Page:Federal Reporter, 1st Series, Volume 5.djvu/492

 4S0 fedbbal bepobteb. �position of vendor as between him and his cestuis que trust. Vhe "due proportion" of the purchase money which is or should be paid to him before making a deed is not purchase money, as between a vendor and purehaser, for which a lien arises when unpaid. It is a sum made payable by the statute, in order that the occupant may not evade his just proportion of the expenses incident to the purchase of the town site. �But the whole arrangement made between the plaintiff and Crinaca was a plain departure, on the ^plaintifif's part, from the course marked out by the statute. Berry, as trustee, had flo right to sell the vacant lands to any one, except in the mode and for the purpose provided in the statute, (section 3863, ante,) and his whole agreement with Ginaca was illegal, f he duty of the trustee in this case, it seems to us, was plain. When, after the entry of the town site, the inhabit- ants declined to furnish the purchase money, the trustee might doubtiess obtain the money from some other source, and 80 complete the purchase. But the entry having been made as trustee, and the payment likewise, he could not law- fully deal with the property in any other way than the law pointed out to trustees. The transaction which actually took place being illegal, no lien could arise out of it. No person can acqaire a lien founded upon his own illegal or fraudaient act or breach of duty. Bandel v. Brown, 3 How. 406. �Since the complainant has no lien to enforce, and the establishing and enforcing of that alone gives him any stand- ing in a court of equity, can he now have a decree against the two defendants Ginaca and Gintz for the money alleged to be due from them, tbey having made default? It is true, as the plaintiff contends, that the defendants Friend, Terry, and Doane have no concei'n in this after the lien is defeated. But it may be a question of jurisdiction. Had the plaintiff filed a bill to recover money due from Ginaca and Gintz, eimply, his bill would have been dismissed, his remedy at law being plain and adequate. In such a case the suit would not be within the jurisdiction of a court of equity, and, although default should be made, the court would be without jurisdic- tion to make a decree. Jurisdiction of a subject-matter not ����