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In researching and seeking to understand your equitable defenses in a foreclosure action, there are few better foundations that early treatises on this topic.  Bear in mind that Equity is hundreds of years old and the concepts as applied in the United States have their origins BEFORE the formation of our nation.

Google Books has an ongoing digitization project involving the SCANNING of many texts.  The older of these are copyright EXPIRED and the full text images are POSTED at the Google Books website:

http://books.google.com/


I have been downloading and saving these to my hard drive.  Some of the more useful treatises are about one hundred years old!

For example, a Supreme Court case from which I quoted cited Pomeroys' Equity Jurisprudence (5th ed.).  That version doesn't seem to be scnned yet, but editions III (1905) and IV (1918) are online and available for FREE consultation at the Google Books website.

There are several challenges in accessing these.  For example, while Google Books has done a reasonable job in indexing by Author, Title and Name, they seem to do a very POOR JOB in distinguishing volumes of a multivolume set.  The 3rd and 4th editions of Pomeroy are each six volumes.

The title of the 3rd edition is:

"Pomeroy Equity Jurisprudence in Four Volumes By John Norton Pomeroy, LL.D., Third Edition, Annotated and Much Enlarged, and Supplemented By A Treatise On Equitable Remedies, In Two Volumes By John Norton Pomeroy, Jr." (San Francisco, CA: Bancroft-Whitney Company, 1905).  26 Mbs

The title of the 4th edition is:

"A Treatise on Equity Jurisprudence, As Administered In The United States of America Adopted For All the States and To the Union of Legal and Equitable Remedies Under the Reformed Procedure", By John Norton Pomeroy, LL.D., 4th edition by John Norton Pomeroy, Jr., A.M., LL.B., (San Francisco, CA: Bancroft-Whitney Company / Rochester, NY: The Lawyers Co-Operative Publishing Company, 1918) 36 Mbs.

Because the files are enormous, they take some time to download and save.  Save them on your hard drive for local browsing.  There is useful information throughout all six volumes, but the clean hands material is mostly in volume I of each edition.

FINDING the clean hands material is singularly problematic in the 4th edition (1918) as pages xxvi and xxvii contained the references to these sections within the table of contents are OMITTED (that should get our conspiracy theorists worked up!).

In the 4th Edition (1918) a list of equitable maxims appears in Volume I within Section 363 [pages numered 674, 675; at Google pages 733, 734].  The maxim "He who seeks equity must do equity" is discussed at length in Sections 385 through 396 [pages numered 713-737; Google pages 772-796].  The clean hands doctrine is discussed at length from sections 397 through 404 [pages numered 737-761; Google pages 796-820].  The Title page may be found at pages Google Pages 8 and 9.

Mortgages are discussed in Volume 3.  Equitable defenses are discussed in Volume 4. 

I will try to post some finding aids for Volume III later.

The files are themselves Adobe Acrobat .pdf files.  I need to UPDATE my copy of Adobe Acrobat.  When I a able to do so, I will endeavor to EXTRACT the most relevant pages for posting in the Legal Lounge / Law Library.

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The United States Supreme Court cited the 4th edition approvingly in discussing "unclean hands" in 1933:
"It is one of the fundamental principles upon which equity jurisprudence is founded, that before a complainant can have a standing in court he must first show that not only has he a  [*8]  good and meritorious cause of action, but he must come into court with clean hands. He must be frank and fair with the court, nothing about the case under consideration should be guarded, but everything that tends to a full and fair determination of the matters in controversy should be placed before the court." Story's Equity Jurisprudence, 14th ed., § 98. The governing principle is "that whenever a party who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy." Pomeroy, Equity Jurisprudence, 4th ed., § 397. This Court has declared: "It is a principle in chancery, that he who asks relief must have acted in good faith. The equitable powers of this court can never be exerted in behalf of one who  [*9]  has acted fraudulently or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make this court the abetter of iniquity." Bein v. Heath, 6 How. 228, 247. And again: "A court of equity acts only when and as conscience commands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity." Deweese v. Reinhard, 165 U.S. 386, 390.

Keystone Driller Co. v. General Excavator Co., Nos. 34 and 35, SUPREME COURT OF THE UNITED STATES, 290 U.S. 240; 54 S. Ct. 146; 78 L. Ed. 293; 1933 U.S. LEXIS 460, October 19, 1933, Argued , December 4, 1933, Decided

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Bear in mind that these are secondary legal references and very OLD ones at that.  The law has continued to evolve and everyone needs to very carefully review CURRENT STATUTES and CURRENT CASES in researching their own litigation or to obtain an attorney's assistane in doing so.  I have found these references to be very helpful as background and in helping me to use a more precise and more productive vocabulary in doing furhter additional research.  That is I find helpful KEYWORDS that make for very helpful Lexis-Nexis searches.

