
    Davis et ux. vs. Walsh.
    TV D becoming an insolvent debt- or, hi* real estates was sold by his trustee, and purchased by C D, to whom a deed was executed, C D, in making the purchase, acted professedly as a f'nrnd to W D, so far that if he could procure the puvciiafla money within a certain time, he was to have the benefit of the purchase; but as hs could not raise the purchase money, it beca mo necessary to sell a part of the estate to lvimhms * C B, which part TV D and ?i his wife,, were desirous to preserve to themselves, and ty' »re anxious to procure a friend (o h come the purchaser for and on behalf oí M, the wife, and a*? a i/U'A'e for her;'uhich intention, previous to the sale, was made k-mun to R TV, who approved of it, ha I it \v.»s agreed dm* ,T S, should bo the nominal purchaser, and R TV was to be his surety for tW- DA'cluse money ,1 L> b* cairn- the purchaser, and it was known and understood, at the time, that lie purchased for M the wife of TV D. R TV became surety for J S, andTV 1) has always been in posses» si au of th * p rotiiivs W O, havirg part of ihe purchase money applied to R TV, to obtain a bond of «ionwyauee from C D to M, the wife of TV B, for the property, when he was informed by R W that he h“’d «got « bond to himself, as .1 S had given it ail up to Mm, and that TV D had nothing to do with it. J S had been indue* cl, in order to secure R TV, to direct C 1) to give a bond of conveyance to R TV, wli > a,sur d J o that no advantage should be taken of TV I>, and that when he paid the purchase m<«iej. a deed should be executed to his wife B.X. The premises were conveyed by C 1) Vo R TV, who brought un actum of ejectment against. W I>. The amount of principal and interest, of the purchase money, was tendered by TV X> to R TV, and a deed demanded, which he refused to evv'ite. TV D, ;iu'l M his wile, filed their hill against ll W, to b'Mjuieied in their possession of the pro ones, and t> compel a conveyance from him to M, the with— Decreed, that R W convey the ian*’i. an qu.siioii to W i), and V., his wife, in fee simple, and that nu account bo stated* &cssuid the bnüanee ilü ¡ jte p ti J at Ue ti no it \Y shall convey Uie UmU
    Appeal from a decree of the Court of Chancery, distnisxldv the bill of complaint. The bill stated, that Davis being seized of a valuable real property, and also- possessed of a considerable personal estate, consisting, among oilier tilings, of certain chattels real, and being also indebted to <ii\er.s citizens of this and of tho United 8t.at.es, beyond what he wars able to pay without a greater indulgence than his creditors were disposed io graut him, was compelled, sometime in the summer of the year 1787, to apply to the chancellor for the benefit of the act of assembly respecting insolvent debtors; that hi consequence thereof Stephen Wilson and Robert Lemmon were appointed trustees,oil behalf of the creditors of Davis, and that he executed to them', on the 10th of October 1788; a deed of all his real and personal property. That the trustees proceeded to sell, and, did sell a part of the- property to Cumberland Dugan, for the sum of £1310 current money, and on the 6th of November 1792, the trustees executed to Dugan a deed for the property so to him sold. That Dligan, in lhaking the purchase, acted professedly as the friénd óf Davis, so fár, that if hé Davis could pro-’ 'cure die purchase money within á certain time, lie was to have the benefit of the purchase; but as he was hot able so to do, it became necessary to sell the property, or a part thereof; to raisé the purchase money; and to indemnify Dugan\ and that Dugan being about to sell the property; and among the rest the following five lots, distinguished on a plot of Baltimore town by the numbers 950, 951, 952; 953 and 954, which lay connected and adjoining each other, on which Davis had a house, in which he resided with bis family, and also á garden adjoining the house; which Davis and his wife were particularly desirous to preserve for themselves, but thinking themselves not able to purchase the whole of the lots, they were anxious that the lots should not be sold together, but subdivided into three or more subdivisions, each to be sold separately; 'and one of the subdivision's to include the house and garden; and in that case it was agreed that a friend should become the purchaser of the subdivision, including the house and garden, for ahd on behalf of Mary, the wife of Davis, and as a trustee for her, and that upon the purchase money being paid, the subdivision, so to be purchased, should