The facts stipulated by counsel at the pretrial conference constitute the premise for the consideration of the question of law.
Approximately twenty-five years ago the plaintiff and the defendant Lucia Lupone, the lawful wife of Luigi Lupone, originated their licentious relationship. They cohabited illicitly under the supposition of the neighborhood that they were man and wife until their discordant detachment in August, 1948. The intimacy of the association is inferred from the fact that during the period of their coefficiency she gave birth to ten children, five of whom are now living. The plaintiff proudly acknowledges the paternity of all.
It was during the days of concord and unanimity of interests when the friendship was strong that on April 2, 1945, a residential property was acquired in the City of Perth Amboy. Title thereto was conveyed by the deed to "Fabio Casini and to Lucy Casini, his wife." The deed operated as a conveyance notwithstanding the misnomer and misrepresentation of the relationship. Since they were not legally husband and wife, the tenancy created was that of tenants in common. Hubatka v. Meyerhofer , 79 N.J.L. 264 (Sup. Ct. 1910); reversed on other grounds, 81 N.J.L. 410 (E. & A. 1911); Burger v. Burger , 105 N.J. Eq. 403 (Ch. 1929); R.S. 46:3-17; Loper v. Loper , 170 A. 804 (Del. Sup. Ct. 1934).
I have read somewhere that affection in such cases is like a coal in that although it at first lights a bright flame, it
gradually and ultimately cools. The plaintiff has now evacuated his place in the home and seeks in this action as a tenant in common to obtain a partition of the parcel of real estate.
With some recognizable ingenuity, counsel for Lucia has in her answer to the plaintiff's complaint averred that the illegitimate and immoral pursuits of the plaintiff with this defendant have barricaded his prayer for such relief in a court of equity.
The maxim that "he who comes into equity must come with clean hands" is truly a fundamental principle of equity jurisprudence.
It must, however, be initially realized that courts of equity respect the maxim, not for purposes of punishment for the extraneous transgressions of the plaintiff, but upon considerations that conduce to the promotion of justice and equity in the particular case. In this respect the application of the maxim resides in the judgment of the court. The maxim is a canon of conscience and morality. It is invoked for reasons of public policy in its application to the circumstances of the case.
The immediate and proximate relation of the evil conduct of the plaintiff to the equitable and legal rights of the parties in respect to the subject matter of the litigation is an element of foremost consideration. It has been resolved by an abundance of adjudications that the iniquity which deprives a suitor of the aid of a court of equity must be evil conduct in the particular matter or transaction in respect to which judicial protection or relief is sought. Only a few citations need be given. O'Connell v. O'Connell , 93 N.J. Eq. 603 (E. & A. 1922); Neubeck v. Neubeck , 94 N.J. Eq. 167 (E. & A. 1922); Jatman v. Jatman , 7 N.J. Misc. 1101 (Ch. 1929); Griffin v. Whittemore , 109 N.J. Eq. 204 (E. & A. 1931); Hunt v. Hunt , 10 N.J. Misc. 675 (Ch. 1932); Pentek v. Pentek , 117 N.J. Eq. 292 (Ch. 1934); Lukaszewicz v. Lukaszewicz , 137 N.J. Eq. 383 (Ch. 1945); Tami v. Pikowitz , 138 N.J. Eq. 410 (Ch. 1946); Hansen v. Local No. 373 , 140 N.J. Eq. 586 (Ch. 1947).
Where the parties to the action are found to be in pari delicto , relief has at times been awarded to the plaintiff for the reason that in the particular case public policy has been advantaged by that course. ...