy a defensive position in judicial controversies; but it no less stringently demands the same from the litigant parties who come before it as plaintiffs or actors in such controversy. This fundamental principle is expressed in the maxim, 'He who comes into a court of equity must come with clean hands.'" Id. §§ 389, 399.

It is not pretended that in the agreement of June 3, 1899, Reynolds and Boland tried to take advantage of each other, or that either was attempting any fraud upon the other. Its sole purpose was the deception of Stetler, to enable Reynolds to accomplish through it what was apparently impossible without it. But this does not relieve it from its baseness, and in it there is no equity for the plaintiff. As early as April 4, 1899, he and W. P. Boland, by the express terms of the settlement of the action of ejectment which they had brought against Stetler, agreed to assign all the stock held by them in the People's Coal Company to S. N. Stetler, or to any person or persons or company to whom he might direct the assignments to be made. At that time Stetler believed, as he had reason, that Reynolds was out of the enterprise; and he then went on with it, retaining the co-operation of W. P. Boland, who, in the distribution of the capital stock of the company, received 310 shares. His confidence in Boland was misplaced, for all the time the latter was in sympathy with Reynolds; and on June 3, 1899, in violation of the good faith which he owed to Stetler, and which Reynolds knew he was violating, a contract was entered into, by the terms of which, if specifically enforced, Reynolds can thrust himself into business companionship with Stetler, and by subterfuge and a trick accomplish what would have been impossible in open and fair dealing. Though the People's Coal Company would not have been organized and successfully managed if Reynolds had not agreed to withdraw from it by assigning whatever interest he had in it to Stetler, or to any one whom the latter might name, in violation of his agreement of April 4th he made another, by the terms of which he seeks to impose upon Stetler, and through it to accomplish his personal ends. Stetler is to be wronged. The compact of June 3, 1899, was for that purpose. It is still executory, and equity frowns at the mere suggestion of its enforcement. Both parties to it are parties to its iniquity, and neither has any equity against the other. "Who comes into equity must come with clean hands.' 'In pari delicto, melior est conditio defendentis.' These are the principles which stand in the plaintiff's way.

shall not have equity.

Who does iniquity Equity has no relief for a party who, in the practice of one fraud, has become the victim of another." Hershey v. Weiting, 50 Pa. 240.

Whatever rights at law Reynolds may have under the agreement of June 3, 1899, we do not pass upon. We simply decide that the relief which he craves in equity must be denied him. The question now is not what Boland ought to pay him on the agreement of June 3, 1899, as an executed contract between them, but whether, as an executory one, its terms can be enforced specifically, with the effect of consummating the deception intended by it when entered into, and

of perpetrating by fraud the imposition upɔn Stetler.

No other view could have been entertained by the court below than that the bill must be dismissed, and the decree dismissing it is now affirmed at appellant's costs, without prejudice to any rights he may have at law.

PERSHING v. FEINBERG. (Supreme Court of Pennsylvania. May 19, 1902.)

LEASES-FORFEITURE-DEFAULT IN PAYMENT

-TENDER-SUFFICIENCY.

1. Forfeiture of lease, because rent was not paid in time, will not be sustained where there was a timely tender of payment by check, and checks had before been tendered for rent, and, while refused, had not been refused because the tender was illegal, but for other reasons stated.

2. By return, without comment, of a check tendered a lessor by a lessee in full for rent, but which was not for the amount due, the lessee having, without authority, attempted to collect a claim for expenses of a suit against him by the landlord by making deduction from the rent, the lessee has notice that his claim is not allowed; and, having persisted in tender of such amount, he will not be relieved from forfeiture of the lease for default in payment.

Appeal from court of common pleas, Fayette county.

Asenath H. Pershing, now for use of Morris Kobacher and another, entered judgment in ejectment against Hazel Feinberg under a provision in a lease. From an order discharging a rule to open judgment, defendant appeals. Affirmed.

Greenwald, Mayer & Campbell, for appellant. Robinson & McKean and R. F. Hopwood, for appellee.