AND having access to these materials ONLINE saves me trips to the law library and allows me to better focus my research when I DO GO.  I believe the fact that Pomeroy's Equity Jurisprudence was cited with approval by the United States Supreme Court speaks for itself!  So take a look with these various caveats and LET US KNOW when you find tidbits you believe might be helpful to others!  
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Another classic Equity reference also available at Google Books ( http://books.google.com/ ) is Justice Joseph Story's treatise on equity, Commentaries on Equity Jurisprudence, which was updated and republished for many years after Justice Story's death in 1845.  Like Pomeroy's work, Story's treatise was oft favorably cited in court cases.

Google has a number of digitzed version of this work, which was originally published in two volumes in 1835-36.  One of the later versions (copyright expired was "Commentaries on Equity Jurisprudence, As Administered in England and the United States" By Joseph Story, LL.D., Fourteenth Edition by W. H. Lyon, Jr., LL.B., In Three Volumes (Boston, Little Brown & Company, 1918).

Justice Story also published two other works which bear on mortgage foreclosure: Equity Pleadings (1838) and Law of Promissory Notes (1845).  Amongst his other works was the first authoritative treatise on Constitutional Law (which he of course helped develop from the bench).

Justice Story was appointed to the Supreme Court in November 1811 at the age of thirty-two and served almost thirty four years on the Supreme Court until his death.  Justice Story also served as a Law Professor at Harvard Univeristy from 1829 through his death and his various published works other than Supreme Court opinions were written in his capacity as a teacher as well as a Justice.  

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The 14th edition includes a discussion of the equitable maxim "he who seeks equity must do equity", beginning at Section 69 in Volume I [Page numbered 76; Page 275 of 752 in Google presentation of the Volume I Images].  Discussion continues through Section 77 [Page numbered 81; Page 280 of 752 in Google].

The text includes this introduction to the idea:

"69.  He Who Seeks Equity Must Do Equity.  -- Another maxim of no small extent is that he who seeks equity must do equity.  This maxim practically applies to the party who is seeking relief in the character of a plaintiff in the court.  Thus for instance if a borrower of money upon usurious interest seeks to have the aid of a Court in Equity in cancelling or procuring the instrument to be delivered up, the court will not interefere in his favor unless upon the terms that he will pay the lender what is really and bona fide due him.  But if the lender comes into equity to assert and enforce his own claim under the instrument, there the borrower may show the invalidity of the instrument, and have a decree in his favor and a dismissal of the bill without paying the lender anything; for a court will never assist a wrong-doer in effectuating his wrongful and illegal purpose.  ..."

And also this gem in Section 70:

"It is a salutary rule of law that one who prevents the performance of a condition, or makes it impossible by his own act, will not be permitted to take advantage of the non-performance, and this rule applies with especial fitness where the moving party is impelled by personal interest."

Many very early cases embracing these equitable concepts are cited as authority for the points made within the treatise.

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Perhaps as others peruse these works and find language that seems compelling they can post additional information about what is said and where to find it!

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Discussion of Equitable Maxims within Justice Joseph Story's Commentaries on Equity Jurisprudence
In my prior post of 14 Dec 2007, I identified Justice Joseph Story's treatise on equity, Commentaries on Equity Jurisprudence, as a good source of discussion regarding the equitable maxim "He Who Seeks Equity Must Do Equity".  It also contains a good discussion of the Clean Hands Doctrine.

For the reference and conveneince of all, I have extracted the relevant pages (which are copyright expired) and have placed them within two much smaller, more convenient Adobe Acrobat documents.  I am happy to share these documents with anyone desiring a copy.

Perhaps the MS Fraud webmaster will take an interest in adding these to the Legal Lounge!


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Discussion of Equitable Maxims within Pomeroy's Equity Jurisprudence
I have also separately extracted the pages I cited in my post of 14 Dec 2007 relating to Pomeroy's "A Treatise on Equity Jurisprudence, As Administered In The United States of America Adopted For All the States and To the Union of Legal and Equitable Remedies Under the Reformed Procedure" (1918) and saved these into two Adobe Acrobat documents.

One document includes the complete text of the sections relating to the equitable maxim "He who seeks equity shall do equity".  The other contains the sections relating to the Clean Hands Doctrine.

I would be delighted to e-mail these documets to anyone who desires a copy.

Perhaps the MS Fraud web master will want to place copies in the Legal Lounge.

Bear in mind that this is a very OLD reference.  But the basic concepts employed within these maxims is centuries old and hasn't changed that much.  But you SHOULD consult the statutes and case law of YOUR STATE to understand more precisely how courts apply equitable principles in your jurisdiction.   
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