majority">Tompkins, J.,

delivered the opinion of the Court.

On the eleventh day of June, in the year 1838, William Hook commenced this suit against Richard Durrett and Edmund McAlexander, in the Circuit Court of Saline county, on the chancery side thereof. In his bill he states, that on the 25th day of October, 1834, Richard Durrett made and executed to Edmund McAlexander his writing obligatory, by which he bound himself to execute and make to said McAlexander a good and lawful deed to a certain tract of land in said county, containing one hundred and twenty acres; and that, for a good and valuable consideration paid by Elijah Hook and William Hook, the complainant, the said McAlexander assigned to them the said writing obligatory; and the said eonvejrance having to be made by the said Richard Durrett on demand, and Elijah Hook, one of the assignees thereof, having departed this life on the first day of July, 1835, the complainant, William, on the first day of January, 1838, demanded of the said Durrett a deed for the same, according to the terms of the said writing, and the said Durrett refused to make the same, &c.

*378The complainant further alleges, that he is sole devisee and executor of the said Elijah Hook, and that the said Richard Durrett, by said writing obligatory, admitted, that he had been fully paid for the said land by the said McAlexander; and the complainant stales, that the same is true, or that, if he has not, it has been by the fault, negligence or consent of the said Durrett, and by hjs connivance, to form a pretext for not conveying to the complainant. The bill concludes in the usual manner, praying’that the defendant be caused to answer, to convey, Sic., and that McAlexander also answer, Sic.

Richard Durrett answered, praying that Benjamin L. Durrett be made a party to the bill of the complainant, and stated, that the land mentioned in the bill was purchased by him, from one Richard Clark, for the consideration of four hundred and ten dollars; two hundred dollars of which said Benjamin paid to said Clark in cash, and executed his two notes, with this defendant as security, for the remaining part of two hundred and ten dollars, to said Clark, with the respondent Richard as his security; that, to secure himself from sustaining any loss by being security as aforesaid, the respondent took-the deed of conveyance of said land from Clark to himself, but permitting said Benjamin, the beneficial owner of the land, to dispose of it at his pleasure; that said Benjamin did afterwards, as the defendant was informed, and as he expected to be able to prove, on the 25th day of October, 1834, contract to convey the said land to one Edmund McAlexander, for the sum of four hundred and ninety dollars, two hundred and eighty dollars of which be promised to pay to said Benjamin in a few days, and for the remaining sum of two hundred and ten dollars, (for which the respondent was still bound to said Clark as security, as aforesaid,) said McAlexander gave his notes to this respondent, with William Hook as security; but the respondent states, that after the said McAlexander obtained the bond for a title as above-mentioned, and giving his notes as aforesaid to this respondent, he failed to comply with his contract to pay to said Benjamin the said sum of two hundred and eighty dollars, and refused to pay the same, and refused to deliver up the title bond which he had obtained under false pretences as aforesaid.

In an amended answer, the defendant, Richard, admits the execution of the title bond, and states, that the two notes executed to him by McAlexander, and the complainant, Hook, as his security, were due at the same time those executed by him as security for BenjaminL.Durrett, and were to become due to Richard Clark, and that McAlexander promised to pay them when so due, and deliver them to the respondent. The respondent, Richard, in his amended answer, further stated, that said Benjamin L. Durrett and McAlexander came together to his house, to inform him of the contract for the sale and purchase of this land, and that said Benjamin did not remain there until the bond for the title to the. land was executed by the respondent; but went home and instructed the respondent not to deliver the said writing to said McAlexander, but to keep it for him, said Benjamin, and that he would himself deliver it, whenever McAlexander should pay him the said sum of two hundred and eighty dollars; that, after the departure of said Benjamin, said McAlexander drew said writing obligatory, and that this respondent did then sign *379and seal the same, and lay it on the table, not intending to deliver it to said Me-Alexander, but that MeAlexander, about the time he was going to leave the respondent’s house, without the respondent’s leave, took the writing and carried it away with him; he admits, that he did not forbid him, or say any thing to him at the time, but refrained, believing that MeAlexander would fulfil his promise, and also from motives of delicacy. The answer concludes with a denial of any payment being made either by Hook or MeAlexander to Benjamin L. Durrett, of the sum of two hundred and eighty dollars, or to Richard Clark or to the respondent, of the sum of two hundred and ten dollars, for which the respondent stood bound to Clark as security for Benjamin L. Durrett as aforesaid, for a part of the consideration of the land.

