have required that the title deeds should remain in their custody, with a memorandum by way of equitable mortgage as a security for the unpaid purchase money, and, if they had done so, they would have been secure against any subsequent equitable incumbrance; but that they did not choose to do, and the deeds were delivered to the purchaser. Thus they voluntarily armed the purchaser with the means of dealing with the estate as the absolute legal and equitable owner, free from every shadow of incumbrance or adverse equity. In truth it cannot be said that the purchaser in mortgaging the estate by the deposit of the deeds has done the vendors any wrong, for he has only done that which the vendors authorized and enabled him to do. The defendant, who afterwards took a mortgage, was in effect invited and encouraged by the vendors to rely on the purchaser's title. They had, in effect, by their acts, assured the mortgagee that, as far as they (the vendors) were concerned, the mortgagor had an absolute indefeasible title both at law and in equity.

The mortgagee was guilty of no negligence. He was perfectly justified in trusting to the security of the equitable mortgage by deposit of the deeds, without the slightest obligation to go and inquire of the vendors whether they had received all their purchase money, when they had already given their solemn assurance in writing that they had received every shilling of it and had conveyed the estate and delivered over the deeds; and I do not think that the fact of the conveyance bearing date only the day before the mortgage imposed on him any such obligation. The defendant omitted nothing that was necessary to constitute a complete and effectual equitable mortgage; and although the mortgage was taken, not for money actually_advanced at the time, but for an antecedent debt, the forbearance of that debt constitutes a full and sufficient valuable consideration.

Upon a comparison then of the conduct of the two parties, and a consideration of all the circumstances of the case, and especially the fact of the possession of the deeds, which the mortgagee acquired with perfect bona fides, and without any wrong done to the vendors, I am of opinion that the equity of the mortgagee is far better than that of the vendor, and ought to prevail.

I may, in conclusion, venture to make the suggestion that the point now under consideration is often put by text-writers in a form calculated to mislead, when it is propounded as a question whether the vendor, in respect of his lien for unpaid purchase money, or an equitable mortgagee, ought to be preferred, or when an opinion is expressed that the one or the other has the better equity. If I am right. in my view of the matter, neither the one nor the other has necessarily and under all circumstances the better equity. Their equitable. interests, abstractedly considered, are of equal value in respect of their nature and quality; but whether their equities are in other respects. equal, or whether the one or the other has acquired the better equity,

must depend upon all the circumstances of each particular case, and especially the conduct of the respective parties. And among the circumstances which may give to the one the better equity the possession of the title deeds is a very material one. But if, after a close examination of all these matters, there appears nothing to give to the one a better equity than the other, then, and then only, resort must be had to the maxim, "Qui prior est tempore potior est jure," and priority of time then gives the better equity.

VI. He Who Seeks Equity Must Do Equity Buch your dered to reform plending

OTIS v. GREGORY.

(Supreme Court of Indiana, 1887. 111 Ind. 504, 13 N. E. 39.)

MITCHELL, J. This was an action by Mary E. Gregory against Amos Otis to quiet title to real estate. The plaintiff alleged that she was the owner in fee-simple of a certain particularly described tract of land in La Porte county, and that the defendant had, or claimed to have, some interest in or claim to the same, or some part thereof, of the nature of which she averred she was not advised. She alleged that the defendant was giving out to the public that he had some claim to the real estate described, by reason of which she was damaged, in that it prevented her from making sale of her land. Prayer that the plaintiff's title might be quieted, and for all other proper relief.

The foregoing summary of the complaint discloses that neither directly, nor by necessary inference, does it appear that the defendant was asserting any hostile or adverse title to the real estate in question, nor does it appear that the claim which the defendant was setting up was unfounded, and cast a cloud upon the plaintiff's title. Admitting every averment in the complaint to be true, there is nothing to invoke the jurisdiction of a court of equity to quiet the plaintiff's title. For all that appears, the defendant may have had a valid mortgage on the land, and this may have presented the only obstacle to the sale of the real

estate.

