There were several issues submitted to the jury, the first and third of which were those only upon which instructions were asked. The first, “Is the plaintiff the owner of the land in fee simple?” and the third, “ Was the conveyance from defendant to plaintiff executed and delivered as a mortgage?”
The defendant asked His Honor to charge the jury in the first instruction as prayed for, “that if the jury shall find that plaintiff and defendant sustained the relation of attorney and client at the delivery of the deed in 1868, and that *289the deed was procured by the suggestion and imposition of plaintiff, the parties do not stand in pari delicto and plaintiff, cannot recover, and the first issue should be found in the negative.” And upon the third issue the instruction prayed for was “ that if the jury should find that the deed of 1868' was intended as a mortgage, and that the sum of one hundred dollars has been paid, the plaintiff cannot recover.”
His Honor very properly declined to give the instructions. He could not give that asked in the first, because-the deed made by the defendant to the plaintiff did vest" the legal title to the land in the plaintiff in fee simple. Nor in. the view we take of the case could he have given the second instruction, for if the intent of the parties in making the deed of December, 1868, was to defraud the creditors of the defendant, it would make no difference whether the deed was intended as a mortgage or an absolute conveyance’. The plaintiff has the legal title’and has the right to recover in,this action, unless the defendant can set up a sufficient defence at law or in equity to debar his recovery.
The defendant insists that plaintiff ought not to recover-because he was- his attorney and advised him to go into-bankruptcy and offered to advance the money to defray the expenses for him, if he would give him a mortgage on his, land ; that he did give him a .deed for the land in controversy to secure to the plaintiff the sum of one hundred dollars ; that plaintiff imposed on him and wrote a deed conveying the property absolutely to him, when it was only to have been a mortgage to secure the $100. And Goodwin,, the subscribing witness to the deed, stated in his deposition that the deed was executed at the suggestion of plaintiff to-secure him in the advancement he agreed to make for him in obtaining his discharge in bankruptcy, and that upon the payment of the $100 he would reconvey the land to him, telling the defendant at the same time “that he had. more land than he could carry through bankruptcy, and. *290by that arrangement he might have a home when he got through.”
We think it is evident from the' testimony of the witness, 'Goodwin, and of the defendant himself, that the defendant knew what he was about, and that it was a plan entered into by both parties and understood by them to cheat and defraud the creditors of the defendant. Whether the plaintiff ■at the time of receiving the deed contemplated taking advantage of • the form of the deed, it is needless to inquire. He may not have formed the purpose of defrauding the defendant until some time after its execution. But he suggested the fraud to defendant, and they conspired together to cheat and defraud his creditors. They are in pari delicto, and this court in the exercise of its equitable jurisdiction ■cannot interfere to give relief. Pinkston v. Brown, 3 Jones Eq., 494; Vick v. Flowers, 1 Mur., 321; Ibid., 323; Ellington v. Currie, 5 Ire. Eq., 21.
We regret that we feel constrained to announce this decision, but we.have to administer the law as we find it; and while we decide this case in behalf of the plaintiff, we cannot refrain from expressing our most unqualified condemnation of the part he has acted in this dishonorable trans.action. We feel compelled to say that there is no error in the ruling of the court below. Let this be. certified, &c.
No error. ' Affirmed.