tract, 1,500 acres in Braxton and Nicholas counties, known as the W. L. J. Corley, P. B. Adams, and H. A. Holt tracts, and two other tracts, one of 108 and the other 140 acres, both in Nicholas county, and known, respectively, as the John S. and James W. Canfield tracts, and also denied him credit for $1,060 for which he held a receipt signed by J. S. Hyer, which stated that it was to be a credit upon a note for $3,530, which Corley had executed to said Hyer. This decree was not made on the pleadings alone, but it recites that the case was heard upon former orders and decrees, depositions, and exhibits filed.

From that decree Corley has appealed, assigning as error the refusal of the court to grant him any relief in respect to his interest in the tracts of land above mentioned, and denying him credit for the $1,060 paid to said J. S. Hyer in his lifetime.

to said J. S. Hyer by apparently absolute, 331131460 acres in Nicholas county, called deeds, but that the defendant A. W. Cor- the Albert Pierson land, 150 acres in ley claimed an equitable interest therein, | Nicholas county, called the W. N. Wilson and plaintiff did not know whether or not his claim was just, and desired the court to ascertain and determine that matter. J. S. Hyer died July 7, 1903, and the bill was filed at October rules, 1904. The following January, A. W. Corley filed his answer in the nature of a cross bill, averring that he was an equal joint owner with said Hyer in a number of tracts of land to which the later held the legal title upon secret trust, exhibiting contracts in writing, signed by the latter, evidencing sale by him to Corley of such interest, and also, in most instances, acknowledging payment in full of the consideration therefor, and agreeing to execute deeds to him for his interest when demanded. No deeds appear ever to have been executed. Some of the lands alleged to have been so held in trust were sold by Hyer, and he accounted to Corley for a part, if not all, of his share of the proceeds. The arrangement between them appears to have been in the nature of a partnership for the purpose of speculating in lands; in fact, Corley so alleges in his cross bill. Plaintiff and two of the Hyer heirs filed special replications and answers to the cross bill, averring that a number of the tracts of land in which said Corley claimed an equitable interest were purchased by said Hyer in pursuance of a collusive and fraudulent arrangement between himself and said Corley, the latter acting as executor of W. L. J. Corley, deceased, whose estate the lands were, or as a commissioner of court, or in both capacities, in making sales thereof to said J. S. Hyer, deceased, and at the same time being secretly interested in the purchases, and averring that such transactions are fraudulent and contrary to public policy. To the answers Corley filed exceptions, and also demurred. On the 18th day of March, 1909, the court sustained his demurrer and exceptions on the ground, stated in the order, that neither party to a fraudulent transaction should be permitted to plead it, and held that the contracts set up in the cross bill appeared to be valid and binding between the parties to them. But on the 26th of December, 1913, plaintiff and the Hyer heirs moved the court to set aside its order of March 18, 1909, and reconsider its former ruling on the demurrer and exceptions taken to their special replications and answers. The motion was taken under advisement until August 10, 1915, when the court set aside the former order, overruled the demurrer and exceptions, and entered a final decree denying Corley any relief in respect to five certain tracts of land, or the proceeds thereof, described as a tract of

The above-mentioned tracts of land were all carved out of a tract of 3,066 acres formerly owned by W. L. J. Corley, P. B. Adams, and H. A. Holt, who had sold the smaller tracts, in the lifetime of W. L. J. Corley, to Albert Pierson, William Wilson, and the two Canfields. All the purchase money for these small tracts had not been paid at the death of W. L. J. Corley, and after A. W. Corley had qualified as his executor, he brought suits in his representative capacity against the several purchasers to enforce liens for the purchase money. In every case the land was sold under a decree of the court, J. S. Hyer becoming the ostensible purchaser. Shortly after each of his said purchases, sometimes within two or three months, and sometimes longer, said Hyer executed to A. W. Corley writings signed by himself, stating that he had sold an undivided half, or other interest, as the case might be, in the particular tract to him, and stating, also, in nearly every instance, that Corley had paid him in full for such interest. In one or two instances such writing bears date after the time when Hyer had sold most of the tract to some third person, thus indicating a recognition of Corley's interest as existing at the time of the purchase. In making the sales to Hyer Corley not only represented the estate of W. L. J. Corley, deceased, but acted as commissioner of the court, either singly or jointly with another. That Hyer and Corley were jointly interested in all of the aforesaid purchases sufficiently appears from the pleadings and documentary evidence, especially respecting the 1,500-acre tract. It was sold privately, by written contract dated the 26th of May, 1892, signed by

trust relation from acting in the dual capacity of seller and purchaser. Neither a trustee, personal representative, nor a com missioner of court can lawfully buy, either directly or indirectly, at his own sale or a sale procured at his instance of property intrusted to him. Bailey v. Robinson, 1 Gratt. 4, 42 Am. Dec. 540, and Howery v. Helms, 20 Gratt. 1. "A fiduciary cannot make a valid purchase of the trust property, though it be made at a public judicial sale under a decree made in an adverse proceeding." Newcomb v. Brooks, 16 W. Va. 32.