be conveyed to her; and the better to effect this design, David and wife conversed with Walsh, the defendant, who professed himself a very warm friend to Davis and wife, and requested him to endeavour to prevail on Dugan to sell the lots in subdivisions, to enable Mary, the wife of Daviss by the intervention of a friend, to become the purchaser, fully disclosing to Walsh the intention of Davis and wife, that the wife should thus become the purchaser of that subdivision which should include the héuse and garden. Walsh perfectly approved Davis and wife’s design, and promised to give his assistance for its completion, but declared, that in preference to applying to Dugan himself, be would apply to major Thomas Yates, the auctioneer, and solicit him to procure Dugan thus to subdivide the property, and as an encouragement for Dvgan so to do, he would let Yates know that in such case he, Walsh, would, purchase one of the subdivisions, consisting of meadows. That Walsh accordingly applied to Yates to procure a subdivision of the lots, informing Fates that it was intended the subdivision, in which the house,and garden were in-eluded, should be bought in, in trust for the wife of, Davis; and Yates, in consequence, prevailed on Dugan to subdivide the lots into three subdivisions, in such manner that one of them, containing nearly one acre of ground, should include the house and, garden. That Davis and wife, agreed with Joseph Stockton, who married tha sister of the. wife of Davis, to be the nominal purchaser of. the house and garden for the wife of Davis, and to attend the sale and, bid off the said- subdivision for her, with which Walsh was, fully acquainted. That Davis, the jamming before, the sale, applied to Walsh to be the security of. Stockton for com» plying with the terms of payment, provided Stockton purchased the house and garden on behalf of the wife oí Davis, which Walsh agreed to do. That both Davis and wife, as well as Walsji- and Stockton, attended the sale; that Stockton bid for the subdivision, including the house and garden, and it was struck off to him for the sum of, ¿8155, that being the highest bid for the same; and that Walsh became, the purchaser of the other two subdivisions, giving for the one <£90, and for the other J83. That Walsh, Dugan, and others, well knew that Stockton bid.'for the wife of Davis; that this was repeatedly mentioned, and.that publicly, during the auction, and while he was bidding for the property. Thai by the terms of the sale, one-third of the purchase money was to be paid in three months from the day of sale, one-third in six. months, and the other third in nine months, and that the sale was made on the loth of June 1792, before which time Wilson and Lemmon had made their sale to Dugan, although they did not execute the deed to Dugan until some months after. That Stock• ion executed and delivered to Dugan a bond, with Walsh his surety, for payment of .the purchase money for the subdivision purchased by Stockton for the wife of Davis; the money to pay for which was to be furnished and provided by Davis; and that Walsh executed and delivered to Dugan?, 
      bond, with Stockton his surety, for the purchase money of the other two subdivisions. That Davis and wife have, had the constant actual, possession of tfie subdivision so bid off by Stockton, ever since the said purchase. That the day of the sale, Davis was at the house of Stockton, when Dugan was there with bonds to be executed for the. purchase money, and Davis observed that they ought to state the money was for the house and garden, but Dugan replied, it was immaterial, for that he would at any time give a bond for the conveyance thereof. That sometime after the sale, Davis called on Walsh, and told him he thought it time for Dugan to give his bond to convey the house and garden; for that he, Davis, had procured a great part of the sum first to be paid, and that he Davis wished to have a bond for the conveyance before he made the payment; whereupon, after a short pause, Walsh replied, to the amazement of Davis, that he, Walsh, had got a. bond for the conveyance, and that Danis . had nothing to do with it. Davis then asked Walsh what he meant by having a bond of conveyance, as he, Walsh, was only the surety for Stockton who purchased it in trust for the wife, of Davis? Walsh replied, he meant that Stockton, had given it all up to him. Davis then told Walsh that when the first payment became due he expected to make the payment, and that he did not want Walsh to pay for him, to which Walsh answered