FELL, J. The lease under which the defendant went into possession provided for the -entering of a judgment in ejectment if the rent reserved was not paid as it became due. Three monthly installments of rent were unpaid when judgment was entered, and on the hearing of the rule to open the judgment the only question before the court was whether the defendant had established any equitable ground for relief against the forfeiture. Five months before the judgment was entered, the plaintiff had instituted proceedings to recover possession of the premises for breach of a condition as to subletting, but had failed in her action. Before the proceedings were ended, the defendant sent checks for two installments of rent which became due. These checks were returned with a statement that no rent would be received, because of the litigation then pending. Three months' rent became due after the proceedings ended. From this amount the defendant deducted $24.50 for personal expenses incurred by him in attending to the litigation mentioned, and sent the plaintiff a check for the balance, with a statement that it was "in full for three

months' rent." The check was returned without comment. The same amount in money was afterwards sent by express, and it also was returned.

Under the circumstances, a forfeiture would not be sustained because payment was tendered by check. Checks had been tendered on two prior occasions for monthly installments, and had been refused, not because the tender was illegal, but for other reasons then stated. If money was demanded, the defendant was entitled to notice. Courts will relieve against forfeiture when the injured party has been misled, or an undue advantage has been taken of his reliance on a waiver of strict performance. But as to the amount to be paid, and the duty to pay it, the defendant was not misled. His relation to the plaintiff was hostile, and he had no reason to expect indulgence. The return of the check was notice that his claim for expenses was not allowed. His attempt to collect the claim by deducting it from the rent was unwarranted, and by his persistence in it he placed himself in a position in which the court could give him no relief.

The order discharging the rule is affirmed.

BARBER ASPHALT PAVING CO. v. CITY OF ERIE.

(Supreme Court of Pennsylvania. May 19, 1902.)

CONTRACTUAL LIMITATIONS.

Where a company paves a street under contract with a city, and the city then levies an assessment against a school district having property abutting thereon, and assigns the assessment, pursuant to the contract, to the company, but the assessment is void, because a school district is not liable thereto, action by the company against the city on account thereof is subject to the provision of the contract that action against the city in any way arising from the contract shall be commenced within one year of accrual of cause of action.

Appeal from court of common pleas, Erie county.

Action by the Barber Asphalt Paving Company against the city of Erie. Judgment for defendant. Plaintiff appeals. Affirmed.

The following is the charge to the jury: "In the year 1887, the city of Erie entered into two contracts with the Barber Asphalt Paving Company; one for the construction of a pavement on Sassafras street, from Eighth street to Eighteenth street, and another for the construction of a pavement on Eleventh street, from Peach street westerly to 120 feet west of Sassafras street. The evidence tends to show that the Barber Asphalt Company proceeded to construct those pavements pursuant to these contracts. In doing so, they constructed pavements in front of certain property owned and in use by the school district of the city of Erie for school purposes. It is well-settled law in this commonwealth that a school district is not liable to a paving assessment, or to pay for a

pavement. It is public property, of such a nature that it cannot be assessed with a tax for a street improvement; but when these pavements were completed, the city did proceed to levy an assessment against the school district, and these assessments were in compliance with the terms of the contract assigned to the Barber Asphalt Company, who endeavored, unsuccessfully, to collect the assessments from the school district. The evidence is not definite as to the precise date when this assignment of these assessments was made by the city to the Barber Asphalt Company, but the assessments were made early in the summer of 1887, and were in the possession of the Barber Asphalt Paving Company in September, 1887. At that time the said company presented these assessments to the school board for payment, according to the evidence. Failing to collect from the school board, the Barber Asphalt Company brings this suit against the city, to collect from the city the amount of these assessments against the school district. There is a provision in each of these contracts which reads as follows: 'It is furthermore hereby expressly provided and mutually agreed that no suit or action against the elty of Erie for the recovery of any claim or damage by virtue of this contract, or in any way arising therefrom, shall be sustainable in any court, or before the city engineer, as above provided, unless such suit or action shall be commenced within twelve months next ensuing after such cause of action accrued. And should any suit or action be commenced in any court, or before the engineer, against the city of Erie, after the expiration of said twelve months, the lapse of time shall be deemed conclusive evidence against the validity of such claim or demand, any statute of limitations to the contrary notwithstanding.' According to that clause in the contract, the Barber Asphalt Paving Company, in order to hold the city liable, must bring its action against the city within twelve months after the right of action accrued. The courts have sustained such clauses, calling them contractual limitations. Parties may, at their option, agree upon a shorter time than six years, and here they did agree that the suit must be brought within twelve months after the cause of action accrued. The only question is, when did the cause of action accrue? It seems to me that the cause of action accrued at the time the city transferred these invalid assessments to the Barber Asphalt Paving Company, in 1887. That being so, and this suit not having been brought until 1892, in my opinion the plaintiff is barred from recovery against the city, under the express terms of this clause I have read to you. The cause of action either accrued at the time the invalid assessments were transferred to the plaintiff (the Barber Asphalt Paving Company), or else, it would seem to me, it did not accrue until the final termination of that suit that the Bar

