Phelan v. Phelan ( 1956 )

Avery, Presiding Judge

(concurring).

In clarification of my position with respect to the rights of the parties in this cause, I am of the opinion that there are at least two maxims of equity, either of which would prevent a court of equity from granting the relief sought by the defendant’s efforts to set off the claim of complainant. These maxims are:

“He who seeks equity must do equity”

and

“He who comes into equity must come with clean hands”.

“Am I my brother’s keeper?” is a question that has been asked and answered from the earliest days of man’s creation.

The parties to this litigation are brothers. They may have become estranged to each other so far as conversing with each other is concerned, but that estrangement grows out of the very situation involved in this litigation, and to such an extent that a person, supposedly a friend to each but who did not testify for either, made an effort to bring about a settlement between these parties which ripened into what complainant evidently thought was a settlement of all existing matters between them and which the defendant, by his positive statement and acts, understood to be the thought of his brother, the plaintiff; and so understanding, he did two things which, to my mind, would repel him from a court of equity.

(1) Knowing that his brother, the plaintiff, so understood the situation, he purposely refrained from mentioning the note and check which he insists he was entitled to set off against the claim of his brother. As shown in the foregoing opinion, he admitted that he did not mention it because he was afraid that his brother would not complete the transaction involved in this very litigation if he did mention it. With knowledge of the fact that his brother, the plaintiff, understood that it was a complete transaction of all matters between them, he could not, in good conscience and equity, remain silent and thereby lead his brother to agree to a settlement, knowing that he himself was concealing, or at least refusing to reveal, that which in good conscience required him to reveal.

(2) He had written into the note which he signed and gave to his brother a statement which made that note non-negotiable, all of which was done for the purpose of obtaining a benefit for himself from his brother which he understood that his brother had considered settled at the time that defendant paid the complainant over $4,000 in cash and executed his non-negotiable note for the remainder of the consideration evidencing the settlement.

“He who seeks equity must do equity” is applicable in cases of an affirmative equitable defense. Mr. Pomeroy in his work on Equity, 5th Ed., Volume 2, Sec. 393e, with respect to this maxim, says:

“It is'held that the principle applies to a defendant who sets up an affirmative equitable defense claiming some affirmative relief, since he is then in exactly the same position as a plaintiff. This must be the true limitation of the principle in its application to defendant; it certainly does not and cannot apply to defendants ge .lerally, who merely seek to defeat the plaintiff’s demand, and ask no affirmative relief for themselves, either directly or indirectly.”

The doctrine of “clean hands”, so says Mr. Pomeroy, at page 91, Sec. 397 of Volume 2,

<i* # * assumes that the suitor asking the aid of a court of equity has himself been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and therefore refuses him all recog-, nition and relief with reference to the subject-matter or transaction in question. It says that whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy. ’ ’

Again, in Section 399, pp. 94-95, Mr. Pomeroy says:

“The maxim, considered as a general rule controlling the administration of equitable relief in particular controversies, is confined to misconduct in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties, and arising out of the transaction; it does not extend to any misconduct, however gross, which is unconnected with the matter in litigation, and with which the opposite party has no concern. When a court of equity is appealed to for relief it will not go outside of the subject matter of the controversy, and make its interference to depend upon the character and conduct of the moving party in no way affecting the equitable right which he asserts against the defendant, or the relief which he demands.”

Certainly this record reveals that the complainant has been injured by the purposed, understood and perpetrated silence of the defendant, together with the nonnegotiable clanse written into the note executed by him to the complainant, all of which was involved in the very transaction between these two parties. Thus, it would seem to me that a court of equity will not remove the shadow of inequitable conduct or the soiled hands of misconduct to grant relief to him whom a court of equity can see is guilty of such inequitable misconduct. However good may have been the motive of the defendant when he made improvements to the property which belonged to him and his brother and others as tenants in common, he cannot rely upon his good motives in that regard to justify his inequitable motives which compelled him to act in a way expressed from his own lips as revealed by this record.