The rule is not limited to trustees and fiduciaries in a purely technical sense, but, as Judge Green says in his opinion, in the case last cited (16 W. Va. at page 62): "The rule embraces every relation in which there may arise a conflict between the duty which the purchaser owes the person with whom he is dealing and his own individual interest."

Adams, Holt, and A. W. Corley, executor of W. L. J. Corley, deceased, and also by J. S. Hyer. The tract was then supposed to contain 1,300 acres, and the price Hyer had agreed to pay was $2 per acre. The contract recites that $3,000 in cash was paid, $1,000 of it to each of the three vendors, who were equal joint owners. On the back of the contract is a writing, proven to be in the handwriting of Corley, signed by J. S. Hyer in his own proper hand, bearing date on the next day, May 27, 1892, which states that said Hyer had sold an undivided half interest in the tract to A. W. Corley, and that Corley had paid him $1,500 in cash, and was to pay him one half the remainder of the purchase price of the tract when Hyer himself had paid the vendors. The original contract stipulated that Hyer | was to pay the balance of the purchase price of $2 per acre, as soon as the quantity of land could be ascertained and a deed made. For some unexplained reason Corley's duty to the estate he represented Hyer executed to Corley under date of Sep-was to get all out of the land he could, but tember 24, 1892, another writing selling the natural inclination of a purchaser is to him the same interest in the same tract buy as cheaply as he can. Between duty of land, acknowledging payment therefor in to another and personal interest there arises full, stating that the tract contained 1,500 an irreconcilable conflict of motives. Hence, acres, and agreeing to execute to Corley a recognizing human frailty in all matters indeed for his one half without warranty volving self-interest, the rules of law are whenever he should demand it. Hyer also wisely framed to avoid any temptation to a expressly reserved the right to sell at the fiduciary to depart from his line of duty price of $50 the one third of 75 acres which by denying him the opportunity of making was not included in his deed, which he de- profit for himself. The rule is founded on scribed as the land on which Martin Mollo-public policy, and, contrary to most legal han lives, and promised, in consideration rules, is apparently without any exceptions. thereof, to pay Corley $25, with interest To say that the party forbidden by it to thereon "from the 26th day of May, 1892." buy purchased fairly and paid full value Why this reservation of right to sell land for the property, even more than others who which had not been conveyed, and agreement were present bidding on it were willing to to divide the price with Corley, and why the pay, does not excuse the violation. The agreement to pay him interest from the very rule is absolute, and the law looks not to day on which Hyer became the purchaser, the consequences when it is violated, but the if he and Corley were not joint purchasers? courts will refuse to confirm the sale. The When A. W. Corley entered into this trans- court would not have confirmed the sales action he was representing the estate of his in the present case if it had appeared that testator in the one undivided third of the Corley had a secret interest in Hyer's pur land, and when he emerged from it he chase. claimed to be the secret owner of the un- That such sales are only voidable at the divided half. The documentary evidence election of the party affected, and not absofully proves, we think, that J. S. Hyer, de-lutely void, is no reply to plaintiff's answer ceased, and A. W. Corley were jointly into Corley's cross bill. This is not a suit terested in the purchases made by the former in all the aforementioned tracts of land.

to set aside the sale, but a suit by Corley to compel performance of an unlawful contract made between himself and Hyer in his By his cross bill Corley seeks to es- lifetime. Hyer died before it had been fully tablish his secret equity in the lands against performed, and now Corley is asking the Hyer's estate, and by their answers there- aid of a court of equity to complete its perto his administrator and heirs at law de- formance. He says Hyer died holding the fend by setting up an unlawful contract or legal title upon a secret trust for both of arrangement between the intestate and said them, and Hyer's representative does not Corley whereby their respective interests | deny it, but replies that it was so held in had been acquired. Public policy forbids | pursuance of an unlawful arrangement, and one who is acting in a representative or says the parties should be left where they

