dissenting:
So far as the bill of complaint in this case asks for a decree of forfeiture of all moneys paid by the defendant upon the contract for the purchase of the land mentioned in it, I agree with my brethren, that this Coñrt cannot grant the prayer of the complainant. Courts •of Equity never enforce forfeitures, but jurisdiction over this subject is left exclusively to the Courts of law, and is exercised by the latter, with great reluctance, and only in clear and positive cases.
I do not perceive how wo can grant any relief to the complainant under the pleadings and evidence in this case, except to order the deed which had been deposited with Mitchell in escrow to be delivered up to be can-celled, and the title re-invested in the complainant. In my view of the case, it becomes immaterial what was the written contract between the parties, or whether any subsequent verbal agreement ivas entered into respecting the subject matter of the written contract or the delivery of tlic deed, or whether such subsequent agreement ivas valid or void. It is beyond dispute that the deed ivas deposited with Mitchell by White in escrow, to be delivered to the defendant only upon the compliance by the latter with what White claims to be a valid agreement, and upon condition of its performance. This deed ivas surreptitiously obtained from Mitchell’s possession, without his knowledge and -without the authority or consent of *364the complainant. It matters not that the complainant had obligated himself to execute and deliver a deed upon the performance by the defendant of his agreement, nor would it matter if such agreement had been fully performed according to the understanding of both parties, so that nothing remained to be done by the defendant; for as the deed was never delivered, nor left for delivery except upon condition of certain acts to be done by the defen* dant, which were not done, no title passed by the unlawful and fraudulent acquisition of such deed, an.d upon which the rights of the parties can or should be adjusted. 'It is, to my mind, a monstrous doctrine, that any possible right can be acquired by a deed obtained as this was by the defendant, or any right exist to be-'adjusted by a Court of Equity relative to a title thus obtained. The defendant can have no rights, or ask anything from the Court, until the deed shall be surrendered, and the parties restored to the condition in which they were before its fraudulent acquisition. I cannot regard the deed as valid for any purpose, nor consent to adjust equities where a deed thus obtained shall be in any wise reeog* nized in such adjustment; and I do not think any principle can be discovered, or case found, where -su.ch a thing has been attempted before the present.
I think, therefore, that the complainant is entitled to a decree ordering the surrender of the deed to him to bo cancelled, and such necessary conveyance from the defendant as may make his title good of record, and to his. costs, and that adjustment of the rights and equities of' the parties whereby any right or equity of the defendant shall be recognized, shall depend, upon such surrender and re-conveyance, and a bill brought for such pnupose after the-defendant has restored to the complainant tire title thus, fraudulently and . unlawfully acquired.