reepondent against. loss on account of his indorsement of the notes of complainant, do no great violence to its terms; but the master has found, and I think I correctly, under the evidence, that the assignment executed by complainant for the purpose of covering up his Nebraska interests as against the claims of his creditors. This makes it necessary for U$, to consider the question whether complainant is estopped to recover in this case upon the ground that he is relief as against his own fraudulent act. Whe rule is that no affirmative relief will ever be granted upl1na.fraudulent contract to either'ofthe parties thereto. Ifit be true that is asking this court to set aside this assignment,orthat :the assignment is, so clearly identified with the quitclaim deed that they must be regarded as parts of the same transaction, then, in either case, 1 would have no hesitation ;in saying that he is not entitled to rellef. The same result, however, would follow as to respondent. He was a party to both instruments, and was in pari delicto. If they were too,was a Pflrty to the fraud, ,and can claim nothing un<.ler either of them. The court would in that Case refuse relief to either party, and leave them in precisely the position in which they have placed theIrtsel;,res; Telegraph 00. v. Railway Co., 1 McCrary, 418,3 Fed. Rep. i,and(iases cited. " , If, thercfore, the assignment and the deed are to be regarded as parts of the samefirliudillent scheme to defraud the creditors of complainant, it would inevitably follow that both would be treated as absolutely nun and void, and the parties w'Ould be left, as between themselves, without any: right to a decree to enforce or set aside either the one or the other. This llesuJt would be much more injurious to the interests of respond,ent than to those of the complainant, since the latter is in possession; and,jf the two instruments are ignored, he can, as against respondent, hold the undivided half of the land-all that he olaims-underthe provision ofthe will of J'Ohn L. Beadle. But I am ofthe opinion that the evidenc.e does not sustain the position of respondent, that mept a.nd the. quitclaim deed are parts of one and the same transactiou,bothe;xecuted for the eame consideration and for the same purpose. Upon.this,question j as UpOD nearly all the disputed questions of fact in this case; the ,testimony of the.complairiant and respondent is in reet conflict. They are equally interested, and, so far as appears, equally intelligent andcredihle. 1 conclude, therefore, that the matters of fact in controversy,between theml.and concerning which their testimony is iIi conflict; must be determined by a. consideration of the corroborating testimony, and particularly by the acts, declarations, and writings of the parties contemporaneous with the transactions in question. What was ,said and done by the parties in connection with these transactions at the time they were transpiring, and before any ill will had arisen, may be relied upon Me:x.hibiting a reliable indication as to their aims and purposes. For what purpose was the quitclaim deed executed? Complainant ewearsthat it was for the purpose of simplifying the title, and making it DlQJ-eJlatisia.etory to purchasers o(lots, objected to the ,title made
by the executors without an order of court. RespOndent swears that there was no such purpose, but that, on the contrary, the object was to invest him with the fee-simple title, absolutely and unconditionally. This dispute can best be settled by reference to the correspondence between the parties which preceded and led to the execution of'the deed, and this settles it very satisfactorily in favor of cornplainant. I do not find in this correspondence a single allusion to the assignment which has been executed four or five years before, and apphrently ever since entirely ignored. I do find, however, the reason for the execution of the quitclaim deed clearly and repeatedly stated in this correspondence by the respondent himself. In a letter dated December 12, 1869, respondent expresses his surprise that the title was questioned, or that there was anything more to be done, and goes on to propose a plan for arranging the matter and satisfying purchasers. He proposes to pay the legatees, get their receipts in full, and then adds: "1 see no other 'Yay, but you must quitclaim to me your interest in the will. 1 have already assumed all the debts, and that settles up the estate, and leaves the title in me individually. Then, as soon as we can sell enough to pay these debts, we can Rettie, and 1 will deed you your part. All the trouble there is, is in your trusting me until we can do so. We can then do witbout the other executor."