with warmth that Davis had nothing to do with it. That Stockton (as Davis. and wife are informed and believe,) being about to leave this st.ate and go to Pennsylvania, where, he now resides, ' was induced, in order to secure Walsh, to direct that Dugan should give the bond of conveyance to Walsh, Jfalsh at the same time assuring Stockton that no advantage, should be taken thereof, but that whenever Davis paid the purchase money, the wife of Davis should have a deed executed to her for the same. That some months after the .sale, Davis went to Dugan, and offered to pay him 8200, which he had then ready to pay him, and to give Dugan security for the residue, provided he would give up the, bonds which Stockton had executed, with Walsh as his surety, and offered to make payment of the residue in sixty days, but Dugan declared he could dp nothing without consulting Walsh, and that he, Dugan, must make the conveyance to whomsoever Stockton directed, saying that he did not know Davis in the transaction, altho’ at the sama time Dugan acknowledged that he knew Stockton purchased the property for the wife of Davis; and that Stockton had so mentioned in his, Dugan’s presence, to Walsh, and also that Stockton made ft ulsh promise that she should have it when Davis paid the money for which it was purchased. That Davis was always willing and desirous to have paid the purchase money according to the contract, and several times applied to Dugan on the subject, and also to Walsh as being the surety, for payment of the same. That Dugan always alleged that he did not know Davis in the business, and that he had conveyed, or must convey, the property to Walsh; and when Davis applied to Walsh, he insisted Davis had nothing to do with the property, and that it belonged to him, Walsh. That Dugan hath actually conveyed the house and garden, and the lot on which they are situate, to JFahh; and that sometime in June last Walsh claimed of Davis £30, as rent for one year lor the premises, and distrained for the same, altho’ Davis sailh, that he never rented the premises of Walsh, or agreed to pay him any rent therefor, but always claimed the same in consequence of the said purchase; and that Davis was obliged to replevy the goods so distrained by Walsh. That Jf'alsh hath instituted an action of ejectment in the county court of Baltimore against Davis, to recover the possession of the four lots No. 951, 95,9, 953 and 954, which include the property so purchased by Stockton. That within the last thirty days JFalsh also served Davis with a notice, as if he had been a tenant of Walsh, to leave the premises within thirty days from the notice, in order to institute proceedings against Davis under the act, entitled, “An act to provide a summary mode of recovering the possession of lands and tenements holden by tenants for years, or at will, after the expiration of their terms.” That on the 15th of February last, Davis did actually tender to Walsh the whole amount of the principal and interest of the purchase money, for, which Stockton purchased the property, and demanded that Walsh should convey the same to the wife of Da,vis, and that Walsh refused to receive the money, or execute a conveyance. Prayer, that Davis and wife may he quieted in their possession of the premises; and that Walsh may be compelled by a de ■ cree to convey to the wife of Davis the property so purchased by Stockton for her use. Prayer also for sulpena, 
      and for an injunction, &c. The answer of Walsh, the de-i fendant, admits that Davis applied for the, benefit of the insolvent law, and that the trustees named became entitled to his estate as the bill alleges, but the defendant hag no knowledge whether any agreement ever, took place between the complainants and Dugan, that in case the pur-, chase money was obtained by them he was to convey the. same to them. The defendant admits that the lots of ground mentioned were sold by Dugan at public sale as stated; anti the defendant saith, that the complainant., Mary, came to him previous to the sale thereof, and mew, iionetl to him that she and her husband were desirous o£ purchasing that part on which,the improvements of.