#### NANCY PINCKSTON *against*MOSES BROWN, *Adm’r., and*JOHN CAUBLE.

Whore persons aro *in pari delicto*in the commission of an illegal act,, and one gets an advantage of the other, equity will not interfere to relieve; but where they are not equally in fault, as where one is old, ignorant, depend-ant and unduly influenced bjr the other, equity will afford relief against hardship and imposition growing out of the illegal transaction.

Cause removed from the Court of Equity of Rowan.

The plaintiff was, at the time of the occurrences herein stated, an aged, infirm and ignorant woman ; she had lived in the same family with her son Meshach, the defendant’s intestate, for several years, and on account of her frail condition, mentaiy as well as physically, for she had just before had a stroke of paralysis, she entrusted the entire control and management of her business to him. Her hands worked the plantation with him, aud all the profits and surplus realised from the crops, after paying the store-bills and other expenses, were retained by him, without rendering any account to her. The said Meshach was her oldest child, and the only one of age; she had the most implicit confidence in his business capacity and integrity. The plaintiff owed one James "W. Clark, as assignee, two notes, amounting together to about one hundred and fifty dollars, ($150) and some few debts besides, but she had abundant means, ultimately, to pay them all, but no pre-sont funds to do so. AVlien slie was informed by her son Meshach, that Mr. Clark had purchased her notes, she was very much alarmed and agitated; she appealed to him to devise some plan, or furnish her with some means, to save her from the ruin that the urgent collection of these notes would bring on her. The plan he devised for that purpose was, to have a deed of trust made of all her property, securing the payment of all her other debts, leaving out Clark, and as the property was greatly more valuable than these debts amounted to, he proposed that she should make fictitious debts to be secured in the said deed. This was his plan, and she, knowing nothing about business, and yielding every thing implicitly to him, gave in *495to it, and did make three several notes payable to him, one for $200, duo 1st January, 1849, one of $150, due 1st January, 1850, and one for $50, due 2nd-, 1849, which were entirely without consideration, and made for the sole purpose of carrying out the scheme which the said Meshach had devised to extricate her. In furtherance of this plan, she made a deed of trust to the defendant John Oanble, to secure these notes, which are set forth therein, and all the debts which she actually owed. This deed conveys her dower in the land on which she lived, a negro woman, all her corn, bacon, oats, hay, house-hold and kitchen furniture, horses, cattle, and stock of every kind, and everything else that she owned. Shortly after this was done, she became aware of the nature of the 'transaction and sought to got rid of it. She paid all the other debts mentioned in the deed, and then demanded that he should surrender it as well as the notes. This he failed to do, putting her off with various pretexts until his death, which took place in-. The defendant Brown administered on his estate, and proceeded to the collection of these notes, by requiring of the trustee, the defendant Caublo, to advertise the property for sale. The bill is filed to enjoin the. sale, and to stop the collection of the notes.

The defendants answered. Replication was taken to the answers. Commissions and proofs taken, and the cause being set down for hearing, was sent to this Court.

*Fleming*and *J. F.*Kerr, for plaintiff.

Boyden, for defendants.

Nash, C. J.

Fraud vitiates every contract into which it enters, and equity will grant relief by declaring it void and decreeing the instrument executed under it to be delivered up, and this whether the fraud be actual or constructive. The party, however, claiming this relief, must come into Court with clean hands. If he has been *apartieeps criminis*in the concocting of the fraud, equity will leave him to his legal remedy; in other words, will not interfere be*496tween the parties, but stand neuter. Relief is not granted where both parties are *truly*in *pari delicto.*Eor enforcing, however, this rule, it is not sufficient that both parties are *in delicto.,*concurring in the unlawful act; they must stand in *pari*delicto, for there may bo other, and very different, degrees of their guilt. Judge Stoet, in the 1st voh of his Equity, section 300, says *“*one party may act under circumstances of oppression, imposition, hardship, undue influence or great inequality of condition, or ago, so that his guilt may be far less in degree than that of his associate in the offense.” In such cases tiie court will grant relief in favor of a plaintiff who was *particeps criminis*as not being in *pari delicto.*Such is the decision of the master of the rolls in *Osborne*v. *Williams,*18 Ves. 382. The master observes, “ Courts of law and equity have held that two parties may concur in an illegal transaction, without being deemed in all respects in *pari delicto.*I consider this agreement as substantially the mere act of the father.” The agreement between the parties was an illegal one, as being in contravention of the post-office act. The parties being both dead, the bill was filed by the representatives of the son, against the representatives of the father, for an account, and decreed, *though*both decedents were *participes criminis.*