On the 22d of February, 1840, the complainant filed in this cause an amended bill, making Benjamin L. Durrett co-defendant to the bill of complaint. In this amended bill he slates, that said Benjamin L. Durrett, at the time of the purchase of the said land in the original bill mentioned, from Richard Durrett, by McAlexander, was the owner of the said land, and held the title thereto in the name of the said Richard Durrett, who executed the title bond to said MeAlexander, and who assigned the same to the said complainant, as above in said bill stated; that the same was so held to deceive and defraud the said Benjamin L. Durrett’s creditors; that the said Benjamin was largely indebted and owed said Elijah and William Hook two notes which are made exhibits to this bill, the one dated November 29, 1833, for $325, due at three months after date; the second due at nine months after date, given the same day for $675; that, at the time of the purchase, the said MeAlexander executed his two notes to Richard Durrett for two hundred and ten dollars, with William Hook security, due at the same time said Richard’s notes to said Clark were due, and said MeAlexander promised to pay said Benjamin the residue, being two hundred and ninety dollars, in a few days, and that the said MeAlexander, at the lime specified, offered the said Benjamin payment in the above-mentioned notes of Benjamin L. Durrett, due to Elijah and William Hook, the same being placed in his hands, with authority by Elijah and William Hook to make the first payment for the land, and said Benjamin, admitting said notes to be due, refused to receive a credit on them in payment for the land; that, after the title bond of the defendant, Richard, was assigned to him by MeAlexander, as in the original bill stated, when one hundred dollars, the first note of MeAlexander, became due, for the last payment he offered to pay the same to the said Richard in money, and that he refused to receive it, and declared that he would neither receive pay for that note, nor for the other given for $110; that he repeatedly -offered to said Benjamin and Richard to allow the whole payments for the said land out of the aforesaid notes which the said MeAlexander re-assigned to him when he assigned to him the title bond aforesaid. This amended bill prays, that both defendants may answer, and prays a specific performance, &c.

Richard Durrett answers this amended bill; denies that the land held, as stated in his last amended bill, was held to deceive and defraud the said Benjamin’s creditors; and also denies, that either said MeAlexander or the complainant ever offered to pay to him the sum of one hundred dollars, as in his bill is stated, or *380that he himself ever refused to receive of him the said sum of one hundred dollars, or the said sum of one hundred and ten dollars, as in his bill is stated.

Benjamin L. Durrett came in and answered, stating the purchase of the land from Clark by himself, and the sale to McAlexander, and every thing relative to the purchase from Clark and the sale to McAlexander, as is stated in the answer of the said Richard. The answer of Benjamin L. Durrett re-asserts all the facts set up by that of Richard Durrett relative to the sale of the land to McAlexander, and his offer to pay in the notes made by the respondent, Benjamin, to E. and W. Plook. He also relies on the statute of frauds. /

The bill of exceptions sets out the title bond made by Richard Durrett to McAlexander, and its asssignment, as stated in the bill, to Hook, complainant.

McAlexander having been released by Plook, was introduced as a witness. This witness states the agreement of himself and Benjamin L. Durrett, for the sale and purchase of the land, the making of the title bond in the same manner as the same is stated in the bill and answer above: but he states that the title bond was delivered to him by Richard Durrett; that, a day or two afterwards, the witness called on the said Benjamin, and tendered to him payment of the said balance of said purchase money, the said notes executed by the said Benjamin to said William and Elijah Hook, and by the said William, surviving partner of said Elijah, assigned to witness; that said Benjamin then refused to receive said notes in payment of said balance, and that said witness refused to pay said balance in any other manner than by said notes; that said witn'ess then assigned said title bond to the complainant.

This witness, on cross examination, stated, that before he had made any agreement with the said Benjamin for the purchase of said land, he and the complainant had some conversation about said purchase, which conversation was held at the instance of the said witness, and the complainant then told the witness, that if he could purchase said land of said Benjamin, he, the complainant, would sell to the witness the said notes of the said Benjamin at a large discount, and would give witness time bn the balance of said notes; that the complainant offered to deduct about ninety dollars from said notes; that the witness agreed to buy the notes on such terms; that, at the lime he purchased the land, he said nothing about paying the balance of said purchase-money in said notes; that he purposely avoided saying any thing to said Benjamin at the time of the purchase, about the manner of making 'the payment of the balance of the purchase-money, and he believes he left the impression on the mind of the said Benjamin at the time of the purchase, that he would receive from the witness the remaining part of the price of the land, in money, and that he did not believe that said Benjamin would have sold the land, ■unless he had expected to receive the remaining part in money; that, some time afterwards, he assigned the said bond for a conveyance of the land, to the complainant; and that he also re-assigned to the complainant said notes of said Benjamin, made to said William and Elijah Hook.

The complainant proved, by another witness, a demand of a deed from Richard Durrett, and that Richard Durrett admitted, at the same time, that the money was tendered to him by Hook some three or four months after it was due.