-a smalL house and. garden were made, but expressed her, apprehensions that they would be unable to accomplish the payments at the limited, periods, and asked the defendant if-he would consent, to take the same to-his own account, in case they were so unable, and- the defendant did consent .to.do so. That at the sale of the property, which was distributed into three parts, the defendant became the purchaser of- two third part's thereof, and that Stockton became the purchaser of the remaining third part, including the house and garden, as the defendant was informed and believes, in trust for Davis, in the event of his making the payments. in 3,6-and 9 months, that being the time,limited -at the sale thereof. That the defendant became the security of ■ Stockton for. the purchase money of the third part, to Dugan, and at that time also informed Stockton that he had made the promise, herein before stated, respecting the same, to Mrs. Davis. That before bonds for the co.nvey-. anee of the lots of ground were executed by Dugan, the complainants severally came iq the defendant, and informed- him that they had determined not to have any thing -to do with the purchase made by Stockton, and requested the defendant to take the whole upon himself, and obtain a bond in his own name for,the conveyance thereof; at that time also the defendant consented to take the same upon himself, but observed to the complainant Davis, that it would be proper for him and- Stockton to call on Dugan and request that the bond of conveyance should be executed to the defendant only. That shortly after this conversation, Davis and Stockton informed the defendant that they had waited on Dugan for that purpose. Tlipt- at another day, previous to the execution of the bond of conveyance, Davis, in conversation with the defendant relative to the property, and in order to induce the defendant the more readily to take the purchase upon himself, informed him that Peter Lilzingcr, the proprietor of the ad4 Joining ground, would sell the same on reasonable terms, and advised the defendant to purchase the same, as he would thereby obtain the whole front on both sides of the Street; and the defendant did accordingly purchase the opposite front from Lilzingcr. The defendant afterwards obtained the bond of conveyance in his own name; that he was pressed to take the same both by Stockton and Davis« That at the stipulated periods he paid the purchase money to Dugan, and has since obtained conveyances in fee for the whole of the property; and at the request of Stockton executed to him a bond of indemnity against the payment of the purchase money to Dugan. That Davis, at the time of the sale of the property, was considerably indebted to the defendant fer goods sold and delivered, and that on that account be is now indebted to the defendant in the sum of more than £~¡Q. That after the defendant made the first payment for the property to Dugan, he informed Davis that he must pay ¿330 per annum rent. That he always considered himself entitled to recover that sum, and that Davis was his tenant at that rent, and compellable to the payment thereof by distress. That under this impression, and in consequence of Davis’s refusal to pay the same, he levied a distress, and instituted such process for the recovery of the possession of the property, as stated ia the bill. The defendant doth positively deny that he either, directly or indirectly, ever promised or gave any other assurance to the complainants, or either of them, or to Stock-ion, that whenever they paid the purchase money he would execute a conveyance for the third, or any other part, to Mary one of the complainants. That he does not believe any tender of money, on account of the pretended claim of the complainants, was ever made to any person, until nearly two years after the sale, when Davis came to the defendant’s house, and told him that he came to tender him money for the property now possessed by the complainants, when the defendant answered, that as he had neither sold, nor promised to sell him, auy ground, he could riot receive any onjhat account, but would be thankful to receive and apply the same to their credit for goods sold to Mrs. Dash two years before, which Davis refused, observing that that account should be paid in due time. That since the property hath been in the possession of Davis, the name hath suffered great injury, and the defendant has reason to apprehend, and doth believe, will be almost wholly ruined if suffered to remain with him; and the defendant is restrained from taking the possession thereof. The defendant doth positively aver, that he hath never, since the purchase of the ptoperfy, promised or bound himself to permit the complainants the privilege of paying up the principal and interest of the purchase money, and taking the property; and expressly denies any trust whatever for their benefit. He denies the fraud and oppression charged by the complainants, &c.
