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(282 . 593, 118 N. E. 1004.)

manded the cause, with directions to again refer it to a master in chancery, to resume the hearing where the court took it up. This court granted a writ of certiorari to bring the record here from the appellate court for review.

In case a bill is filed for an accounting and the right is disputed,

Accountingquestion for court.

the first question to be determined is whether there is such a right which is found by the court, and if the finding is in favor of the complainant the decree is interlocutory, to be followed by the accounting. In this case the court heard all the evidence, both that which related to the right to an accounting and that which concerned numerous items of the account. As the decree made no finding of any fact, and did not state an account showing there was nothing due the complainant, the only possible ground for dismissing the bill was that complainant was not entitled to an accounting. It should not be presumed that the court attempted to state an account in a case where, by the chancery practice, the court could not do it, but could, by an agreement of the parties, hear the evidence as to a right to an accounting. The conclusion contrary to the evidence, which clearly established the complainant's right to have an account between herself and the estate of her deceased brother stated. Erastus A. Barnes died on January 7, 1909, in his sixtieth year, and they had lived together most of the time for thirtyseven years, both being school-teachers and unmarried, until the marriage of Erastus to the defendant,

Appeal-dismissal of bill for accounting.


about four months before his death. Each one had executed a will in favor of the other, the will of Erastus being revoked by his marriage. Their relations were most intimate and confidential, and there was evidence of a great many witnesses that Erastus received and took charge of money of the complainant, and invested it in stocks and securi

ties for her. Aside from disputed questions there is no denial of the fact that for several years before the death of Erastus, stocks, bonds, and securities were contained in a safety deposit vault held jointly by him and the complainant. After his death the parties to this suit, with their solicitors, went to the safety deposit vault, and opened the box, and took out the securities. Some of them appeared to belong to Erastus, and some to the complainant, and there were others the ownership of which was doubtful. It was impossible to determine the ownership of these doubtful securities without evidence. It is not denied that the relations of the parties were confidential,-at least, in respect to some of their business transactions,-and that there were unsettled matters between them. The charge of the bill that a trust existed and had never been settled was

who entitled.

proved, and a de- Accountingcree dismissing the bill for want of equity was wrong.

It is contended that the decree dismissing the bill was justified on two grounds: First, that the suit was barred by the Statute of Limitations; and, second, that the complainant was not entitled to the relief prayed for because she did not come into a court of equity with clean hands. The trust proved was a voluntary, continuing, equitable trust in personal property which may property-parol. be created by parol.


Price v. Laing, 152 Ill. 380, 38 N. E. 921; Maher v. Aldrich, 205 Ill. 242, 68 N. E. 810. The Statute of Limitations does not begin to run against such a trust until the trust is re

pudiated or the trust relation between the parties Limitation of comes to an end. actions-against The trust not hav- trust in personal property. ing been repudiated or denied by Erastus A. Barnes, the statute did not begin to run until his death. Hancock v. Harper, 86 Ill. 445; Chicago & E. I. R. Co. v. Hay, 119 Ill. 493, 10 N. E. 29; Horne v. Ingraham, 125 Ill. 198, 16 N. E.


868; Pierce v. Perry, 189 Mass. 332, 109 Am. St. Rep. 637, 75 N. E. 734; 17 R. C. L. 795. The bill was filed on January 4, 1910, within a year after the death of Erastus A. Barnes, and the suit was not barred by the Statute of Limitations.

He who comes into a court of equity must come with clean hands, and one who does iniquity cannot have equity; but that maxim is limited in its appli


maxim-when applicable.

cation to where the substance of the thing is inequitable, and the iniquity must apply to the particular subject-matter. It is not sufficient to bar relief that inequitable conduct should relate to the proof of some item or some fact, and where the origin of the claim is not in

-fraudulent act-effect.

equitable a fraudulent act in relation to it will not bar relief. Goodwin v. Hunt, 3 Yerg, 124; 1 Pom. Eq. Jur. § 399; Chicago V. Union Stock Yards & Transit Co. 164 Ill. 224, 35 L.R.A. 281, 45 N. E. 430; 10 R. C. L. 140. The ground upon which it is claimed, in this case, that the complainant could not have equity is that she had fabricated evidence. The claim is that twelve letters, purporting to have been written by Erastus A. Barnes, were forgeries. There were a large number of other letters tending to show the relation of the parties and there is no finding in the decree as to the alleged forgeries. But assuming that the court found the letters to be forgeries, such a fraudulent act as to items or portions of the account would not bar relief as to other items or claims, but would be proper for consideration in stating the account under the established rules of law appli

Accountingequity-unclean hands-forged evidence.

cable in such cases.

The court erred in dismissing the bill for want of equity. The appellate court did not err in reversing the decree and remanding the cause for the taking of the account.