ber Asphalt Paving Company brought against the school district. That suit was not brought until 1892, and was not determined in this county until 1897,-or these two suits, one for each pavement. If that be correct, then the plaintiff is not entitled to recover, because this suit was brought in 1892, five years before the termination of the other,the termination of the action against the school district. So, in either event, the plaintiff is not entitled to recover. Either the right of action accrued (as I believe it did) at the time the invalid assessments were transferred to the Barber Asphalt Paving Company, or it did not accrue until the final termination of their litigation against the school district, and that was not until five years after this suit was brought. So, either the plaintiff's right of action was barred several years before this suit was brought, or else it did not accrue until several years after the suit was brought. And in either event the plaintiff is not entitled to recover, for which reason the motion for a compulsory nonsuit is granted. The court, in this case, assumes the entire responsibility. If we are wrong, it can be corrected, either in this court or in the supreme court."

Charles P. Hewes, for appellant. William G. Crosby, City Sol., for appellee.

PER CURIAM. It was competent for the parties to the contract to limit the time within which actions based on it might be brought. The judgment is affirmed for the reasons stated in the charge.

SCHOOL DIST. OF CITY OF ERIE ▼. GRIFFITH.

(Supreme Court of Pennsylvania. May 19, 1902.)

TRUSTEE-LIABILITY-INTEREST.

1. The directors of plaintiff school district having passed a resolution that, if defendant should become purchaser at sale of lands for school taxes, he would be deemed a trustee of the district in respect of the lands for such unpaid taxes, such trust to be discharged on each piece on payment by defendant of the amount of school tax for which it was held, and defendant having accepted and acted on the resolution, he is liable to the district for the school taxes on a lot which he buys for such taxes and then conveys without the tax being paid.

2. Defendant, who bought lands at sales thereof for school taxes, and became trustee for the school district as to the lands for such unpaid taxes, having, after his purchase, received the taxes, and used the money, is liable to the district for interest thereon, though the school district had not, as provided in the agreement for trusteeship, receipted to the county treasurer for the school taxes on the lands so bought, he not having objected on this ground to making payment.

Appeal from court of common pleas, Erie county.

Suit by the school district of the city of Erie against Ella R. Griffith, administratrix"

of George P. Griffith, deceased, for discovery and account. Decree for plaintiff. Defendant appeals. Affirmed.

The opinion of the court below is as follows:

