148 Iowa 345 | Iowa | 1910
The plaintiffs allege that prior to the commencement of this action they sold and conveyed» a certain tract of land to one Tburtle by deed with the usual
Asuuming, as we must, that J. J. Eichardson, in purchasing the land in question, undertook the payment of the defendants’ judgment and retained from the purchase price a sum sufficient to satisfy the same, we think the demurrer should have been overruled. The case as made by the record and as presented by the arguments of counsel presents for consideration only the relative rights and equities of the plaintiff J. J. Eichardson and the defendant Eoberts. Eichardson is the party who invokes in his behalf the aid of a court of equity. It is an ancient and sound maxim that he who asks equity must be willing to do equity. The demurrer admits that in purchasing •the land in question he deducted from the purchase price ■and still holds in his hands the money with which to pay the defendants’ judgment; and without regard to the question whether as a matter of technical right the conveyance •to him operated as a merger of the prior liens in his title, or whether the claim against him is one which might be enforced at law as for a debt or for money had and received, we think there is no rule of equity which will grant him affirmative relief against said judgment while he holds in his hands the money with which to pay it and fails and neglects so to do. See Bispham’s Equity, section 43; Morrison v. Hershire, 32 Iowa, 271; Kagy v. Ind. Dist., 117 Iowa, 694.
The decree in plaintiffs’ favor will therefore be reversed, and the cause remanded for further proceedings in harmony with this opinion. Reversed.