The right to an accounting having

been determined, the account is of such a nature that the statement of it must be referred to a master in chancery. Where the items in an account are few, the court may state the account; but where the account consists of many items, covering a great length of time,

to master.

and the testimony reference
is conflicting, the

court cannot proceed to an accounting until the account has been stated by a master, and objections to the account settled by him. The duties of the court, the public interest, and the rights of litigants forbid the examination by the court of intricate and complex accounts. Brockman v. Aulger, 12 Ill. 277; Sallee v. Morgan, 67 Ill. 376; Payne v. Newcombe, 100 Ill. 611, 39 Am. Rep. 69; Beale v. Beale, 116 Ill. 292, 5 N. E. 540. A complicated account cannot be stated by the court even by agreement of the parties. Riner v. Touslee, 62 Ill. 266; Mosier v. Norton, 83 Ill. 519; French v. Gibbs, 105 Ill. 523. This case, in which the court heard a vast amount of evidence and considered a record of over 10,000 pages, illustrates the importance and necessity of adherence to the settled rule of chancery practice. Upon the reinstatement of the case in the circuit court, the cause is to be referred to a master in chancery to state the account upon the evidence already in the record and any further evidence the parties may desire to offer.

The appellate court ordered the costs of the appeal to that court to be taxed, one half to the complainant and one half to the defendant as administratrix, to be paid in due course of administration, and that order is assigned as error. Section 22 of the Cost Act provides that if a judgment is reversed on appeal or error the complainant or plaintiff in error shall recover costs, and it is only where a judgment or decree shall be reversed in part and affirmed in part that costs may be apportioned between the parties under § 24. There is no cause for com

(282 Ill. 593, 118 N. E. 1004.)

plaint that only half of the costs were taxed to the defendant, and, the suit being to recover from the estate, it was proper to order the costs paid in due course of administration.

The judgment of the Appellate Court is affirmed.

Petition for rehearing denied, April 3, 1918.


The maxim that he who comes into

equity must come with clean hands is held in the reported case (BARNES v. BARNES, ante, 4) to be limited in its application to cases where the inequitable conduct of the complainant goes to the substance of the cause of action which he seeks to enforce. It is, therefore, held that the fabrication of evidence in support of some items of a claim will not justify a denial of relief as to other items. The scope and application of the maxim thus construed are fully discussed in the note following LANGLEY V. DEVLIN, post, 44.

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(190 Mich. 478, 157 N. W. 282.)

Cloud on title bill to quiet -clean hands.

1. One securing a deed to real estate through fraud is not prevented from quieting his title against a subsequent grantee from the common grantor, by the maxim that "he who comes into equity must come with clean hands."

[See note on this question beginning on page 44.]

Assignment action for fraud.

2. A right of action for fraud is personal and not assignable.

[See 2 R. C. L. 610, 611.] Fraud deed secured by right to set aside.

3. A subsequent grantee with notice cannot set aside a prior deed alleged to have been secured from the common grantor, by fraud, when he was intoxicated.

Incompetent person - deed valid


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to a bona fide purchaser for value before institution of proceedings to set it aside.

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APPEAL by complainant from a decree of the Circuit Court for Baraga County (O'Brien, J.) in Chancery, dismissing a complaint filed to quiet title to certain land. Reversed.

The facts are stated in the opinion of the court.
Messrs. Joseph J. O'Connor and A.
W. MacLeod for appellant.

Mr. A. F. Dixon for appellee.

Steere, J., delivered the opinion of the court:

Complainant filed this bill to remove a cloud from its title to 160 acres of land in Baraga county, alleged to be caused by a subsequent quitclaim deed from its grantor to defendant Fisher, but recorded prior to its own deed.

Defendant, answering, traversed and denied the various allegations of complainant's bill, and alleged by way of cross bill that the deed to said land under which complainant claims title was procured for an inadequate consideration, through false and fraudulent representations, from Eliza Abts, their common grantor, while she was intoxicated, beyond control of her mental faculties, her understanding being clouded and reason dethroned, for which reasons said deed upon which complainant bases its claim of title is void, a cloud upon defendant's title, and a fraud upon his rights; he therefore prays that said warranty deed from said Eliza Abts to complainant, as described in its bill, be set aside, offering to pay all moneys expended by complainant in and about said premises; also praying that complainant be required to make answer to all matters charged by defendant in that particular.

Complainant duly answered defendant's answer "taken as a cross bill," denying its allegations and, amongst other things, saving and reserving all benefit of exception "which can be taken to the many errors and uncertainties and other imperfections in said answer taken as a cross bill contained."