"The defendant was for many years the solicitor of the plaintiff school board, and by virtue of resolution of the board he purchased a large number of tracts of land at tax sales from the year 1880 to the year 1888, inclusive, which he held as trustee for the plaintiff; at least as trustee so far as any school taxes that he might collect thereon. This bill was brought to compel him to account for moneys so collected by him, and for settlement, etc. The facts are found as follows: (1) That the plaintiff is the legally constituted school board of the city of Erie. (2) That the defendant, George P. Griffith, is, and has been for many years, a member of the Erie county bar, and from the year 1880 to the year 1889, inclusive, he was the solicitor for the plaintiff school district. (3) That on the 5th day of August, 1880, the board of directors of said school district adopted the following resolution: 'Resolved, that in case George P. Griffith shall become the purchaser at the treasurer's sale of land for taxes of any lands in the city of Erie which have been returned for nonpayment of school taxes, said George P. Griffith shall be deemed a trustee for said school district in respect to such lands only to the amount of the unpaid school taxes thereon, and the treasurer is directed to receipt to the county treasurer for the school tax on any lands so purchased, and said George P. Griffith shall hold each piece so purchased in trust for the collection of the amount of school tax only on each such piece, such trust to be discharged upon each said piece upon payment by said Griffith of the amount of school tax for which such piece may have been held; and said George P. Griffith shall have no right to incumber or convey any such lands until he shall have paid to the school district the amount of school tax for which any such piece of land may have been sold. Adopted.' And that the defendant accepted and acted upon said resolution, and pursuant thereto became the purchaser of a large number of pieces of land in the city of Erie, sold at treasurer's sale for school taxes. That Schedule A attached to plaintiff's bill is a substantially correct list of the pieces of property purchased by the said defendant pursuant to said resolution, which list gives the names of the owners, a brief description showing the ward in which the property is located, the date of sale to defendant, the amount of school taxes, and the year for which said taxes were assessed; said sales having been so made to defendant on divers times beginning November 12, 1880, and ending September 17, 1888. (5) That defendant began to collect money belonging to said school district on account of the said land so purchased by him within a few weeks after

(4)

November 12, 1880, and continued from time to time to collect moneys thereon down until the time the testimony was taken in this case in February, 1899. (6) That the moneys so collected by the defendant and belonging to the plaintiff school district, of which the defendant was the trustee, were mixed by the defendant with his own private funds, and used by him for his own private purposes, and in no case did he keep any separate account of such trust funds, but mingled the same with his own, and treated such trust moneys as his individual property; and that he continued to so collect and use said moneys without rendering any account thereof for over eleven years, at which time he had collected and used over three thousand dollars of the money of the said school district. That the first payment made by the defendant on account of such moneys was made February 11, 1892, at which time the defendant paid the treasurer of the school district $901.86, and failed to pay over or account for the additional sum of $2,310.31, which he had theretofore collected, and he still retained said last-named amount, together with moneys thereafter collected by him until after the filing of the bill in this case in 1896, subsequent to which he made the following payments to the said treasurer on account of said moneys: April 5, 1897, $659.98; June 15, 1897, $1,449.84; July 29, 1897, $115.70; September 1, 1897, $32; April 29, 1898, $4.28; May 21, 1898, $255.44,—making a total amount paid by defendant on account of said trust moneys of $3,419.10. (7) That the said defendant has never paid the plaintiff any interest on any of the moneys so retained and used by him, although he retained and used a large portion of said funds for many years, some as long as seventeen years. (8) That the said payments included the principal of all the moneys so collected by the defendant and belonging to the school district, except certain property assessed in reserve tracts Nos. 36 and 37, which will be hereafter considered, and excepting the sum of $25.84, which the defendant still has in his possession, and which latter sum the defendant has offered to pay to the school district, the same being money collected by defendant shortly before the hearing of this case. (9) That the defendant received for his services, and was to receive for his services, all penalties which he collected on account of such tax sales. This fact was so stated and agreed upon at the trial, although I do not notice any statement as to the same in the stenographer's notes. (10) That of the lands so purchased by the defendant there were certain lands described as being in reserve tracts Nos. 36 and 37, and assessed as follows: * *. That on the 6th day of July, 1896, the said defendant gave a quitclaim deed to T. M. Nagle for certain land.