    A motion to dissolve the injunction was made by the defendant, which being submitted,
    Hansost, Chancellor, stated, that the bill and answer were by him read and considered, and it appearing that the equity stated in the bill, on which the injunction was obtained, is fully denied by the answer; and there being ncs circumstances to induce the chancellor to continue the injunction until final hearing, or further order, it is adjudged and ordered, that the injunction be, and it is hereby dissolved.
    
      Commissions issued for taking testimony, which were executed and returned, containing the following evidence.
    
    
      Joseph Stockton He affirmed that in the year 1793 he was present at the sale of a house and lot situated on Hampstead Hill, at the head of -Bond-street, in the city of Baltimore, that the sale was made by order of Cumberland Dugan, the owner of the property, under the superintendence of major Yates, an auctioneer; that at the time of the sale, the premises were divided into three parts or parcels; that the affirmant, at the instance and request of Mary Davis, one of the complainants, with the knowledge and approbation of her husband, the other complainant, became the purchaser of the first part or parcel of the premises, whereon a house and garden were erected, and laid out; that at the time of the sale it was publicly announced by the auctioneer, and was understood by the defendant, who was present, that the affirmant made the, ptirchase as agent, and for the use of the complainants, that the defendant became the purchaser of the other two lots, parts or parcels of the premises; that the affirmant bid ¿£ I SO for the lot which be bought, and that the defendant bid a larger sum (how much the affirmant cannot recollect,) for the two parts which he bought. That the affirmant and Walsh became mutually bound for each other unto Dugan, for the price of their respective purchases. That a few days after the sale, when the affirmant was about to leave Baltimore, it was agreed, by and with the knowledge and consent of all the parties, that Dugan should convey the whole of the premises, as well the lot purchased by the affirmant, as the other two lots,, to the defendant; that when such conveyance Was agreed upon, Davis declared it was done in confidence, and, as the affirmant understood, upon trust, that so soon as the defendant should be relieved from his suretyship on account of the lot purchased by the affirmant, the same should be vested in the complainants, for whose use it had been purchased; that the affirmant directed such conveyance to be made accordingly, and never undei-stood or in-, tended that the same should convey any other property or interest in the lot by him purchased as aforesaid, but on the terms, and for the purpose of indemnifying the defendant against the security into which he had entered as aforesaid. That at the time of entering into the security, mutually for each other, to Dugan, the affirmant received a bond From the defendant in the penal sum of ,£600, conditioned to indemnify this affirmant against the bonds which he had executed to Dugan for tiie purchase of the premises; that some time in the year 1T95, subsequent to the commencement of the present suit, the defendant call-«d upon the affirmant in Philadelphia, (where the affirmant then lived,) and produced and delivered up to the affirmant the bonds executed to Dugan, whereupon the affirmant delivered to the defendant the bond which the affirmant had received from him to indemnify the affirmant as aforesaid. That the complainants were in possession of the premises at the time of the sale, and continued so when the affirmant left Baltimore, with the knowledge, and as he believes with the approbation of the defendant.
    
      
      'James Gottier. He deposed, that sometime in the year 1793, sOóh after the sale of Dugan’s property, the depo-' hent, and 'Ebeñezer Graves, were requested by the complainants to make a tender of the purchase money of the house and lot; which "Stockton had bought for them at the said sale; that the complainants accordingly gave to the deponent and Graves the sum of 33135, With an additional sum for interest, in order to make such tender, That the deponent and Graves made the first tender of the money to Dugan, but he said that he had already conveyed the premises to Walsh, aiid supposed that he would take the money. That the deponent and Graves then proceeded to the house of Walslv, and informed him that they were come to make payment for the house and lot which Stockton had purchased for Davis and his wife, who had given the money for that purpose; that the deponent and Graves tendered the sum* and interest aforesaid, and requested Walsh to count the same; that Walsh declared he had no doubt about the quality or quantity of the money, but observed that he had bought the premises for himself, and did not mean to sell again
    
      Ebeñezer Graves, lie deposed to the same effect’ above deposed by Gottier, fixing the time of the tender to the' 15th of February 1794, as made to Dugan; and on the next day to Wralsh.
