Tibbetts v. Cate , 66 N.H. 550 ( 1891 )

"It is well settled that where the agreement secured is simply one for the payment of money, a forfeiture, either of land, chattels, securities, or money, incurred by its non-performance, will be set aside on behalf of the defaulting party, or relieved against in any other manner made necessary by the circumstances of the case, on payment of the debt, interest, and costs if any have accrued unless by his inequitable conduct he has debarred himself from the remedial right, or unless the remedy is prohibited, under the special circumstances of the case, by some other controlling doctrine of equity." 1 Pom. Eq. Juris., s. 450. The condition in the will relating to the payment of taxes, for the non-performance of which a forfeiture is claimed, was intended to secure the payment of money, and the damages for the default can be readily ascertained. The case is a proper one for granting equitable relief, unless the plaintiff has lost the right to claim it by reason of her inequitable conduct. He who seeks aid from a court of equity must himself be free from inequitable conduct with respect to the same subject-matter. The facts are found, that the plaintiff's refusal to pay the taxes when called upon was in consequence of her ignorance of her rights and duties in the matter; that she was ignorant of the ways of doing business; that she understood that the tax bill ought to be made out in her name, and that if she paid the taxes she was entitled to a receipted tax bill made out in her name; and that she believed she was entitled to a deed of her interest in the premises, and applied to the defendant for such a deed. It appears that she offered to pay the taxes for 1888 to the collector if he would give her a tax receipt in her own name and that she requested the selectmen to tax the land to her in 1889.

Under these circumstances the refusal of the plaintiff to pay the taxes of 1888 and 1889 was not in any true sense wilful, and she is entitled to the relief prayed for.

Decree for the plaintiff.

SMITH, J., did not sit: the others concurred.