It has often been held although the plaintiff in an action to quiet title need not state in his complaint with much particularity the nature of the title, or interest claimed by the defendant in or to the real estate in controversy, yet the rule is uniform that the complaint must show, either by direct averment, or by the statement of facts from which the inference necessarily arises, that the defendant's claim is adverse to or is unfounded, and a cloud upon the plaintiff's title. Bank

• For discussion of principles, see Eaton on Equity (2d Ed.) § 19.

v. Corey, 94 Ind. 457; Conger v. Miller, 104 Ind. 592, 4 N. E. 300; Rausch v. Trustees, 107 Ind. 1, 8 N. E. 25.

The complaint in the case before us cannot be distinguished from that in Bank v. Corey, supra. The conclusion follows that the assignment of error that the complaint does not state facts sufficient to constitute a cause of action is well made.

As it may serve to bring the controversy between the parties to a conclusion, we will consider the questions made upon the answer, to which the court sustained a demurrer. Without having made any question upon the complaint, the defendant answered, in substance, that in the year 1873 the plaintiff was a married woman, residing in the state of Michigan, and the owner in her own right of certain real property in that state; that by the statute of the state of Michigan, which is set out in the answer, married women are empowered to contract with reference to and to convey and mortgage their separate real estate in all respects as if they were unmarried. It is averred that on the fifteenth day of October, 1873, the plaintiff and her husband became indebted to the defendant in the sum of $465. This indebtedness was secured by a mortgage executed by the plaintiff on her separate property in Michigan. Afterwards, in June, 1874, the plaintiff sold her Michigan property, and purchased that in question in La Porte county. To enable her to make the purchase, it became necessary that she should be able to use the entire purchase money arising from the sale of the Michigan property, including the amount due the defendant on his mortgage debt. The defendant agreed that he would release his mortgage on the property in Michigan, and permit the plaintiff to use the amount due him in paying the purchase money of the La Porte county property, she agreeing to give him a mortgage on the latter when the transaction should be completed. The defendant released his mortgage accordingly, and took a mortgage executed by the plaintiff, without the joinder therein of her husband upon the property described in the complaint. Mrs. Gregory paid for the property purchased with the proceeds of that sold. This last mortgage, it is averred, was executed in the state of Michigan; both parties believing in good faith at the time, that the law of Indiana, as in Michigan, empowered a married woman to incumber her separate real estate, without the joinder of her husband. But for such belief the defendant says he would not have released his mortgage on the Michigan property, and received that on the property in Indiana.

It appears that the only interest that the defendant claims in the land in question is such as results from the foregoing facts. It further appears that the only purpose of this action is to secure a cancellation of the mortgage thus taken, and a removal of the apparent cloud or incumbrance which it casts upon the plaintiff's land.

The appellant claims that the circumstances are such as that it would be inequitable to cancel his mortgage without first requiring

payment of the debt which it was intended to secure, or otherwise placing him in as favorable a position as he would have occupied in case he had received a valid mortgage. In other words, his position is, since Mrs. Gregory has come into a court of equity, asking its aid to cancel an alleged invalid mortgage, which was made and received in good faith, she must accept the aid of the court in subordination to the maxim, "He who seeks equity must do equity." That this maxim, in its true spirit and purpose, expresses the principle which lies at the foundation of all equity proceedings, guiding and governing courts of equity at every stage in the administration of justice, is one of the distinguishing excellencies underlying all chancery jurisdiction. Eq. Jur. §§ 120, 363.

In a court of equity, the principle thus expressed is as authoritative as though it were enacted into positive law. In its proper sense, it is a universal rule, binding upon parties and courts in all controversies in which complete justice can only be accomplished by its application within reasonable and recognized rules.

