Upon the facts found by the judge before whom the action was tried, without a jury, I do not see why the judgment rendered was not correct. Assuming that the release executed by the plaintiffs was invalid at law, for want of a seal, the defendant, Mrs. Goundry, to establish it in equity, was bound to show that she had a superior equity to the plaintiffs. This' release was valid in equity, and a court of equity would establish and enforce it, if in equity and good conscience Mrs. Goundry, as against *283the plaintiffs, is entitled to such relief, upon equitable principles. A court of equity can give effect to parol contracts, and this release is certainly equivalent to a parol agreement for a release of the lot or premises described in it. Relief is given in such cases, and imperfect contracts made effectual, where the party seeking such relief is clearly entitled to the intervention of the court, upon the principle that what is agreed to be done is considered in equity as done when it ought to be done, and such is the question presented in this case. Ought this court to deem this release to be valid in equity, and give it effect, notwithstanding its want of a seal, which though strictly required at law, is a mere legal formality, which courts of equity may disregard P It is found by the judge who tried this cause that Caleb Goundry, who was largely indebted to the plaintiffs, proposed to them, on the 10th of December, 1860, that they should release to his wife the house and lot in question, from the lien of the mortgage then held by them, and which the plaintiffs in this action are seeking to foreclose; and as an inducement for them so to do he said he would make a general assignment to them of all the rest of his property. That the plaintiffs assented to such proposition, and executed such release on the same day; that on the next day Goundry executed such assignment, but before the execution of the same, and on the said 10th day of December, without the knowledge of the plaintiffs, he assigned or made over to his wife a demand which he held against some men in Pennsylvania, for high wines sold by him, amounting to over $1600, which was good and collectable. Upon this finding upon the facts, which is fully warranted by the evidence, the assignment of the debt to his wife was a clear fraud upon the plaintiffs. Goundry himself swears that he told Mr. Headley, on the 10th of December, that if he and Mr. Speelman would release their right upon it (the house and lot) “under the mortgage which they held, I would make an assignment to them of my other property.” It was clearly dishonest in Goundry to get this release from *284the plaintiffs upon an agreement to assign all his property, and retain and assign to his wife the $1600 claim or debt above mentioned; and Mrs. G-oundry is responsible for this fraud. Her husband made the agreement for her, and she cannot avail herself of the benefit of the agreement made by him with the plaintiffs for her benefit, and disavow a part of the bargain. She cannot come into a court of equity for relief in respect to this release imperfectly executed, and retain the $1600 she has received from her husband in fraud of the agreement made' when the release was executed. She has at best but an equal' equity with the plaintiffs, for both are creditors of her husband, and they, the plaintiffs, have strictly the legal title. Courts of equity never overreach the legal title when it is sustained by an equal equity with that of the party seeking relief. The only ground upon which Mrs. Goundry’s claim to have this release established in her favor must be the relinquishment by her to the plaintiffs, under the assignment,-of the $1600 she received on the debt against the Pennsylvania debtors of her husband, transferred to her by him, in violation of his agreement with the plaintiffs'. Ho offer being made in her answer to restore or transfer such debt or its proceeds to the plaintiffs, she is clearly, entitled to no relief in this court; and the judgment of foreclosure ordered by the special term was clearly proper, and the same should be affirmed, with costs.
[Monroe General Term, September 7, 1863.Judgment accordingly.
E. Darwin Smith, Johnson and Welles, Justices.]