The demurrer to the first count was well taken. The case stated in it amounted to a collusive and fraudulent attempt to aid the defendant in obtaining title to a parcel of land to be sold by the administrator of C. C. Humphreys under license, at a price much less than its value,'to the injury of creditors or other heirs, for a consideration to be paid therefor to the plaintiffs. The court will not enforce such a contract, nor aid one of the fraudulent parties to obtain the fruits of his fraudulent agreement. In such cases the maxim melior est *349conditio possidentis, applies. ■ Besides, the count does not allege that the defendant obtained title through the aid of plaintiff, which is the basis of his claim. The demurrer was properly sustained.
To the second count, defendant pleaded the general issue and the statute of frauds. The exceptions state that the plea was sustained and the second count adjudged bad. It does not appear that any suitable issue was made to require a ruling upon the sufficiency of this count. But as the parties have argued the question upon its merits, we deem it advisable to express our opinion. The count is inartificially drawn, but we gather from it the allegation that plaintiffs conveyed their interest in a certain lot of land, of which they were part owners, as heirs, to the defendant, another heir, upon his agreement to pay two outstanding mortgages amounting to twenty-six hundred dollars, secured upon other real estate, in which the parties were interested, and hold or carry the mortgages at a reduced rate of interest as long as plaintiffs desired. Nothing was to be paid to the plaintiffs. The breach alleged is failure to pay the mortgages. There is no allegation of damages suffered by this breach; but the count closes with a claim for money alleged to be due plaintiffs under the agreement set out in the first count, which related to other lands, and alleges a promise to pay that. This count is fatally defective.
Exceptions overruled.