The same principle applies to cases of usury. If the borrower asks relief, equity will grant it upon such terms as it may prescribe ; and if he has paid the money, ho can recover back the excess of interest, and neither the maxim of *parti-ceps*criminis, nor that of *volenti non fit injuria*applies. He is not in *pari delicto.*He stands in *vinculis,*— is called the slave of the lender, and is compelled to such terms as tlio usurer and his necessities impose upon him ; *Smith*v. *Bromley,*Doug. Rep. 696, in note ; 1 Story’s Eq. sec. 3Q2.

Let us bring this case to the test of those cited. The plaintiff is the mother of Meshach Pinckston, deceased, whose representative, Moses Brown, is before the Court. At the time the notes and deed of trust were executed, the plaintiff was old, infirm, weak of mind, and much diseased and distressed in *497body, having, as the testimony shows, recently been struck with paralysis. Her property was not large, but more than sufficient to pay all her debts. "With a view to delay and hinder Mr. Clark in the collection of his debt, the deed of trust was made, all her other debts being provided for in it. This deed is then clearly void as to Mr. Clark — the transaction was illegal, and the plaintiff was *a particeps criminis ;*and as all the debts secured by it have been paid, except the notes made payable to Meshach Pinckston, the plaintiff is entitled to a decree to have it surrendered, together with the property mentioned in it, unless she stands in *pari delicto*with the obligee, Meshach. lie washer oldest son ; all the rest of her children being infants. lie lived with his mother, and they worked the farm together. He managed the whole business, sold the crops, and after furnishing the family, paid the store-bills and other accounts, and appropriated the residue of what was realised, to his own use. Ilis mother had great confidence in his integrity and ability. In the language of one of the witnesses, “ such was his influence over the old lady, that he could make her do just what he wished her to do.”

Such was the relation in which the mother and sou stood to each other. The plaintiff becoming very uneasy about her affairs, Mr. Craigo was sent for to advise with. When he' got there, he found the old lady in bed, weeping and much distressed. She told him she had been informed that Mr. Clark was about to enforce the payment of his debt, and if he did so, it would ruin her. Meshach was there and no one else. She proposed to make a conveyance of her property to her children. The witness proposed she should make a trust, to which she assented. Upon summing up the amount she owed, it was ascertained that, excepting the debt to Clark, the property to be conveyed would considerably exceed in value the amount of the debts. With a view to cover the 'whole of the property, Craige proposed that the plain tiff should execute three notes to her son Meshach, to an amount sufficient for that purpose. The notes were written aud executed and antedated, so as to come within the operation of the deed. No one, up*498on reading the proofs in the case, can doubt that Meshach was the person who gave the information that Clark was about to press the collection of the debt due him. Was this information true? What has become of the Clark debt? We hear nothing more of it. Is it still in existence ? Eor aught that appears it is, and no demand of it by Clark, or any other person, is shown. We are justified, then, in considering the information given to her to have been false, and given for the purpose of working upon her fears, and driving her to the execution of the trust. This case is, in some of its leading features, like that of *Osborne*v. Williams, *ubi supra.*There, the concoction of the fraudulent transaction was a father practicing on his son ; here, it is a son practicing on the weakness of an aged and confiding mother. In the case just referred to, the master of the rolls says, *“*I consider this agreement as substantially the mere act of the fatherand the deed of trust in this case, under the evidence, is to be considered as the niere act of Meshach, the sou. Here were imposition, hardship, undue influence and great inequality in age, all brought to bear upon the plaintiff. The mother and son were in *de-*lieto, but not in *pari*delicto, and the plaintiff is entitled to the decree she asks.

Pee Cueiah, Decree accordingly..