That such deed included land formerly owned by the above-stated parties, and intended to be conveyed to the said defend

ant by the tax sales above referred to, although the assessment and tax deeds made for the same were uncertain as to exact location, on account of which uncertainty it would have been very difficult to have recovered such lands by an action of ejectment founded upon such tax titles. At the time of making the deed to T. M. Nagle the defendant received as a consideration therefor the sum of $90, which was not nearly enough to pay all of the taxes standing against said land. (11) That the payments so made by the defendant to the said school district included some items of school taxes which the said defendant had never actually collected, but which he paid because he had deeded away the said lands, or portions thereof, to certain parties, without having actually received the taxes; and in some instances the defendant still retains the title to portions of such pieces of land so purchased by him at tax sale (12) That the defendant is a resident of the city of Erie, but has an office in the city of New York, and his business calls him away from home a large portion of the time. (13) That in making payments to the treasurer the defendant furnished the treasurer with a list of the pieces of land on which he paid the taxes at these various payments, but at the time of the first payLent of the said $901.86 the school treasurer did not receive or retain such schedule, but afterwards it was handed to him by the defendant. (14) That the treasurer of said school district never receipted to the county treasurer for the school taxes on the lands so purchased at tax sale by the defendant. (15) That, beginning about 1892, the school district, through its proper officers, made various unsuccessful efforts to obtain a settlement with the defendant as to the matters ir. controversy in this case, at which time the defendant asserted that he had paid over to the school treasurer all the moneys collected by him on account of said tax sales, and practically so stated in his answer first filed to the bili in above case. That when the defendant was so requested by the officers of the school district to settle up his accounts and pay over the balance in his hands he did not refuse to do so by reason of the treasurer not having receipted up his bids to the county treasurer, and made no objection by reason thereof, and, so far as appears, never called upon the school board to cause such receipting of his bids at the office of the county treasurer, although beginning with about 1892 the defendant did at different times request Mr. George P. Colt, the treasurer of the school district, to receipt to the county treasurer for the school tax on the lands so purchased by the defendant in accordance with the provislons contained in the above quoted resolution. (16) That Schedule B, to be hereto attached and made a part hereof, contains a statement of the accounts of the said defendant with said school district on account of said trust, including the times when the va

rious moneys were collected by the defendant, the length of time the same were retained by him, and the interest on the vari ous sums from the 1st of June subsequent to the date of such collection down to the time that the defendant actually paid the money over to the said school district, and the balance in his hands, etc. That, in addition to the foregoing finding of facts, the following requests for finding of facts, submitted on behalf of the plaintiff, are affirmed, to wit, the 5th, 6th, 7th. 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th; plaintiff's other requests having been sufficiently answered in the foregoing findings of fact. I decline to find the defendant's first request for finding of facts, but that question has been fully covered by the foregoing findings.

"Legal conclusions: (1) That under the above-quoted resolution, and the acceptance thereof by the defendant, he became the trustee of the plaintiff for all school taxes and moneys received on account of the same by reason of the lands so purchased by the defendant at treasurer's sales. (2) That the moneys so collected by the defendant were legally the moneys of the school district, and it was the duty of the defendant to have promptly paid the same over to the school district, and that at least as often as once a year the defendant should have paid over such moneys to the plaintiff, and that the proper time for such payment would have been the end of the school year, to wit, on the 1st day of June of each year. (3) That the defendant, having mingled said trust funds with his own money, and having used the same for his own private benefit, is liable to the plaintiff for the interest thereof from the end of each school year down to the time that the money was actually paid over to the school district. (4) That the defendant, by making the various payments, and also by denying that he had the various sums of money in his hands, has waived the right which he possibly might have had of insisting upon the school treasurer receipting up his bids to the county treasurer, and that the failure of the school treasurer to so receipt up the bids could not, in any event, relieve the defendant from his liability to pay interest on such trust funds, for the reason that he actually mixed the trust moneys with his own and used the same for his own benefit. (5) That, the defendant having offered to pay the plaintiff the $25.84 above referred to, he should not be charged with any interest thereon. (6) That by the terms of the above resolution the defendant, by conveying the whole, or even a part, of any piece of land so purchased by him at tax sale, became liable to pay the amount of taxes thereon to the school district, whether or not he had in fact actually received the amount of such taxes. (7) That a decree should be made against the defendant, directing him to pay to the plaintiff the balance in his hands according to Schedule B, hereto attached, and also that he