Barber v. Lyon. against the trustee, and all other persons except innocent purchasers for value. A rule most equitable and just is, that if a conveyance is obtained by fraud, it is treated in a court of conscience as if never made. The fraudulent purchaser is treated as a mere trustee for the vendor who has been cheated and made a victim of the fraud. (Carey v. The Cincinnati and Chicago Railroad Company, 5 Iowa, 357; Story's Equity, § 1265.) Equity affords a more ample relief than is attainable at law, by compelling a party who has acquired an apparent right as a consequence of his fraud and false representations, to transfer it to the party equitably entitled to it. (Rogers v. Bratt, 5 Gilm., 582.) And the principle applies where money held in trust for another is wrongfully converted. Analogous to this is the rule that the abuse of a trust can confer no right upon the party guilty of the misconduct. Hence it was held in The Bank of America v. Pollock, 4 Edwards' Ch., 215, where a clerk fraudulently obtained money from the bank, with which he bought stock, and transferred the same to his sister, that the bank could follow the money and have a transfer of the stock to itself. All these well-settled rules, and the cases based thereon, are applicable primarily to the immediate parties to the fraud. They are also applicable to those who claim in privity with the party abusing the trust or practising the fraud. So they are to a party who takes the fund, or that which represents it, with a knowledge of the fraud, or without paying a consideration, or perhaps in payment of a precedent debt. They are without weight, however, as against innocent third persons, who claim not in privity with, but adversely to those practising the fraud, who have been guilty of no wrong, have received none of the money, but in good faith have rested upon a security valid when given, and which they have in no manner released nor VOL. XV.-6 Barber v. Lyon. surrendered. And, therefore, while Lyon might treat Whitlock as a trustee, it by no means follows that he could follow the money borrowed in to the lands, to the prejudice of complainant, who had no knowledge whatever of the alleged fraud. Barber's liability continued to Stover, or his assignee Evans, after his sale to the Whitlocks in 1856. That is to say, the holder of the note and mortgage could look to Barber as well as the other parties for his pay. As between the mortgagors, however, it does not appear what the arrangement was for the payment of that debt. Whether the Whitlocks after their purchase from Barber, and in part consideration for the conveyance of his one-third interest to them, assumed the payment of the Stover mortgage, or whether he was still to pay his proportion of it, is not shown. An argument drawn from the fact that he in his deed covenants against incumbrances can avail but little, from the fact that the mortgage from the Whitlocks to him, covering all the land contains a like covenant. And when it is borne in mind that two-thirds of the land covered by the Stover mortgage belonged to those purchasing of Barber; that his covenant did not cover that, and that as between them he was in no event liable to pay more than one-third of that mortgage, there would be but slight ground for claiming from the covenants in the deed that complainant had assumed this debt, or that his liability as between him and the Whitlocks, still continued. If we add the consideration, that Whitlocks alone borrowed the money of Lyon to pay Evans; that they admit that they were alone liable for it and had no claim upon Barber, and that Lyon was certainly negligent in parting with his money without first seeing to the satisfaction of a mortgage apparently very much larger than the sum loaned, but which he claims was to be satisfied from such loans, we say such considerations would seem to show that it was not Barber who Barber v. Lyon. received the benefit of the money borrowed of Lyon, but the Whitlocks, and that they should sustain the burden. This is not a case where the parties have equal rights and equal interests, for there is nothing to show that Barber is equitably or legally bound to contribute towards the payment of the Lyon debt. Nor has Lyon any right to be subrogated or substituted to the rights of Evans. He loaned his money to Whitlock and not to Evans. There was no intention on his part, either expressed or fairly to be implied, to keep the mortgage in existence, to purchase such security and hold it. The mortgage was paid off and canceled. And we are aware of no principle which would justify the Court to revive or bring to life this obligation which has been taken up and canceled by the consent of all the parties to it. Adding the thought that Lyon was not compelled to advance this money to pay Whitlock's debt to protect his own right; that he did not stand in the relation of surety, and in the absence of some agreement, we do not see how a Court of Equity could substitute him in the place of Evans to the prejudice of Barber's rights. There being no agreement, it seems to us that it would be inequitable to keep such security alive. It is simply a case where the debt has been extinguished and absolutely satisfied with the money advanced, and which is now sought to be revived against a party who has acted in good faith and without knowledge of the alleged fraud. To do this we think would be against good conscience and without precedent. Affirmed. The State of Iowa v. Ansaleme. 44 85 369 44 90 510 90 536 90 572 44 THE STATE OF IOWA V. ANSALEME. 1. SELECTION OF JURORS. That the lists of grand and petit jurors selected by the judges of election in the several townships of the county, and accompanying the proper election returns, are not authenticated by a formal certificate, is not, in the absence of fraud, sufficient cause for setting aside an indictment. 2. INDICTMENT: NAMING OFFENSE. When an indictment charged a defendant "with the crime of nuisance," it was held to be sufficient to designate the name of the offense, when the language of the charging part of the indictment described the offense defined by § 1564 of the Rev. of 1860. Appeal from Marshall District Court. TUESDAY, JUNE 9. INDICTMENT for nuisance. Henderson & Boardman for the appellant. C. C. Nourse, Attorney-General, for the State. WRIGHT, J.-I. Defendant moved to set aside the indictment, upon the ground that the grand jurors were not selected and returned by the judges of election in the manner required by law. From the evidence submitted in support of this motion, it appeared that accompanying the different poll books of the several townships was what purported to be a list of grand and petit jurors. In some instances such lists were regularly headed and certified by the judges. In others there were lists designating which were grand and which petit jurors, not signed, however, nor in any manner certified by any officer. In two lists there was nothing to designate which were returned for the grand jury, but the requisite number for both juries were returned. All these lists accompanied the returns of election, which were duly sealed and signed. The lists were recorded in the election book, not signed by the judge, but containing this heading: "List of persons qualified to serve The State of Iowa v. Ansaleme. as grand jurors, selected at the time of holding the general election, October 8, 1862." In the two townships which did not distinguish the one list from the other, the record above mentioned shows that the names first appearing were named as grand jurors. Seventy-five names were thus recorded, being the number provided for by § 2723 of the Revision of 1860. The law provides that the judges of election shall make the requisite selection and return lists of names as selected to the county judge, with the returns of election, and in case the said judges shall fail to make and return said lists as therein required, the county board of supervisors shall, at the meeting to canvass the votes polled in the county, make such lists for the delinquent townships, § 2727, Rev. of 1860. It will be seen that no specific form is given for making the return of said lists. There is no requirement that the judges shall attach a certificate to said lists authenticating them. And while it would certainly be more formal, and more effectually remove all chance for fraud or imposition to attach some such certificate, we are not prepared to say that such failure is a good cause for setting aside an indictment, where there is no pretense of fraud, where there is no suggestion that the lists returned were not those actually made by the judges, if such lists accompanied the duly authenticated returns, properly sealed, and delivered to the county judge. And especially is this true, where such lists have been duly recorded in the election book. It is not necessary that the return of the board of canvassers, in making the lists, as contemplated by the above sections, should be spread upon the record. If the returns are informal (as in the case where there is no distinction in the returns between grand and petit jurors) the canvassers may correct them, and where the record in the election book shows a due and proper selection, the presumption is, |