¶1I concur in the order reversing the judgment. I am of the opinion, however, that the trial court should be directed to dismiss the action, and hence I dissent from the order directing the lower court to permit the parties to recast their pleadings and to permit plaintiff to substitute for this action another and different kind of action.
¶2The purport of the prevailing opinion, if I correctly" understand it, and the order directing the lower court to permit the pleadings to be amended, is to permit the plaintiff to convert this case, which is a law action, ‘into an equitable action. In other words, this court in effect says to the plaintiff (whose course of conduct, and that of his coadjutors through whom he claims to deraign title to the property in question in their effort to acquire the legal title to, get possession of, and permanently dispossess and deprive Mrs. Atkinson of her home, is more in harmony with that of the buccaneers and freebooters of the middle ages than it is with modern equitable principles and rules of procedure). “You have been unable in a legal action to deprive this woman, who is worse than widowed, of her home because of certain statutory impediments. Amend your complaint and convert the action into an equitable one, and the courts may, by the application of equitable rules, legalize the illegal methods by which you acquired your claim of title. ’’ This ought not to be. The record in this case shows conclusively that Mrs. Atkinson is the only person connected with, or interested in, this- litigation who has come into court *446with “clean hands,” and she is the only party who, while demanding equity, is offering “to do equity.” Equity, according to my understanding of the doctrine, enables courts to do justice in eases where a party is entitled to relief and the application of the strict rules of law is inadequate. In all cases, however, he “who comes into a court of equity must come with clean hands”; and in no case can equity be properly invoked to enforce a claim that has its inception in fraud or wrongdoing. The record in this ease, as I shall point out, shows a state of facts that make it impossible for plaintiff to show “clean hands.” His own testimony and admissions, considered in connection with other facts and circumstances in evidence, clearly show that he is not entitled to the relief he is seeking.
¶3To correctly reflect and fully illustrate the equities of this case it will be necessary to review, somewhat in detail, certain facts and circumstances long antedating the particular transactions upon which plaintiff relies to support the judgment of the trial court, which is in his favor.
¶4The record shows that on March 25, 1881, Mary Atkinson and William J. Atkinson intermarried in Partick, by Glasgow, Scotland. Some time prior to 1907 they came to this country, and located at Bridgeport, Conn., where Mrs. Atkinson for a considerable length of time worked in a silk factory. She also worked in a silk factory in Paterson, N. J. During the time she worked in' these places she saved and deposited in a bank over $1,600. She testified that she turned that money over to her husband, William J. Atkinson, with the understanding that he would come to Utah and purchase a home, and that in pursuance of this arrangement Atkinson came to this city and purchased the property involved in this action. Soon after Atkinson came to. this state his wife went to Seattle, Wash., and from there she returned to Bridgeport, Conn. In the meantime Mrs. Atkinson wrote to her husband and he was otherwise advised of her whereabouts. On the 14th day of August, 1909, William J. Atkinson commenced an action in the district court of Salt Lake County against his wife for a divorce. The purported service of summons was had by publication. Atkinson in his affidavit for *447publication of summons made oath, ‘.‘that the last-known address of defendant was Cleveland, Ohio.” The record-shows that this part of the affidavit was false, and that Atkinson at the time he subscribed to it knew it to be false. On October 22, 1909, judgment by default was entered, whereby Atkinson was granted an interlocutory decree of divorce, which decree was made final on April 23, 1910. On or about September, 1911, Mrs. Atkinson came to Salt Lake City; and not having been advised of the divorce proceedings, and believing that she was still the wife of William J. Atkinson, went to their home, the property in question, where she and Atkinson lived together as husband and wife until some time in November, 1911, when she, for the first time, learned that Atkinson had obtained a divorce. On learning of the divorce, Mrs. Atldnson ceased living with Atkinson and temporarily left the home and lived elsewhere. On November 25, 1911, she commenced an action in the district court of Salt Lake County to set aside the decree of divorce on the ground that it was obtained by fraud. Atkinson answered.