delivered the opinion of the Court on the first appeal—Heydenfeldt, J., and Terry, J., concurring.

Admitting that the conduct of Laffan and Holmes, in the purchase of Gunter’s interest in the premises in dispute, was a fraud upon his right; or at least a transaction so reprehensible in all its particulars as to raise the presumption of unfair dealing, and warrant a Court of Equity in setting it aside, I am of opinion that the sale was ratified by Gunter, and this I think is clearly shown by his testimony in the case of Peck and Wilson against Burritt, in which he admits that he knew of the compromise of the two-thirds interest between Holmes and Burritt, and the surrender of the Lockwood judgment, and consented to it, and after-wards agreed to the re-sale to Holmes for six thousand dollars, in county scrip, one-half of which he allowed to Burritt on settlement.

The evidence, to my mind, establishes the fact beyond a doubt, that he knew, at the time, that the six thousand dollars was paid for his remaining interest, whatever it might be, in the premises. Eor what else could it have been paid? The purchase of the judgment of Lockwood, Hackett and Judah, by Laffan and Holmes, and the sale under it, could not cut out Starkey’s mortgage; heat least had a lien, until the debt due from Gunter to him was paid. The deed to Starkey was executed on the seventh of March, 1850, and the Lockwood judgment obtained J anuary 20,1851. Gunter consented to the arrangement by which the Lockwood judgment was assigned, and the two-thirds interest in the property, and the re-sale of this interest for six thousand dollars, was approved by him, as appears by his testimony. In fact, having assented to this arrangement, and assigned his interest in the matter to Peck and Wilson, it is difficult to see how he can now come into Court and claim relief against the consequence of his own acts, knowingly and voluntarily done.

Judgment reversed, and cause remanded.

delivered the opinion of the Court on the second appeal—Terry, J., concurring.

When this case was here before, the decree of the inferior Court was reversed, and the cause remanded. .It was understood by the Court that after the discharge of Starkey’s debt, *592 there was a balance left, which had come to the hands of Laffan before the date of Holmes’ purchase, and the judgment of the Court should have ordered an account as to that sum, reversing the decree in every other particular. If it had not been for this one circumstance, this Court would have dismissed the bill, and ordered a final judgment for the defendant. Upon the remittitur’s going down, however, without any specific directions to the Court below, the parties have undertaken to try the case de novo, by procuring some additional testimony bearing on the point upon which the first decision was based.

Ordinarily, such a practice would not be tolerated. After the plaintiff had come to this Court upon a statement agreed upon as containing the facts and evidence of his case, and a judgment has been pronounced against him, going to the whole merits of the controversy, it would be exceedingly improper to allow him an opportunity to alter or change the facts upon a second trial. Such a practice would open the door to frauds and perjuries innumerable.

But we do not think that the additional evidence which was introduced on the second trial alters the case at all. After balancing the testimony, we are satisfied that the preponderance is still greatly in favor of the defendants, and abundantly substantiates the fact that the plaintiff ratified and confirmed the sale from Burritt to Laffan. To enter into a detail of that evidence, and our opinion upon it, would be alike unprofitable and unpleasant.

This is the first instance in which I have ever known a party attempt to gain a case by proving that he had, on a former occasion, perjured himself, and it may be well doubted whether, if the original plaintiff was alive, he would have consented to such a sacrifice of personal honor for the whole subject of this- litigation. If the proceeding is not novel in law, it at least contravenes that Christian and charitable maxim “ de mortuis nil nisi bonum,” which should be law.

The facts being substantially the same in this as the former record, it results that the first judgment is the law of this case, even if it was erroneous. Dewey v. Gray, 2 Cal., 374 . But we do not place our opinion on this ground alone, we are satisfied that the former opinion of this Court was correct. The appellant contends that the sheriff's sale of Gunter’s interest to Laffan was void, and second, that it was not affirmed by Gunter with full knowledge of the facts.

Upon the first point, it cannot be denied that Gunter’s interest was the subject of levy and sale upon execution. Then, if the sale was void, it must be on the ground of fraud in fact, or fraud in law. There is no evidence to show that there was any fraud in fact upon the part of the defendant. The purchase was made under a regular judgment, at an open and public judicial sale, *593 and if there was any fraud in the transaction, it arose from the relation of the parties toward each other.

In the first place, the plaintiff and defendants were not partners—they had separate interests; the one in the house, the other in the land. There was no community of profit and loss, or interest in the residuum, but a division of rents agreed on. Even if they were tenants-in-common, or partners, there is no rule of law which would forbid one partner or tenant-in-common from purchasing at a judicial sale, particularly under a judgment not obtained by him.

There was nothing in the former relations of the parties which gave Laffan an unfair advantage, or the means of information superior to others, so as to enable him to sacrifice the rights of Gunter. The sale was of a certain interest in property, not of a share in rents and profits due. The deeds by which that interest was held were of record, and the title open and notorious. Any one desirous of purchasing, could have ascertained the value of the interest as easily as Laffan.

Laffan was not at the time the trustee of Gunter, for Gunter had disposed of his interest to Starkey, neither did Laffan have any money of Gunter’s in his hands. In addition to all this, Gunter was present at the salé, and having full knowledge of all that transpired, never forbid it in any manner. But even if the sale was fraudulent, as we remarked in our former opinion, the testimony shows, beyond doubt, that Gunter assented to it, with full knowledge of all the facts.

The learned counsel for the respondent contends that the plaintiff was mistaken as to the true import of the conversation between himself and the witness Burritt. We think not; we have his sworn declarations made in a judicial proceeding, which it is the theory of the law to consider as true, whatsoever may be the fact otherwise, and this is corroborated by the testimony of another, and a disinterested witness. Mow, admitting for the sake of argument, that he was mistaken, and that his declarations were not true, this mistake should bé established by positive and overwhelming proof, not by raising a doubt, or poising the scales so nicely that a breath would turn them.

But the respondent contends that the sale being void, the title was still in Gunter, and could only be ratified by a written conveyance from him; even if the sale were void, the deed was good, and carried with it the legal title until it was set aside by a Court of Equity. This has never yet been done, and the bill filed in this case does not ask $hat the sale may be set aside, and the deed canceled. If, then, Burritt bought for Gunter, the title was still in Burritt, subject to Gunter’s equities, and if Burritt conveyed the property with the approval of Gunter, who received a portion of the proceeds, the conveyance was good as against him, and he would be estopped from denying or avoiding it; so, *594 on the other hand, if Burritt bought for himself, and by reason of some relation between them, Burritt was the trustee, and held the legal title for Gunter’s use, a conveyance, under like circumstances, would be conclusive upon him.

If there was no other point in this case, except the fact that this conveyance is still outstanding, and that the plaintiff has not, nor does not, seek to set it aside, it would be fatal to a recovery. Besides all this, Gunter, who has received large benefits from this sale, must come into Court with clean hands, and make restitution, before equity would interfere in his behalf.

Judgment reversed, and bill dismissed.