tion that the consideration of the contract was immoral or illegal to be made even by the guilty party to the contract; for the allowance is not for the sake of the party who raises the objection, but is granted on general principles of policy." 2 Kent, Com. 14th ed. 466; Broom, Legal Maxims, 8th

doors of the court will be shut against him in limine. Pomeroy, in his Equity Jurisprudence, § 401, says: "The maxim is more frequently invoked in cases upon fraudulent contracts." It embraces, however, all kinds of illegal contracts. The present case is founded upon a contract just as obnoxious as a fraudulent conveyance of one's prop-ed. 577; Standard Lumber Co. v. Butler Ice erty to avoid payment of his debts. In the administration of civil justice courts do not recognize any grades or degrees in fraud. The violation of a rule founded on public policy is as much a fraud in law as if the rule had been enacted by the legislature.

Co. 7 L.R.A. (N.S.) 467, and cases in note (76 C. C. A. 639, 146 Fed. 359); and Lanham v. Meadows, 72 W. Va. 610, 47 L.R.A. (N.S.) 592, 78 S. E. 750.

The maxim, "In pari delicto potior est conditio defendentis," results from the en

pose or design to assist the defendant. He simply happens to be in a more fortunate position because he is the party sued, and not the suitor.

A leading case in this state on the ques-forcement of the rule, and not from any purtion here under consideration is Horn v. Star Foundry Co. 23 W. Va. 522. Judge Green there reviews many of the earlier Virginia cases in point, and finds them to be in harmony with his own view of the law. He approves the decisions in Starke v. Littlepage, 4 Rand. (Va.) 368, and Harris v. Harris, 23 Gratt. 737, two cases cited and relied on by counsel for appellant. In both those cases the plaintiff was allowed to recover, which would seem to be exceptions to the rule. But if we bear in mind that the purpose of the rule is to protect society against illegal contracts by refusing relief to any party to such contract who asks it, we will readily perceive that the decisions in those cases were not exceptions to, but in harmony with, the rule. To have refused relief to the plaintiff in either of those cases would have been equivalent to granting relief to the defendant against his fraudulent contract, whereas a recovery by plaintiff had the effect to leave the parties in the position in which their unlawful contract had placed them. So that those cases and others like them are no exceptions to the rule. The difference is only apparent, not real. Says Judge J. W. Green in Starke v. Littlepage, 4 Rand. at page 372: "If it be necessary, in order to discountenance such transactions, to enforce such a contract at law, or to relieve against it in equity, it will be done, though both the parties are in pari delicto."

The decree appealed from denied Corley credit for $1,060, for which he holds Hyer's receipt. In that respect the court erred. As to that item the court misapplied the rule, and, in effect, granted relief pro tanto to Hyer's estate. The receipt represented a closed transaction; it was for money paid to Hyer, or retained by him in pursuance of the fraudulent contract, and to deny Corley credit therefor would be equivalent to allowing Hyer's estate to recover back money which he had paid on the illegal contract. It would not be leaving his estate in the situation in which he had placed it, but would be changing it for the better. Denial of credit to Corley relieved Hyer's estate from a part of the illegal contract which had been fully executed. Hyer's administrator can no more recover from Corley than Corley can recover from Hyer's estate. The receipt is for a portion of Corley's share of the cash payment received by Hyer from the sale of a 2,000-acre tract of land, a half interest in which was originally owned by W. L. J. Corley, deceased, and which A. W. Corley, as his executor, sold to Hyer, Corley thereby acquiring a one-third interest in it. Later Hyer sold the whole tract to a third person at $20 an acre, received a cash payment of $6,720, and settled with Corley for his share thereof, in part by his check to Corley for $593, in part by depositing in bank to his credit $250, and the balance by executing his receipt for $1,060. The receipt states that it is a payment on a note for $3,530, which Corley owed to Hyer as guardian for Fannie May Corley. The money should have been applied as per the receipt.

To grant the prayer of Corley's cross bill in the present case would be to assist to carry out the original illegal contract; whereas by denying him relief, the court stamps its condemnation upon it and discourages the making of such contracts in the future. That either party to a fraudulent contract may allege and prove the fraud in defense of a suit brought upon it by the other is well established. This is In so far as the decree appealed from deallowed even though the plaintiff has estab-nies appellant credit for the $1,060, it will lished a prima facie case entitling him to re- be reversed, and in all other respects it will lief. "Courts of justice will allow the objec- be affirmed, with costs to appellant.

Annotation-Right of executor or administrator to purchase at his own

sale.