    
    
      ■ Colonel 7liornas Yates-. He deposed that at the time he went to make the sale for Cumberland Dugan, the complainants both expressed their desire to become purchasers of that part of the property which included the house and garden, and that they should request Mr. Stockton to purchase the same for them; provided it did not go too high. He thinks Walsh and Dugan were present at the time of this conversation. The lots were laid off in three divisions, one of which division was to include the house and garden, to accommodate the complainants if they were able to purchase, and with the consent of Dugan, and made from the deponent’s recommendation, to Dugan at the desire of Davis. It was understood by the deponent that Stockton was bidding for the said part for Davis or wife, and believes it was so understood by Walsh and Dugan, as it was a subject of conversation at the time of the sale, and Dugan had consented to the division to accommodate Davis in the purchase, but he has im knowledge of their being acquainted with Stockton's 
      bidding for Davis or wife, other than his belief, founded on the circumstances already stated. He heard Walsh, sometime after the sale, inform Dugan that ho had become security for Stockton, who being unable to pay, had directed the conveyance to be made for said part by Dugan to him Walsh.
    
    
      Cumberland Dugan. He deposed that he purchased the property under an agreement to let Davis have the same, provided he paid the purchase money, and £50 to the deponent for his trouble, within twenty months from the day of sale; and if the purchase money, and the £50, were not paid by dial time, the property was to be sold by the deponent, and the proceeds of the sale, if it exceeded the purchase money, and £50, were to be paid to Davis. That Davis and wife did express their desire to the deponent to preserve the house and garden for themselves, but he does not recollect that they mentioned it to Walsh or Yales. He does not know who applied to him for the purpose of subdividing the lots, but it was concluded upon between him and Col. Yates, that the property would sell better it it was so subdivided; and believes the subdivision was so made, in order to afford the complainants, or one of them, an opportunity to purchase in the division containing the Inuse and garden. He does not recollect that it was declared. at the time of the sale, that Stockton hid for the said subdivision foe the use and benefit of Davis and his wife, or one of them, hut immediately after the sale Stockton said he had purchased for Davis and wife, with an intention to let them have the property, if they complied- with the terms of sale; but he does not know whether the same was known by Walsh. That immediately after the sale, the deponent called on Walsh and Stockton to execute bonds agreeably to the terms of the sale, which they accordingly did, being securities for each other; and the deponent told them they might have bonds of conveyance when they pleased. Some days after the taking of which bonds, Stockton called on the deponent, and directed him to execute a bond of conveyance for the whole of the said lots to Walsh. The deponent did so, and the purchase money was paid to him by Walsh, to whom he executed conveyances. That sometime before the executing the said bond of conveyance, Davis, or his wife, called on the deponent, and told him it was perfectly agreeable that a bond of conveyance should be given to Walsh for the whole of the property; and the deponent understood that the complainants and defendant were then on good terms. He believes that Walsh did know, or had been informed, at or before the time when the bond of conveyance was execut-. ed, that Stockton purchased the property for Davis or wife. He believes that Davis called on him a short time before the first payment became due, and after the bond of con- . veyatice had been given to Walsh, and said he would pay him 8200, and give him security for the remainder, but the deponent said he could not do any thing in it, because the bond was nearly due, and he expected to get the whole, when it became due.
