Page:Federal Reporter, 1st Series, Volume 4.djvu/873

 HICKS V. JENNINQS. 859 �This state of faots raises two questions: �(1) Can the fraud of Irby, and the failure of the consid- eration in the sale of lot 133, be set up as a defence to a suit io foreolose the mortgage on another tract of land executed ■to secure a note given for the purchase priee of that other tract ? The evidence makes it clear that the purchase of the three tracts of land was one transaction. It was provided for in one instrument, and one gross sum named for ail the lands ■which Irby agreed to convey. It is true that, in arriving at this gross sum, estimates were put on each tract, and that, ■when the -written contract came to be executed, three separate deeds were made for the three tracts respectively, and a con- sideration of $10,000 named in each. The deeds were ail made, the cash instalment paid, and the mortgage executed at the same time. Now, if Irby himself were seeking to fore- close this mortgage, it is quite apparent that his fraud in selling lot 133 for $10,000, which had been paid, might be set up as a defence against his recovery of the same amount as the consideration for another of the tracts sold by the same contract. In an action at law the defence might be restricted to the note sued on ; but not so in a court of equity, which always looks at the substance of things, and seeks to do com- plete justice between the parties. �A court of equity would not allow a decree upon the note and mortgage in suit, and then tum the defendant over to another suit to recover the amount ont of which he had been wronged by the fraud and falsehood of the complainant. Having the parties before it, it would adjust the controversies between them, springing out of the same transaction, accord- ing to equity and good conscience î and this would be to refuse a decree on this note and mortgage in consideration of the fact that the complainant had already defrauded the de- fendant, in the same contract out of which the note and mort- gage sprung, to an equal or greater amount. Upon the facts of the case, therefore, if Henry Irby were the complainant, no decree should be made in his f avor. �(2) The next question is, can the defence which the defend- ant could have eet up against the note and mortgage, if the ����