Sullivan v. Bailey , 21 App. D.C. 100 ( 1903 )

Mr. Justice Morris

delivered the opinion, of the Court:

The questions raised are: (1) Whether the trustee could ■advertise the property for sale before taking possession of it, which it is claimed the deed of trust required as a condition precedent to any sale; (2) Whether the trustee could sell under the deed the stock in trade as existing at the time ■of the proposed sale, when such stock in trade was different from that in existence at the time of the execution of the deed or at the time of default made; (3) Whether the appellant’s liquor license could validly be made the subject ■of conveyance under a deed of trust; (I) Whether the deed of trust is such as could be enforced.

1. With reference to the first question, it is very plain that the appellant’s objection to the proceeding of the trustee is wholly untenable. Whether the provision in the deed of trust which requires, upon the default of the grantor, that the trustee, at the request of the parties secured, should proceed to take possession of the mortgaged property, is a condition precedent or not, is wholly immaterial in the present case. The appellant is in possession of the property. It is competent for him to deliver that possession to the trustee; and it does not lie in his mouth to allege the objection, when he himself may remove the difficulty. If his bill means that the trustee should malee demand for the property, and the appellant be left free to refuse compliance with the demand, and thereupon the trustee be compelled to have recourse to his action of replevin, this would amount to an appeal to a court of equity to be permitted to take advantage of his own wrong. A court of equity will not regard any such position with favor. Moreover, it would seem as if the postponement of possession had been for the accommodation and benefit of the appellant and by some understanding with his counsel.

2. In the second place, it is objected by the appellant that the stock in trade sought to be sold is different from that which is covered by the deed of trust. We think that here .again the appellant is estopped from alleging his own wrong as a ground for relief in equity. The deed of trust does not in express terms cover any after-acquired property, but it was plainly intended to cover all the stock in trade that was in existence at the time of default made, and the appellee in his answer disclaims any intention to hold or claim a lien beyond this. If, after default made, the appellant sold any of the stock in trade to the detriment of the parties secured by the deed, he should not be heard to allege the fact as a ground for restraint of the execution of the trust, unless he offered to make good the amount disposed of by him. This is the plain dictate of equity: He that seeks equity must do equity.

3. The question whether a license to sell liquor under the laws of the District of Columbia can be made the subject of conveyance in or by a deed of trust, is one which likewise should be disposed of in this case by the application of the doctrine of estoppel, without reference to the question whether in general such a license is the subject of bargain and sale, or is merely a personal privilege incapable of being transferred. As matter of fact, it appears that these liquor licenses are transferable in this District under certain limitations; that they are the subject of bargain and sale, and that they have value — sometimes very considerable value. In an affidavit filed in support of the answer in this case, and which it is proper to consider — for, although it was not filed on the same day as the answer, there is no rule of court and no requirement of law that an affidavit in support of an answer should be filed at the same precise time as the answer, provided it is filed in due time thereafter — it is averred that the appellant’s license is of the value of $3,000; and the answer avers that this license, and not the stock in trade and other property mentioned in the deed of trust, was the main inducement for the credit that was given to the appellant. The appellant by his deed alleged that the license was a thing of value; and by his deed he procured credit on the faith of it. He cannot now be heard to deny the tenor of his deed in that regard. He cannot be heard to invoke the assistance of a court of equity to invalidate the deed, or any substantial provision of tbe deed, without an offer to restore to the parties secured by the deed the money with which he induced them to part on the faith of his security.

This case is one wherein clearly the doctrine must apply that he who seeks equity must do equity. The appellant seeks to invalidate his deed, or so to emasculate it as to render it worthless, and notwithstanding that he has received from the parties who supposed, and were induced by him to believe, that they had the security of this deed for a very considerable sum of money, he does not offer to return the money, or any part of it, or in any manner to secure or reimburse them. Under such circumstances he is not entitled to any assistance from a court of equity.

We think that the order appealed from was right, and that it should be affirmed, with costs. And it is so ordered.

A motion for a rehearing, made on behalf of the appellant February 6, 1903, was overruled February 11, 1903.