*381One Garrett, produced as a witness by defendant, stated, that he was at the house of Richard Durrett in the yfear 1834, and that said McAlexander asked him to witness a title bond, and that he did so, and that said McAlexander took it up off the table which was sitting at the end of the house, and (says the witness) we all walked towards the fire-place. McAlexander appeared to be in a hurry, and observed, that he would pay over to Benjamin Durrett, in a day or two, witness thought it was $200, or more, and McAlexander left without sitting down, and that Mrs. Durrett asked Richard Durrett if McAlexander ought to have had that paper, and that Durrett answered, he reckoned McAlexander would do what was right.

The defendant in error contends, that as Benjamin L. Durrett, if he had brought an action against the complainant, Hook, or against McAlexander, on the agreement to pay $280 in time specified, i. e., two or three days, would, under the statute of set-off, be compelled to receive the notes by him made to Hook in pay, therefore, when Hook, by his bill in chancery, prays a specific performance of the contract to convey land, Durrett shall be compelled to take the consideration to bo paid for the land in his own notes. I cannot perceive that the one is a consequence of the other. If Durrett had sought to compel Hook or McAlexander to pay this sum of $280, the law, which he calls to his aid, says that he shall receive in pay his own paper, which the defendant in the action at law holds. But here it is Plook, assignee of McAlexander, that sues Durrett, and wants Durrett to receive his own paper. This cannot prevail. If Durrett be insolvent, as it is said, he ought to be secured in his right to pay all his funds either equally to all his creditors, or to any one whom he may prefer. But it is contended, that there is no pretence set up in the answer or evidence introduced to show that Durrett wished to do the one or the other of these things, and therefore Hook supposes he has the right to appropriate all of Durrett’s substance to his own use.

There cannot certainly be any necessity for him either to state in his answer, or to prove, that he did intend to do any such thing. It is true that the complainant has alleged in his bill, that this land was conveyed to Richard Durrett by Clark, to deceive and defraud the creditors of Benjamin L. Durrett, and B. L. Durrett has unnecessarily denied it in his answer. It may possibly be true that Durrett did intend to deceive and defraud his creditor, but that cannot possibly give Hook any right to call on a court of equity to apply the property of Durrett to pay what he owes to Hook. But if we admit, for the present, that a court of equity could correctly compel a defendant, who had promised to convey for a consideration in money, to receive his own notes in payment for the land, yet the court will always see that the person who prays its aid comes in with clean hands. In this case, Hook first introduces his complaint with the most impertinent and irrelevant charge that the title to this land was held by Richard Durrett to deceive and defraud the creditors of Benjamin L. Durrett;. that he, B. L. Durrett, was largely indebted, and owed Hook a large sum of money. He next introduces this said McAlexander, whom he had released in order to render him competent, to prove his own unworthiness. McAlexander, as above stated, declares that in the treaty for this land he had cautiously concealed from B. L. Durrett that the first payment ($280) *382was to be made in his own (Durrett’s) notes, and that he did not believe that Durrett would have agreed to sell him the land if he had not expected to receive the first payment in cash, and the statement of this witness is sufficient to induce any one to believe that it was intended by Durrett that the delivery of the deed and the payment of the sum of $280 should be simultaneous acts. But as it' seems, he takes up the deed and goes off hastily, observing, that in two or three days he would pay the money to B. L. Durrett. He gave no written promise to pay the money. No man of business habits would have suffered the bond to be carried away under such circumstances, nor would any honest candid man have attempted such an act. Mr. Hook not only receives this obligation by assignment stained with' the grossly improper conduct of his assignor; but his own witness, this said McAlexander, proves that he prompted the witness to the act. If the conduct of McAlexander had been otherwise honest, a delivery of the bond by Durrett would be presumed, but as the case now is in evidence, a jury would be very easy indeed to find a delivery of the bond.

The witness, Garrett, says, that the table on which the bond lay, when he witnessed it, was at the far-end of the house, and we all walked to the fire,- that McAlexander appeared to he in a hurry, and went away, making the promise to pay B. L. Durrett in two or three days.

A specific performance of a contract is not a matter of course, hut rests entirely in the discretion of the court, upon a view of all the circumstances of the case.— 6 Johns. Chan. Rep., 222, Seymour vs. Delaney.

In this case the Circuit Court decreed a specific performance by Durrett, and that Hook should credit the notes of B. L. Durrett above-mentioned, with the first payment, viz., $280, and pay to Richard Durrett the sum of $210,, with interest.

This decree of the Circuit Court must he reversed, and the bill dismissed at the costs of the complainant.

JVole.— Napton, Judge, did not sit in this case, having been of counsel in the court below.

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