    
      Job Gurretson. He deposed- that it was publicly said at the sale that Stockton bid for Mrs. Davis; that the der ponent so understood it. himself, and supposed it to be so, Understood by others, from the general- conversation, and he believes it was so understood by Walsh and Dugan, and that Dirgvmtold the deponent so. That at the time of the. sale, Stockton told the deponent that Walsh had agreed ta be security for him if he bought the property. That Dugan, told the deponen.t that he. supposed Walsh would be security for Stockton. Walsh afterwards said to deponent, he. thpught it was a pity that Davis and wife, should be put out of- the property, and that he had become security for. the payment of the money, and that when they paid the. money the property was theirs. That a few days before, Stockton went away, Dugan told the deponent that Stock* ton had a bond of conveyance, and that he might, deed or. assign it to Walsh, but whenever the money was paid, the, property would be theirs, meaning Davis and vvife. That. Stockton, a little before, informed the deponent, that he was a good deal uneasy about his being security for Davis. for the purchase money of the said house and garden; that he was going to leave the. place in a. few days, and had "a mind to let Walsh have it, and whenever Dav.is and wife, •paid the money, Walsh would let them have the property. On the deponent informing Dugan of this conversation, the. preceding conversation with Dugan took place.
    It was admitted that Davis remained in possession of the house and garden, until he was turned out by a writ of habere facias possessionem, issued on a judgment at law obtained' ^gainst him at the suit of Walsh's lessee. That Stocktm\ 
      removed out of the state shortly after the purchase, and before any part of the purchase money was paid. That the sale made by Dugan was after the time of the purchase made of Davis’s trustees.
    IIansojt, Chancellor, (December term, 1805.) The pause standing ready for hearing, has been debated by the counsel on each sidc, and the whole by the chancellor carefully considered.
    How often does the chancellor think it proper to mention the principle on which the statute of frauds was fram-' ed, and principles in this court established. There is ip this case no agreement, that the chancellor perceives. Is it necessary to say that a contract is a stipulation or agreement, or understanding, between two persons, each of whom is bound to do something on his part, and that if one is not bound, he has no right to consider the other as bound? It is true, that an express contract may be so made, as that one shall for a consideration be bound, and the other pot bound without his own will. For instance, A and B make this agreement — A binds himself for the consideration of 10 dollars, before the 25th of December, to procure to B 10 hogs, for which, if B likes them, and chooses to take them, he shall pay at the rate of §8 per 100 wt. In this case agreement is clear, A is bound to bring the hogs; but it is at the election of B to take or reject them as he thinks proper, losing his §10. But if there, be no consideration to A, it is not to be supposed that he is bound to bring the bogs, and B not bound to take them. This may indeed be considered as illustrating by the thing itself. Let, it be said then, that in the present case there was, on the part of the complainants, no contract. There was no actus contra aciitmj there, was no consideration flowing from them; there was nothing binding on them.
    It has been contended, that Stockton only acted as trustee for the complainants, and purchased for them. But is there any proof, or even allegation, that he purchased with their money, or that they were bound to provide the money, or take the purchase from them? It has been insisted too, that as he made the contract in his own name, the property was to be considered as a security in the hands of him, the nominal purchaser, and that as this was the case, the time stipulated for redeeming it was to be considered in the same light as the day of redemption mentioned ip a common mortgage. There is no analogy, and it is not to be conceived that this court ought to determine, that although there was np consideration flowing from the complainants, and although there was nothing binding on them, Stockton should be obliged to convey to them at any time, when they should find it convenient to pay the money; am} that at any period after the time stipulated, whoever should hold the property from, by, or under Stockton, after even twenty megne transfers, should hold it subject to the wilt of the complainants to redeem it at any time. How would such doctiine comport with the interests of a young thriving town?
