I deem it proper to note the reasons of my dissent. I do not concur in the majority opinion in that the plaintiff's hands were clean and that he was therefore entitled to the aid of a court of equity.
The special tax bill on which this action was based was an action in rem. A personal judgment could not be recovered against A.H. Handlan, Jr., and there was nothing for him to accomplish by contesting it. When named in the action as the owner of the property, there was one of two honorableUnclean courses of action for him to pursue; either to disclaimHands: ownership or ignore the action. Instead of pursuingFraud. either, he consulted with his father, A.H. Handlan, Sr., who advised him to "fight `em." The former thereupon took upon himself the burden of the litigation. These Handlans, as the record discloses, were intelligent business men. The evident conclusion from these facts is that the father, realizing that the plaintiff McMahon had made a mistake in the name of the defendant, concluded that if the suit could be sufficiently prolonged the Statute of Limitations would bar the action, and the elder Handlan would reap the benefit of the improvement without cost to him. The younger Handlan, by contesting the suit, assumed the role of owner of the property, gave a semblance of sincerity to his defense until the action was barred. This course was pursued not only with the knowledge and at the suggestion but for the benefit of the father, A.H. Handlan, Sr.
The majority opinion states that the advice of Handlan, Sr., to his son to fight the suit was unknown to the plaintiff and did not influence his action. Let this be granted. This does not cleanse Handlan, Sr.'s, hands so as to entitle him to relief in a court of conscience. *Page 700 "If," as the plaintiff pertinently says, "this be a correct construction of the province of a court of this character; then A can advise B to perpetrate a fraud and when brought to book to answer for it can say: `Yes, I advised it, but C, upon whom it was perpetrated, did not have knowledge of it at the time, and hence I cannot be held liable."
With that temperate consideration which should be given to the opinions of those who differ with us, I cannot acquiesce in what I deem to be the approval of a palpable fraud. Hence the foregoing.
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