It was shown upon the hearing without dispute that Eliza Abts, who then had a good title in fee, subject to delinquent taxes for some years, to the land in question, conveyed it to complainant by warranty deed

dated February 16, 1904, which deed, however, was not recorded until January 24, 1908, and that she subsequently, on August 1, 1907, quitclaimed the same land to defendant, who recorded his deed August 5, 1907.

Complainant's deed was procured from Mrs. Abts by its representative, named Paquette, who paid her $100 therefor. He first interviewed her upon the subject at a hotel where she was working in Nestoria, and upon the following day went with her to, or met her at, Sidnau, in an adjoining county, where she went to the office of a notary public, and there executed and acknowledged her deed to complainant in the presence of two subscribing wit


The issues of fact to which the testimony taken in the case related were the value of the land, Paquette's representations as to the amount of delinquent taxes upon said land, and other inducements to secure Mrs. Abts's consent to sell, and the extent, if any, she was under the influence of liquor during the negotiations and at the time she executed the deed. The testimony of the respective sides upon these issues was in sharp conflict, and, upon the printed record, could scarcely be said to settle them either way beyond possible misgiving, although with the witnesses before the court the case may have assumed a different aspect.


But the preliminary and more serious question raised and urged in behalf of complainant is whether defendant can avail himself of an alleged fraud practised by complainant's agent upon Mrs. Abts. makes no claim of any fraud practised upon himself, or that he was an innocent purchaser. He testified that Mrs. Abts was a distant relative of his wife, and had, while living with them, told him "how this land was taken from her." That

(190 Mich. 478, 157 N. W. 282.)

he was a traveling man and consulted with several lawyers about it; that Mrs. Abts gave him a deed so he could litigate the matter, and in consideration of the deed he agreed to give her a home and provide for her. He is here complaining of a fraud practised upon Mrs. Abts at a time when he had no interest in this land, and of which he says he was fully advised before he received his quitclaim deed to it.

Assignmentaction for fraud.

The general rule is well established, and has been often recognized by this court in varying language, that a right of action for fraud is personal and not assignable, in part, as follows: "As assignee of the contract, Calkins cannot insist upon the fraud." Carroll v. Potter, Walk. Ch. (Mich.) 355.

"A court of equity will not countenance the assignment of a cause of action for a tort, or to set aside a conveyance, or other act, as fraudulent." Morris v. Morris, 5 Mich. 171.

"The right to sue in equity to have a conveyance set aside for fraud is not assignable" (from syllabus). Brush v. Sweet, 38 Mich. 574.

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"The present complainant-according to his own proofs-has merely purchased claims for the purpose of this litigation, or of some litigation. He was never defrauded. A right to complain of fraud is not assignable, and the claims in controversy have nothing involved which could keep them alive at all unless fraud would do so. Being nothing more than an assignment of" a cause of "action for fraud it is well settled that it will not be enforced." Dickinson v. Seaver, 44 Mich. 624, 7 N. W. 182.

"It has been held repeatedly in this state that equity will not enforce the demands of an assignee of a right to sue for fraud, when the cause of action is confined to that." Dayton v. Fargo, 45 Mich. 153, 7 N. W. 758.

"It is very well settled that an action for fraud is not assignable, and that fraud is only to be complained of by the party injured." Lewis v. Rice, 61 Mich. 97, 27 N. W. 867.

"It is also the settled rule in this state that actions for fraud and deceit are not assignable." Stebbins v. Dean, 82 Mich. 385, 46 N. W. 778.

"If Boughton committed a fraud in selling the lands to Wilson, Luther, & Wilson, an action for that fraud is not assignable.

It is therefore unnecessary to state or discuss what then took place between them." Chase v. Boughton, 93 Mich. 285, 54 N. W. 44.

"It is well settled that the right to complain of a fraud is not assignable." Smith v. Thompson, 94 Mich. 381, 54 N. W. 168.

"If the defendants fraudulently misrepresented the facts to Tillotson, he (Tillotson) might have proceeded against them for their fraud; but his right of action is not assignable, and did not pass to complainant by virtue of the deed from Tillotson to him." Fuller v. Bilz, 161 Mich. 589, 126 N. W. 712.

Fraud-deed secured by


On defendant's theory of the facts, Mrs. Abts's deed to complainant was but voidable, not void, and voidable only at the instance of the party defrauded or right to set under some disability at the time of its execution, as in case of a minor or person otherwise temporarily incompetent. This deed was witnessed, acknowledged, and on its face executed in compliance with all requirements of law. It was prima facie valid. Whether it appear that she executed the instrument, fully understanding the nature of her act, but induced to do so by the fraudulent misrepresentation of Paquette, or that by reason of intoxication her mental faculties were so clouded that she did not fully realize the nature of her act, and was in effect insane, one or both, the deed was but voidable. It is undisputed that when sober she

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