- A trial was had. The record in that case, which was admitted without objection in this case, shows conclusively that certain charges of a criminal character made by Atkinson against his wife in his complaint for a divorce were nQt only groundless, but were wickedly false. On June 26, 1912, the court made a formal order setting aside and vacating the decree of divorce, and on July 10, 1912, findings of fact were made and filed and a decree entered thereon. The cause was appealed to, and the judgment affirmed by, this court. Atkinson v. Akidnson, 43 Utah, 53, 134 Pac. 595, 47 L. R. A. (N. S.) 499. Immediately after the opinion of this court was filed (July 8, 1913), Mrs. Atldnson took actual possession of the property and has since' occupied it as her home. The .record shows that it is the only home she has. Three days after the decree was made vacating and setting aside the decree of divorce (June 29, 1912) Atkinson made and executed a mortgage, covering the property in question, to his attorney C. S. Patterson for $500. .Patterson was Atkinson’s attorney in the divorce suit and also represented him in the s,uit brought to set aside the decree of divorce. On the day the mortgage was given Atkin*448son made and executed a deed to the premises to Stewart McLeese. The deed was drawn by Patterson, the mortgagee, and was acknowledged before him as notary public. Patterson assigned the mortgage to Mrs. Y. D. Patterson, his wife. On July 8, 1913, Patterson, acting as attorney for his wife, commenced an action against W. J. Atkinson to foreclose the mortgage. Stewart McLeese and his wife were made defendants in the action. Mrs. Mary Atkinson was not made a party to the suit nor did she appear in the action. Mrs. Y. D. Patterson obtained a judgment for the foreclosure of the mortgage and for $100 attorney fees. On August 14, 1913, the property was sold at sheriff’s sale under and in pursuance of the judgment of foreclosure, and the plaintiff • therein, Mrs. V. D. Patterson, purchased the same for the amount of the mortgage indebtedness and costs, including $100 as attorney fees. A certificate of sale was issued to her by the sheriff. This she assigned to the plaintiff in the ease at bar, who, in due time, received a sheriff’s deed to the property. A short time before the property was sold to satisfy the mortgage plaintiff obtained a deed to the property from Stewart McLeese.
¶5Plaintiff testified that Atkinson and McLeese “were members of the same society' — an old country society’’; that he had met McLeese but once before the execution of the deed; that as consideration for the deed he paid Atkinson $100 cash and agreed to assume the mortgage indebtedness. “Q. Have you the deed in your possession? A. No; I don’t know who has it; I think Mr. Atkinson took it to be recorded, and I don’t think I got it back. … I paid but little attention to it after this lawsuit started” (referring to another suit brought by Mrs. Atkinson to quiet title to the property). Plaintiff, however, does not claim to deraign title through this deed, nor does he claim that it is in any sense a link in his alleged chain of title. It is manifest from the record that the transactions involving the propérty to which McLeese was a party were not made in good faith, and that the consideration, if any. was inadequate.
¶6Plaintiff further testified that before purchasing the sheriff’s certificate of sale he consulted C. S. Patterson in re*449gard to the title to tbe property, and at the time the certificate was assigned to him he employed C. S. Patterson — paid him a retainer- — to represent and defend him in any suit that might thereafter be instituted involving the validity of his. alleged title to the property. This is a circumstance tending to show that he must have had some information regarding the interest Mrs. Atkinson claimed to have in the property. Furthermore, he purchased the property, which the record shows is of the probable value of $2,500, for about $660, the amount of the judgment and costs. This includes $100 allowed Patterson as an attorney’s fee in the foreclosure proceedings brought in the name of his wife, but in which he was, in fact, the real party in interest. This is the inevitable, the only, conclusion that can reasonably be drawn from the record when considered in its entirety. The record also shows that plaintiff, some considerable time before he purchased the sheriff’s certificate of sale, was personally served with a copy of a complaint in an action brought by Mrs. Atkinson against him, the Pattersons, McLeese, and W. J. Atkinson, to set aside the judgment of foreclosure and to cancel the deed from McLeese to plaintiff. It is alleged in that complaint, which was admitted in evidence in this case without objection, that Mrs. Atkinson, at Bridgeport, Conn., gave Atkinson, for her use and benefit, $1,600; that Atkinson came to Utah, and with the money purchased the property in question. It is also alleged in that complaint—
“that on the 14th day of November, 1914, at the time of the commencement of said action to set aside said decree for divorce, the said plaintiff, Mary Atkinson, filed and had recorded a lis pendens, and at the same time and place made her declaration of homestead on the premises above described in the manner provided by law, which lis pendens and declaration of homestead was duly recorded in the office of the county recorder of Salt Lake County, Utah, the county in which said premises is situate, and which was thereafter duly recorded in book '2 — D’ of Declarations, at nage 358.”