It is impossible to believe that the respondent would have used this . language if the parties had understood that complainant was to execute the deed in consummation of the assignment, and to have no inter.est thereafter. This letter demonstrates that the quitclaim was asked for upon quite another ground, to-wit, that the estate should be closed, the lega<:ies and debts paid, the title vested in one person,who could make deeds, and afterwards a settlement and division could be made as betwem the two brothers to whom the land has been devised. In a later letter on the same .subject respondent writes to complainant: "You can quitclaim your interest in the will. Trust me,. it shall be all right." In still another letter (not dated) respondent writes to complainant: "I will pay the expense, if you quitclaim your interest in the will. It will be easier for me to settle with the surrogate, for then he will not have to lookafter your interest.. That will be between you and me to do." Other letters contain similar language. In no one of them is it intimated that respondent is entitled to the quitclaim as a matter of right, or as the real owner of the property, or because of the assignment of 1865. If the negotiations had been conducted upon the basis of his entire and unconditional ownership, as now claimed by respondent,the correspondence would have given some expression or suggestion of such an understanding or of such a claim. We find nothing of the kind; but. on the contrary I repeated and explicit declarations showing that such was not the intention of the parties. I conclude, therefore, that the quitclaim deed was not executed for the purpose of making effective the previous assignment; that it was the result entirely of negotiations arising subsequently to the assignment, and having no connection therewith; and that, ther<.... . fore, the parties are not estopped by the fraudulent character of the as-
BEADLE tl. BEADLE.
signment to contest In this case the validity or the force and effect of the quitclaim. This brings us to the question whether the said quitclaim deed was in equity an absolute and unconditional conveyance of all the interest of complainant in the land, or a conveyance, as between the parties in trust, made for convenience, and leaving the respondent bound to account for proceeds of sales, and to reconvey upon final settlement any interest of complainant's remaining in theland. This question has been to some extent'anticipated in what has been said. We have seen that the deed was executed for the purpose of facilitating the conveyance of portions of the property to purchasers by vesting the legal title fully in respondent. The quotations already made from the contemporaneous correspondence between the parties show this. This conclusion is confirmed by the acts and declarations of respondent subsequently to the execution of the quitclaim deed. He did not assume to be the owner of the property. He did not claim possession, nor deny the right of the complainant. On the contrary, he went on that the two were still jointly interested. Perhaps the most conclusive proof upon this point will be found in the letter of the respondent which is in evidence, marked "Exhibit R," in which he says: "This satisfaction piece and your quitclaim being recorded, there will be no question in my giving a warranty deed; and, just as soon as we can sell and pay some of the debts resting on me, we can settle and divide, or hold it together; just as we are a mind to. I see nothing to hinder, if you are satisfied to do so."
It is clear that the execution of the quitclaim deed, under the circumstances developed in the proof, did not divest complainant of his interest in the lands devised under the will, but said interest was vested in respondent only in trust, and he was bound in equity to account to complainant therefor. 3. It remains only to consider the effect of the contract, a copy of which is attached to the answer, dated June 20, 1877. By this instrument the respondent agreed to furnish "good and sufficient warranty deeds" for the land in question, when called upon by complainant to do so, as he should sell or dispose of lands. Complainant was to pay respondent $11,000 for his interest, the whole amount to be paid within five years; and to pay at least $600 per annum, together with all money or securities received for the sale of said real estate. Whenever $2,000 was paid, the complainant was to have a deed for the house and block upon which he resided. By reference to the pleadings, it will be seen that neither party is seeking in this sult to enforce this contract. It seems to be assumed that it has been abandoned and rescinded by the parties to it. It seems pretty clear that it was repudiated by the respondent as early as the 15th of March, 1878; for on that day he wrote to complainant that he was resolved to sell the land and the buildings, and would want possession when he made a deed. The time for carrying out the contract had not expired, and this notice could have been given only Upon the theory of. an abandonment .of the. contract. .It is, however, .