    The chancellor does not conceive there is any solidity in. the observation respecting answers in this court. The distinction is plain. Where a defendant first admits the allegations in a hill, and then sets up some distinct after transaction, by way of ,avoidance, he is bound, to prove that transaction. But where a man is called on by a bill in tins court to say whether or not there was an agreement between him and the complainant, and what it was, his answer, with respect to the nature of that agreement, is to be taken altogether. For instance, says the bill of A. — B contracted with me, by parol, for the consideration, of $50C0, to sell me 300 acres of land in Baltimore county, of which he, put me in possession, but I was to have credit for five, years without paying interest. B, in his answer, admits that there was a parol contract for the land, and possession given as stated; but instead of having credit as aforesaid without interest, A was to give him bond, with security, .for paying with interest in tl^ree years. Will common sense suffer a construction as, that because B admits^ a contract and possession he must be considered to have, admitted every thing necessary for A’s purpose, unless hq can prove, on commission, that the contract was as stated, in the answer? No! the absurdity is glaring. But if B1 had admitted the matters stated in the bill to be facts, but went on and said that afterwards, A, for'the consideration of $100; had agreed to give up the purchase, &c, that {part of the answer must be proved on commission, unless A, on interrogatories, had admitted its truth.
    The chancellor thinks proper to make a remark, which ought to have come before — supposing Stockton really bound to convey on receiving the purchase money on or before such a day. inasmuch as the complainants were under no obligation whatever to take the purchase off Stockton’s. hands, and inasmuch as he had no valuable consideration, the utmost they could claim in reason would be to take the purchase off his hands by paying the money on the day stipulated. Suppose this case — they do not bring him the money on that day — property has tallen so much in value that it is not for their interest to take it on or before the day. lie cannot compel them to take it. He does not wish to keep it, but to get free of it on the best terms. He sells it for S500 less than it cost him. Ten years after this the property is worth three times as much as it cost Stockton. Then, indeed, Davis and wife, whether or not they have money, can contrive to redeem, or claim it to advantage, provided it can be so redeemed or claimed. AYell' — the purchaser from Stockton, or the purchaser from that purchaser, or the purchaser from the second purchaser, is obliged, on Davis’s application, to convey him the property on his paying, Sic. It is really an affront to common sense to say that Davis’s claim ought to prevail.
    The chancellor has given his ideas at large. He might' refer to decisions of the court of appeals, which if there be ■a judgment to be formed from decrees, the reasons of which are not assigned, are more strict with respect to agreements set up against the intent of the statute of frauds than the chancellor has ever seen.'
    The chancellor indeed has always thought that it would have been much better to construe the statute of frauds strictly against contracts. However he has always endeavoured to conform to decisions, which on any principié might be considered as binding on him. lie has never intentionally decided against any decree of the Lord Chancellor of England, made before the revolution, or even any decision of Chancellor Rogers, which hath not been controverted, unless on a bill of review. As to the present case, he is satisfied, that by decreeing a dismission of the bill, he will contravene the principle of no decision in equity, which ever hath been given, Decreed, that the bill of the complainants be dismissed, and the defendant be dismissed, but without costs.
    From which decree the complainants appealed to this court. And (he case was argued before Chase, Ch. J. Nicholson, and Gantt, J. by
    
      Martin, for the Appellants;
    and by
    
      Harper, for the Appellee*
    
      
      fa) Martin, (Attorney General,) fpr the complainant!^ and T¥incjjcsUr,\ for the defendant?
    
   The Court

Reversed thd decree of the court of chancery, and decreed that the apipellee convey the land in question to the appellants, in fee simple, and pay to them all the costs in the court of chancery, and in this court, and all the costs incurred by Davis at law in defending the action of ejectment prosecuted against him by the appellee, and that the appellee restore the possession of the land to the appellants. Also that an account bé taken of the principal money and interest paid by the appellee for the land, at the respective times he paid the same, and (hat the appellants be charged therewith; and that an account also be taken of the rents and profits of the land, which have accrued and been received by the appellee since he took possession thereof; and in stating the account between the parties, the appellee be charged therewith at the respective times he received the same, with legal interest thereon; and that the balance of the money which may be due, on the adjustment of the said account, be paid to the party to whom it shall be due, whether appellants or appellee, at the time the appellee shall convey the land. And that the chancellor make all necessary rules and orders for having this decree carried into full and complete effect.

DECREE REVERSED.  