¶7• The plaintiff in giving his testimony in the case at bar admitted that he received a copy of the complaint containing the foregoing allegations. He also admitted that Mrs. Atkin*450son, on two occasions before be purchased the sheriff’s certificate of sale, talked with him in regard to the trouble she was having with Mr. Atkinson. And Mrs. Atkinson testified that in the conversation referred to she informed plaintiff of her interest in the property. The trial court, however, struck out Mrs. Atkinson’s testimony on this point. The court held, as shown by the record, that Patterson, the legal adviser of the parties to 1¿he several transactions mentioned involving the property in question, was a bona fide mortgagee, and hence any notice that plaintiff may have had of the claim made by Mrs. Atkinson to the property was immaterial and could not in any sense affect his title. It is also alleged in the complaint last referred to that Mrs. Atkinson- — ■
“offered to redeem said premises from the said purchaser (Mrs. Y. D. Patterson) within six months after the sale under the foreclosure of said mortgage, by paying the purchaser the amount of her purchase in the kind of money or currency specified in the judgment, with interest at the rate of 6 per cent, thereon in addition, together with the amount of an3r assessment or tax the purchaser may have paid thereon after purchase and interest on such amount at the rate of 8 per cent, per annum from the date of sale, … and now brings into court the said sum of money for which said premises were sold, * … together with any assessment or tax which the purchaser may have paid thereon after the purchase, and interest on such sums. ’ ’
¶8It is also alleged that a like tender was timely made by Mrs. Atkinson to the sheriff of F>a1t l ake County on behalf of the purchaser. She, for some reason not disclosed by the record, was not permitted to redeem the property from the foreclosure sale. The refusal to permit Mrs. Atkinson to redeem the property is important, when considered in connection with the other facts and circumstances referred to, as it tends to show that Atkinson, Mrs. Y. D. 'Patterson, and McB. Thomson, plaintiff herein, were, under the advice of C. S. Patterson, determined to employ, under the guise of law, every means at their command to dispossess Mrs. Atkinson of her home and deprive her of her interest therein, regardless of the unconscionableness of the methods adopted. And as here*451inafter pointed out, plaintiff is here asking for the application of equitable principles to quiet the title, thus acquired, to the whole of the property.
¶9The record shows the improvements on the premises in question consists of a house of four rooms; that Mrs. Atkinson, at the time the action was commenced and when the judgment appealed from was rendered, occupied — lived in — two of the rooms and rented the others to one Charles Reynolds, .who, with his "family, occupied the same as his residence.
¶10On March 7, 1914, Matthew McB. Thomson, plaintiff herein, commenced this action in the justice of the peace court of Salt Lake precinct against Reynolds for unlawful detainer. In the complaint it is alleged that plaintiff is the owner of the premises, and "that at the time the plaintiff became the owner by purchase of said premises the defendant was occupying the same without right, title, or interest therein, being a trespasser upon said premises, and not having paid any rent therefor.” Plaintiff prayed "judgment for the restitution of the premises and for damages.”
¶11Reynolds filed an answer in which he denied the allegations of ownership in the complaint and other allegations therein contained on Avhich plaintiff relied for a recovery; and he affirmatively alleged, among other things,
¶12"that at all times in said complaint mentioned one Mary Atkinson was, and now is, the owner of the premises named and described in said complaint, and that at all times in said complaint mentioned the said Mary Atkinson was, and now is, in the quiet, peaceable, and exclusive possession of the said premises and the whole thereof, and that this defendant is a sub-tenant under a lease from the said Mary Atkinson.”
¶13It was also alleged in the answer that, by reason of Mary Atkinson’s ownership of the property, she "is a necessary and proper party to the action.”
¶14The case was certified by the justice’s court to the district court of Salt Lake County.
¶15When the cause came on for trial in the district court Mrs. Atkinson was permitted to intervene, and it was stipulated and agreed between the parties in open court that the answer filed by Reynolds in the case should be treated and considered *452as Mrs. Atkinson’s answer also. The court, and the respective parties to the action, considered and treated it as one to quiet title and it was tried on that theory.
¶16The court made findings of fact in favor of Matthews McB. Thomson on all of the issues. As conclusions of law the court found:
¶17(1) “That the plaintiff McB. Thomson is the owner of the premises described * ® * and the whole thereof, and is entitled to a decree quieting his title thereto, and to a writ of possession of said premises. ’ ’
¶18(2) “That the defendant Charles Reynolds has no interest or title to the said premises, or any part thereof, and no right whatever to the possession of the same, or any part thereof.”
¶19(3) “That the defendant Mary Atkinson has a one-third interest in the premises contingent on the death of the said William Atkinson if she still remain his wife and survive him; that she has no present right of possession in or to said premises, or any part thereof.”
