#### ISAAC SHERNER, et als. v. AQUILLA SPEAR, et als.

Fraud — Par Delictum.

1. Where the jury found that the defendant administrator had, in another action in which he was plaintiff, fraudulently suffered a judgment to be entered, by which the estate of his intestate was cheated; it was held, that a motion would not be allowed to reinstate said action and set aside fraudulent judgment.

2. Courts of justice will not aid a party to a fraudulent transaction to force his confederates in fraud to account.

(Turner v. Eford, 5 Jones Eq., 106; Pinckston v. Brown, 3 Jones Eq., 494, cited and approved).

This was a civil action tried before Gilmer, Judge, and a jury, at Spring Term, 1884, of Yadkin Superior Court.

The defendants appealed.

The facts appear in the opinion.

Messrs. Watson & Glenn and Clement & Gaither, for plaintiffs.

Messrs. Coice & Williamson, for defendants.

*149MerrijioN, J.

The plaintiffs are the next of kin of John Williams, who died intestate, in the county of Yadkin, in 1863. W. W. Long was duly appointed his administrator, and W. J. Cornelius and S. T. Spear were the sureties to his bond as such .administrator.

Afterwards, W. W. Long, the administrator, died without having completed the administration of the estate in his hands, .and Aquilla Spear was duly appointed, in 1875, administrator de bonis non of the estate of John Williams, deceased, and gave his bond in that respect with Janies Spear and others as sureties thereto.

Afterwards, Aquilla Spear, administrator de bonis non, brought his action in the Superior Court of Yadkin county against T. Long, administrator of W. W. Long, above named, and the sureties to his bond as administrator of John Williams. In that .action he alleged in his complaint that W. W. Long, as administrator, in his life-time, and the sureties to his bond, were liable to •account to him for a note belonging to the estate of his intestate against Thomas Williams; likewise for another note against Uriah Glenn, and he demanded judgment for an account and .settlement of the estate of his intestate in -the hands of W. W. Long, administrator. This action was determined at the Fall Term of 1878 of the court mentioned, and the plaintiff obtained a judgment for the sum of $29.52.

The plaintiffs in their complaint allege that judgment ought to have been obtained in that action for a much larger sum, and would have been but for the fraud and collusion of the plaintiff therein, Aquilla Spear, administrator de bonis non, and the defendants therein, T. Long, administrator of W. W. Long, and W. J. Cornelius, surety to the administration boud of W. W. Long. They allege that the judgment obtained was procured by the fraudulent concert of the plaintiffs and the defendants in the action; and they demand judgment, that the judgment mentioned above be declared fraudulent and void, and for an account and settlement of the estate in the hands of Aquilla Spear, *150administrator de bonis non of John ,"Williams, deceased, and of" the estate of John Williams, deceased, remaining in the hands of' T. Long, administrator of W. W. Long, administrator of John. Williams, and judgment against the parties defendant according-to their several liabilities, including W. J. Cornelius, surety tO’ the bond of W. W. Long, administrator.

The court submitted to the jury the following issue, to which they responded in the affirmative: “Was the judgment rendered by his Honor, J. F. Graves, at Pall Term, 1878, of the Superior Court of Yadkin county, in the suit there pending in said court in which A. Spear, administrator de bonis non of John Williams,, deceased, was plaintiff, W. J. Cornelius and T. Long, administrators of W. W. Long, deceased, were defendants, procured by the fraudulent agreement, contrivance or collusion of the plaintiffs in said suit and the defendants, or either of them?”

The court intimated upon receiving the verdict of the jury that he would render judgment for the plaintiffs according to the prayer in the complaint. Thereupon the defendant Aquilla Spearj administrator de bonis non, moved that he be allowed to' bring forward and reinstate uj>on the docket the action mentioned in the issue submitted to the jury, and for an order directing an account of the administration of the estate of his intestate in the hands of W. W. Long, administrator of John Williams,, his intestate, and for judgment for such sum as might be ascertained to be due to him from the former administrator of his intestate. The court denied the motion, and the defendant Aquilla Spear excepted.

The court very properly denied the motion of the appellant. The action, he proposed to bring forward upon the docket, re-open and try, had been determined, and if it had been a fair and honest one, the judgment in it could not be disturbed, except for just cause and in a proper way at the instance of some person entitled to move in, or in respect to it. If the judgment in it were dishonest and fraudulent, as it appears to have been, then, innocent parties aggrieved by it, as the plaintiffs in this action, might by *151a proper action have it declared and adjudged fraudulent and void, and then it would reniaiu a dishonored and useless wreck,, and harmless except as to the parties participating in the fraud.

Moreover, it was not germane to, and had no proper bearing upon the conduct and determination of this action; it was distinct from, and foreign to the latter, except that the fraudulent judgment in it may have created occasion for, and given rise to the present one.

Besides, the jury have found by their verdict that the appellant, who was plaintiff in the action referred to, participated actively with the defendants therein in the collusion and fraud, by which the dishonest judgment was obtained. The court will not help him now to turn upon his confederates in fraud and call them to account and thus extricate himself from embarrassments he brought upon himself. The laAv will not aid one of the parties to a fraud as against another; it leaves them all, each towards the other, in that plight and condition they devised and contrived for themselves.

The appellant having destroyed the integrity of his action, must accept the judgment therein with all its badness and its ill consequences to himself. In pari delicto, potior est conditio defendentis. Turner v. Eford, 5 Jones Eq., 106; Pinckston v. Brown, 8 Jones Eq., 494.

There is no error in the refusal of the court to grant the motion of the appellant. Let this opinion be certified to the Superior Court according to law.

No error. Affirmed.