The plaintiff conveyed to the defendant certain real estate, taking back from him a bond with a penalty for a reconveyance of the same upon demand. The bill is brought to secure a reconveyance according to the terms of the bond. If the
transaction were voidable as to creditors, it was valid between the parties unless in fact made with a fraudulent intent. Hall v. Hall, 70 N.H. 47; Esty v. Long, 41 N.H. 103. Unless defeated on the ground of the illegality of the contract sought to be enforced, the plaintiff is entitled to a reconveyance according to the terms of the bond. Ewins v. Gordon,49 N.H. 444, 457. Where the parties to an executed illegal contract are equally in fault, the law leaves them where they have placed themselves, and will not interfere for the recovery of money paid, or lands or goods delivered, under such a contract. 1 Sto. Eq. Jur., s. 298; Edgerly v. Hale,71 N.H. 138; M. L. Railroad v. Railroad, 66 N.H. 100, 131; Leach v. Tilton, 40 N.H. 473. "The fraudulent grantor himself cannot elect to set the conveyance aside, nor enforce a secret trust for his own benefit. . . . The principle, indeed, is one of common law, which makes that which is fraudulent in fact void; but whose maxim in all cases of confederate fraud is, in pari delicto melior est conditio defendentis." Bisp. Eq., s. 248.
The defendant demurs upon the ground that the allegations of the bill disclose a fraudulent purpose and intent on the part of the plaintiff. Between the parties to this suit, the question of fraud is solely one of fact. It is not to be inferred as a presumption of law from a secret trust or a want of consideration, as it would be in a controversy between the grantee and creditors of the grantor who had seized the property. Thompson v. Esty, 69 N.H. 55, 70, 71; Stratton v. Putney, 63 N.H. 577; Gove v. Campbell, 62 N.H. 401; Leach v. Tilton, 40 N.H. 473. The bill does not admit the existence of the alleged fraudulent intent. Fraud is not to be presumed; it must be clearly established by proof; or at least be manifestly indicated by the circumstances. Jones v. Emery, 40 N.H. 348. The plaintiff's purpose may have been to secure funds to conduct the litigation and to pay the probable judgment against her. She may have been deceived or badly advised as to her proper course, and may in fact have done what she did in entire good faith, although she made the conveyance on account of the litigation and to protect herself in the matter of alimony. Whether she acted with an honest purpose, or with an unlawful one to obstruct the course of justice and defeat the collection of any judgment against her, are questions of fact. The fact that the agreement to reconvey was not kept secret, but was recorded, leaving her interest in the real estate open to seizure upon execution (P. S., c. 220, s. 7; Low v. Carter, 21 N.H. 433,435), is an evidentiary fact tending to show that her purpose was not to defraud creditors. The allegations of the bill do not necessarily conclude the plaintiff upon the question of her good faith. As her bad faith is not admitted, it cannot be inferred as matter
of law. What inference of fact should be made upon the facts alleged is immaterial. Until the fact is admitted or found against the plaintiff, her right to maintain the bill is not determinable as matter of law. Other questions discussed can more profitably be considered when the facts are found. The demurrer should have been overruled.
Exception sustained.
CHASE, J., was absent: the others concurred.