¶20A decree in harmony Avith, and predicated on, the findings of fact and conclusions of law was duly entered.
¶21The errors assigned, on. which the cause was first argued in this court, are:
¶22■ (1) “The court erred in overruling the demurrer to the complaint. ’ ’
¶23(2) “The decision is against law.”
¶24(3) “The decision is contrary to the evidence.”
¶25(4) “The evidence is insufficient to justify the decision.”
¶26As stated in the prevailing opinion, on the first hearing of the case before this court, “the members who then constituted this court being unable to agree, a rehearing of the ease was ordered.” No agreement was then reached because an opinion was prepared and submitted that affirmed the judgment of the trial court, thereby permanently dispossessing and depriving Mrs. Atkinson of her home. Of course, under these circumstances, a disagreement in this court as it was “then constituted” was inevitable. An amended assignment of errors was printed in connection with a supplemental brief; that is, the assignment of errors and the supplemental brief were printed in one document and in this form was *453filed with the clerk. Eespondent’s motion • to strike the amended assignment of errors was also printed with a reply brief, and in that form presented to and filed by the clerk. The most that can be urged against this method of presenting an assignment of errors is that it is an irregularity. This court has repeatedly ignored and overlooked irregularities of this character by counsel in perfecting appeals far more serious than the one here complained of. This, however, is beside the question. The amended assignment was not strick: en, and hence the alleged errors therein set forth are before this court for consideration. Furthermore, it is not, nor can. it be, made to appear that plaintiff is in any sense prejudiced by this so-called irregularity. It is alleged in the amended assignment of errors that the evidence is insufficient to justify the decision, and that the decision is contrary to the evidence and against law, because the uncontradicted evidence shows: (1) That, appellant’s money bought the place, and that the title was taken in the name of her husband, and that he gave the mortgage to Patterson to defraud her; (2) that she did not sign the mortgage and was not a party to the foreclosure; (3) that she lived upon the property with her husband until she learned that he had secured a divorce by making false affidavits; (4) that she has no other home, and that her husband has not provided her with any home; (5) that Patterson was attorney for her husband (in the actions mentioned in the foregoing statement of facts) and had personal knowledge of the facts before taking the mortgage; (6) that respondent was informed of the facts and had full knowledge of the facts before he purchased the property or secured the assignment of the sheriff’s certificate of sale; (7) that the record shows fraud of the worst kind, and that all of the alleged transfers, mortgage, and the purchase thereof, were with intent to defraud appellant.
¶27The trial court ruled the case, as shown by the record, solely on the theory that Atkinson gave the mortgage and Patterson accepted it in good faith, and that it was given for a valuable consideration.
¶28The record, when considered in its entirety, does not support or justify the conclusions,arrived at by the trial court. On the contrary, the several transactions referred to, involv*454ing the property and the circumstances leading up to and surrounding them, in the opinio.> .. - water, point Avith unerring certainty to the fact that Patterson must have known when he obtained tire mortgage that Mrs. Atkinson claimed an interest in the property and that he had notice of the nature and character of the interest claimed by her. He represented Atkinson, as his attorney, in the suit for divorce in which Atkinson, as shown by the undisputed facts, made false, scurrilous, and wicked charges against his wife in his complaint, and made oath to a false affidavit, on the strength of which a pretended service of summons by publication was 'had, for which Atkinson could, and should, have been prosecuted in a criminal action and sent to the state prison. He was also attorney' for Atkinson in the suit brought to set aside the decree of divorce, and hence was fully advised of the criminality of his client in making oath to an affidavit which his client knew to be false, and of his perfidy in defaming and degrading his wife by false allegations contained in the complaint for divorce. And it is manifest from the record that the appeal from the judgment rendered in the suit to set aside the decree of divorce was taken for delay only, and to thereby enable Atkinson to incumber the property in question before Mrs. Atkinson would probably commence an action against him for divorce and seek to prevent him from disposing of or incumbering the home. The mortgage was executed immediately after the court made the order setting aside and vacating the divorce. If, as claimed by respondent, Patterson had no notice of the claim made by Mrs. Atkinson to an interest in the property, and the execution of the mortgage ivas a bona fide transaction on his part, the question arises, why did he assign the mortgage to his wife, and why did he deem it necessary to use McLeese as a dummy in the transactions referred to between Atkinson, McLeese, and Matthew McB. Thomson to create a chain of record title to the property running from Atkinson to the plaintiff independent of the link furnished by the sheriff’s deed — a chain of 'title that neither he nor his client relied on at the trial to prove title?