Plowden, speaking of the quality of maxims, in Colthirst v. Bejushin, 1 Plow. 27, says: "Further, there are two principal things from whence arguments may be drawn-that is to say, our maxims, and reason, which is the mother of all laws. But maxims are the foundations of the law, and the conclusions of reason, and therefore they ought not to be impugned, but always to be admitted. These maxims may, by the help of reason, be compared together, and set one against another, although they do not vary, where it may be distinguished by reason that a thing is nearer to one maxim than another, or placed between two maxims. Nevertheless they ought never to be impeached or impugned, but always to be observed, and held as firm. principles and authorities of themselves."

Accepting the maxim above referred to as in the highest degree authoritative, it becomes proper to inquire concerning the manner of its application in the practicable adjustment of controversies between parties. What is the "equity" which a party appealing to a court of chancery must do before he is entitled to relief? Can a party, who becomes plaintiff in a court of equity, be compelled, as the price of the relief demanded, to surrender to the defendant something which the latter could not have compelled by some proceeding, either at law or in equity, in case the former had not appealed to the court? If he can, then the rule that he who would have equity must do equity depends for its application in each case upon the arbitrary notions of the chancellor, concerning the equities between the parties. The effect of such an application of the rule would inevitably, in many cases, be to refuse aid, to which a plaintiff would be entitled, except upon condition that the latter should concede to the defendant some supposed equitable right, which was not enforceable at law, nor cogniz

able in a court of equity, and hence not within any description of a legal or equitable right.

So far as any general rule on the subject can be laid down, it may with assurance be stated that a plaintiff who shows himself otherwise entitled to the aid of a court of equity will not be denied relief, unless the defendant brings forward some corresponding equity growing out of the subject-matter then in suit, which would at some time subsequent to the transaction, in some form of proceeding, entitle him to a remedy against the other party in respect to the subject-matter involved. It cannot be maintained, in reason, that a defendant, to whom the plaintiff is under some imperfect obligation of a merely moral character, which never had and never could ripen into an enforceable legal or equitable right, may nevertheless, for some merely sinister purpose, defeat an equity to which a plaintiff is entitled. If the defendant, at no time subsequent to the transaction which formed the subject-matter of the plaintiff's bill, had, and could not thereafter acquire, in respect to that transaction, any right to relief cognizable in a court of equity or otherwise, no reason is perceived why the plaintiff should be denied an equitable remedy, to which he would otherwise have been entitled,

As was said by the learned vice-chancellor in Hanson v. Keating, 4 Hare, 1: "The court can never lawfully impose merely arbitrary conditions upon a plaintiff only because he stands in that position upon the record, but can only require him to give the defendant that which by the law of the court, independently of the mere position of the parties on the record, is the right of the defendant in respect of the subject of the suit." Or as the same learned judge said in Neesom v. Clarkson, 4 Hare, 97-100: "I think it may be generally said that, unless the equity which the defendant claims from the plaintiff is one which the defendant might enforce by bill, it is not a term which the court has a right to impose on the plaintiff." It may be admitted that there are cases which do not seem to fall within the foregoing general principles; but such cases must be regarded as of a special and exceptional character. Pom. Eq. Jur. §§ 385, 386. The general doctrine, as stated in Hanson v. Keating and Neesom v. Clarkson, supra, meets the approval of our judgment.

It should be observed that the rule embraces and applies only to the one matter, which is the subject of the suit, and not to distinct transactions, having no proper relation to nor connection with the subject-matter of the action. The plaintiff who seeks the aid of a court of equity must submit to the condition that all corresponding equities of the character above described, in favor of the defendant, growing out of the subject-matter or transaction involved in the suit, may be fully and finally adjusted. Tuthill v. Morris, 81 N. Y. 94-100. With the foregoing principles in view, we proceed to consider the equities of the respective parties to the record. Since conveyances and mortgages of real estate take effect according to the law of the place where the land conveyed or mortgaged is situate, it follows, re