¶1This is an action to recover the pos~ session of personarJ property. The jury rendered a verdict in favor of the~ laintiff. Defendant moved for a new trial, upon a state rient. The motion was denied, and defendant appeals porn the judgment, and order denying his motion for a n ~w trial.
¶2The statement ~hows that after the jury had been sworn, the plaintiff's attorney stated the issue and his case as follows: -
"Mr. Chase, I ~vill first read to you the pleadings which show the i~sues of this case, and then will state briefly the facts expect to prove under those issues. [Reads the comp1a~nt and answer.~
"Now, these par~ies, the plaintiff and defendant, live over in the soutliea~t part of the county, beyond Clayton, and are farmers. The plaintiff is in very good circumstances, and owns the property which is described in the complaint and ant~wer. The defendant's relative came *71to the plaintiff, and without any cause whatever made up a story,-—a lie, in fact, — and told the plaintiff that one Thomas Williams was about to attach him, the plaintiff (the plaintiff was owing him), and that he had better put his property over in his brother’s hands; he had real estate there, he had hay, he had property a good many times the value of the property than what the plaintiff was owing this Williams; but the defendant’s brother worked upon the fears of the plaintiff in that way, telling him that Williams was about to attach him, and that he should put his property over in the defendant’s hands, and keep it a while, and turn it back again. The facts are right there, that Williams had no idea of attaching him; he did not intend to, he knew the plaintiff was perfectly good, he had plenty of property to pay his debts, and this story was manufactured out of whole cloth. But after conversing a while, the plaintiff and defendant went to Antioch, and a pretended bill of sale of the property was made out, and the property was temporarily turned over to the hands of the defendant. At Antioch the pretended purchase-money for the property was paid out to the plaintiff, some two hundred odd dollars, — I think one hundred and fifty or two hundred dollars,— and a bill of sale was signed, and then when they got out, according to a previous agreement, the money was returned by the plaintiff to the defendant; a part of it was borrowed there in Antioch, and it was returned to the defendant and the parties it was borrowed from. Time passed along, and the defendant stated to confidential friends who lived in the community that this was only a sham sale, and the property did not belong to him, the defendant, at all; it belonged to the plaintiff, and that it would soon be returned to him. He told several that fact; that subsequently the defendant got the impression that he could hold this property, and decided that he would keep it, and some discussion arose out of it, — some lawsuits arose out it, — until the feeling between them became such that the defendant determined that he would hold the property, and the result was the bringing of this *72action for the recovery of the property or its value; these are, substantially, the facts we expect to prove.”
¶3Mr. McElrath, attorney for defendant, said: “Upon the opening statement of Mr. Chase, we move that he be nonsuited. If Mr. Chase’s statement is correct, it is that the defendant’s brother went to the plaintiff and informed the plaintiff that a man by the name of Williams, and who was a creditor of the plaintiff, was going to attach him, and the plaintiff, for the purpose of hindering, defrauding, and swindling this creditor, transferred his property to the defendant. Of course, I don’t admit such are the facts. I say, upon the plaintiff’s own statement, if those are the facts, the doors of this court-house are closed against him, and he is not entitled to come in here; he is in that condition of fraud that he does not come into court with clean hands. I refer your honor to the case in the 25th California, page 654, Gregory v. Haworth. We move for a nonsuit, and ask a judgment for the value of the property or for its return, and for costs.”
¶4The court, after hearing argument, overruled the motion, and defendant excepted.
¶5According to this statement of plaintiff’s attorney to the jury, the defendant obtained possession of the property sued for, without giving any consideration therefor, by fraudulent misrepresentation. The misrepresentation consisted in defendant’s representing to plaintiff that a creditor of his was intending to attach his property, when in fact the creditor named had no such intention, and plaintiff had plenty of other property to pay his debts. If the property had been placed by the plaintiff in the hands of the defendant for illegal purposes, and the defendant refused to return it, the plaintiff would have to abide the loss, for in pari delicto, melior est conditio possidentis.
¶6But courts, both of law and equity, have held that two persons may concur in an illegal act without being deemed to be in pari delicto. In this case, the defendant alone was guilty of fraud. He cannot avail himself of *73his own fraud as a defense. ‘"For no man shall set up his own iniquity as a defense, any more than as a cause of action.” (Montefiori v. Montefiori, 1 W. Black. 364, per Lord Mansfield.)
¶7It does not appear that plaintiff consented to the transfer of the property with the intent to hinder, delay, or defraud any creditor. If not, he was simply an innocent victim of the defendant’s wiles.
¶8To permit the defendant to retain what he had thus fraudulently obtained the possession of would be to enable him to take advantage of his own wrong, contrary to the maxim, Nullus commodum capere potest de injuria sua propria.
¶9The maxim, In pari delicto, melior est conditio possidentis, is one of public policy, and public policy could not best be subserved by applying it to this case.
¶10The motion for a nonsuit was properly overruled.
¶11The evidence of the plaintiff tended to prove a stronger case than the statement of his attorney, which we have above considered. We cannot hold that his evidence is insufficient to justify the verdict of the jury, although it conflicts in many respects with the evidence of the defendant.
¶12Judgment and order affirmed.
¶13McFarland, J., concurred.