¶29The record, shows that after the perfidy of Atkinson was *455laid bare, and the blot he had cast on the good name of his wife, who, the record affirmatively shows, was innocent of any wrongdoing, was removed by the court, as far as it was possible for the court so to do, by setting aside the decree of divorce on the ground of fraud and false swearing on the part of Atkinson, Patterson, with the aid of his wife, Atkinson, McLeese, and plaintiff, finally succeeded in procuring a judgment which if upheld would deprive Mrs. Atkinson of her home. Furthermore, the only reasonable conclusion that may be fairly deduced from the record is that Patterson had notice of the claim made by Mrs. Atkinson to an interest in the property. And the record further shows that plaintiff was not, as a matter of law, an innocent purchaser. Mrs. Atkinson’s possession was not only sufficient to put him and Patterson on inquiry as to her rights, but it was notice to each of them of any right, title, interest, or claim she had in or to the property. 2 Jones Real Property & Conv. sections 1563-1564, and 1574; 2 Devlin on Real Estate (3d Ed.) section 760; Toland v. Corey, 6 Utah, 392, 24 Pac. 190; Warr v. Honeck, 8 Utah, 61, 29 Pac. 1117; Land & Livestock Co. v. Dixon, 10 Utah, 334, 37 Pac. 573; Smith v. Myers, 56 Neb. 503, 76 N. W. 1084; Niles v. Cooper, 98 Minn. 39, 107 N. W. 744, 13 L. R. A. (N. S.) 49; Dickey v. Lyon, 19 Iowa, 544; 2 Pomeroy, Eq. Juris. (3d Ed.) sections 614 and 615; Texas Land & Loan Co. v. Blalock, 76 Tex. 85, 13 S. W. 12. In the ease last cited it is said:
“ Every person dealing with land must take notice of an actual, open, and exclusive possession, and where this, concurring with the interest in the possessor, makes it homestead, the lender stands charged with notice of that fact.”
¶30Furthermore, the record shows that plaintiff had actual notice of the character and extent of the interest Mrs. Atkinson claimed to have in the property, and that he had actual notice that she claimed it as her homestead. He admitted, while testifying, that he was served personally with a copy of the complaint offered in evidence, in which it set forth Mrs. Atkinson’s claims of an interest in the property, also that she claims it as her homestead. His evidence on this point was *456not stricken. In fact, the knowledge he thus acquired of Mrs. Atkinson’s claims could not be stricken. The question, is did he have notice ? If he did, it matters not how or from what source he acquired it.
¶31The important and decisive question is1, who is entitled to the possession of the property, Mrs. Atkinson or Matthew McB. Thomson? It is insisted on behalf of Mrs. Atkinson that she is entitled to remain in possession under the Homestead Act, tit. 32, Comp. Laws Utah 1907. The act, so far as material here, provides (section 1148) :
¶32"If the homestead claimant is married, the homestead may be selected from the separate property of the husband, or, with the consent of the wife, from her separate property.”
¶33The record in this ease shows no declaration of homestead was made until after the property was sold at sheriff’s sale under the foreclosure proceedings, but that a declaration was made, filed, and recorded before Matthew McB. Thomson purchased and had assigned to him the sheriff’s certificate of sale. It is therefore urged in behalf of respondent that Mrs. Atkinson, having failed to make, file, and have’recorded a declaration of homestead until after the property was sold under the foreclosure proceeding, waived her right to claim the property as a homestead.
¶34Comp. Laws Utah 1907, section 1149, provides that:
¶35"Any person who is the head of a family may make a declaration of homestead in the manner provided in the next two sections, but a failure to make such declaration shall not impair the homestead right.”
¶36Section 1207:
¶37"Neither the husband nor wife can remove the other, or their children, from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family. ”
¶38It will be observed that under the foregoing provisions of the statute the failure to file a declaration of homestead as therein provided "shall not impair the homestead right.” Mrs. Atkinson therefore did not waive her right to occupy the property in question as her home by failing to file a declara*457tion oí homestead. Her husband, even if he were the sole owner, could not, under section 1207, legally remove her from the property without first providing her another homestead. Atkinson, therefore, could not, by transferring the legal title without his wife’s concurrence, confer upon the grantee any greater dominion over the property than he himself possessed.
¶39For the reasons herein stated I am clearly of the opinion that the case should be reversed, with directions to the lower court to vacate and set aside the findings of fact and decree heretofore made and entered, and to dismiss the action.