
    Hayward vs. Carroll, et al.
    
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    The court íniy1«íSii*H»aL te-oía ana probata.
    
    Appeal from the Court of Chancery. The bill was fib ed by R. Chamberlaine, G. R. Hayward and W. Hayward, of whom If. Hayward is the only survivor, (now appel-against D. Carroll and C. Carroll of Carrollton. It states that D. Carroll, having* mortgaged certain lands to C. Carroll of Carrollton, for money due to him, afterwards greatest part of such lands to R. Chamberlaine, and bound himself, by his bonds duly executed, to-make a title free from all incumbrances, on payment of the pur-c*iase money; for which Chamberlaine gave twelve bonds, at certain periods. That as of these latter bonds were assigned by D. Carroll to C. Carroll, as Cl Garroll’s debt, secured by the mortgage, amounted to. That afterwards R. Chamberlaine assigned to G. R. Hay* ward and TP, Hayward, the aforesaid bonds of conveyance,ant^ they took up the bonds assigned by D. Carroll to C. ««.Carroll, by giving their own to C. Carroll, on condition that he would assign to them the said mortgage deed, which ^e accordingly; and they pray by their bill that they may have the benefit of this mortgage and assignment, for the purpose of compelling j0. Carroll to redeem the mort-s0 assigned to them, in the same manner as C. Carroll might if he had not received their bonds, and given them an assignment of such mortgage. The assignment of tbe mortgage stated in the bill is in the following words:. of“Whereas Robins Chamberlaine has contracted tó purchase of Daniel Carroll of Baltimore, part of a tract of' jan(i on which the said Carroll now resides, and the whole of the said tract is either mortgaged to me, or the title to-part of it still remains in me, I do hereby release all my right, claim and title,- to the part of the said land contracted for by the said Chamberlaine, to Messrs. George Robins-Hayward and William Hayward, of Talbot county, for value received of them. Witness my hand and seal this 21st day of March 1803. Ck. Carroll of Carrollton, (l. s.)
    Test. John Edmondson.'’
    
    The answer of C. Carroll admits the execution of the-original paper, but denies that he ever intended to assign the mortgage to the Haywards. The answer of D. Car-rol! denies the assignment, and insists on the extinguishment of the mortgage by the payment of the mortgage debt. Testimony was taken under commissions issued for that purpose; but it is not material to state it.
    Kilty, Chancellor, (February term 1815.). It appears-that the complainants,©. R. and TP. Hayward can have no l ight to relief on the bonds of conveyance, as R. Cham-berlaine had no right to assign them after his insolvency* and the lands mentioned in them were returned in his schedule as his property. The chancellor is of opinion that the prayer for relief under the mortgage, cannot be granted, although there may have been some misapprehen-¿ton on the subject, and G. JR. and W. Ilaywarl may sustain a considerable loss by the transaction. There is among ¿he insolvent papers one purporting to be a receipt from 47. Carroll for the bonds of 1L Chambcrlainc, and a bond of D. Carroll, and a copy of (hat receipt, which may be the one referred to in D. CarroWs answer, but it is not marked as filed, and it does not state what those bonds were received for. There is nothing to show that these bonds were taken as a security additional to the mortgage, and the chancellor is of opinion, that if C. Carroll had thought proper to assign the mortgage on receiving good bonds from W. and G. Hayward, he ought to have returned the bonds which he had received from I). Carroll, and that both aught not to have been assigned without his consent; which opinion appears to correspond with that of C. Carroll himself; and there ought to be the strongest proof of both being assigned as a ground for the relief claimed by the bill. There is reason to believe from the evidence, that the exchange of the bonds was agreed to at first without reference to the mortgage, and that the release or assignment of the mortgage, or apart of it, was proposed and agreed to after-wards. Decreed, that the bill be dismissed. From that decree W. Hayward, the surviving complainant, appealed to this court.
    The cause was argued before Chase, Ch. J. and Eam.e and Doksey, J.
    
      Martin, (Attorney General,) for the Appellant
    
      Pinkney and Harper, for the Appellees,
    contended, L That the paper called an assignment was merely a release; 1st. From its express words. 2d. From its objects as apparent on the face of it. 3d. From the limitation or restriction of its operation to a part only ol the mortgaged premises. To release a mortgage, as to a part of the mortgaged premises, in favour of one who had purchased that part, is a natural and common operation; but to assign a part only ef a mortgage is at least a very novel thing.
    2. That no parol evidence can be allowed to vary or in any manner aifect the operation or construction of this paper; it not being a case of latent ambiguity or of mistake, which chancery can correct.
    3. That if this paper were an assignment in the most express and formal words, it could not operate in favour of the .complainants as assignees- — because, as assignees they cannot be in a belter situation ;!¡an C. Carroll, the mortgagor and assignor, but must be affected by all the equity which would operate against him, in favour of the mortgagor. And the assignor in this case could not have a decree for a foreclosure or salo, because the mortgaged debt was paid. This payment was effected by the bonds of Chamberlains, assigned to the mortgagor by I). Carroll, and paid to the assignee by the Haywards. This payment was Hot the less perfect or effectual for being made on bonds instead of money. It equally discharged the mortgage and must forever protect the mortgagor.
    4. That the complainants, not having produced the.bonds assigned to them, nor in any manner accounted for them, are to be considered as having received payment of them, and consequently as satisfied for the mortgage debt. Therefore, if they were assignees, and not affected by the payment of the mortgage debt to their assignor, they must still be precluded from the relief they pray by this payment to themselves.
    They also contended that D. Carroll having by his answer denied that there was any assignment, the complainants were put to the proof of it, and that no such proof was made. The admission of the paper by C. Carroll cannot make it evidence against D. Carroll. It is well established in chancery that the answer of one defendant cannot be evidence against another defendant. Wych vs. Meal,Z P. Wms. 311, (note.) Anon. 2 P. Wms. 300. 2 Eq. Ca. Ab. 67; and 1 Harr. Chan. Prac. 185.
   Dorset, J.

delivered the opinion of the Court. William Hayward and George R. Hayward, who were complainants in the court of chancery, claim the benefit of a mortgage executed by the defendant Daniel Carroll, to Charles Carroll of Carrollton, the other defendant, on the ground that the latter had, for a valuable consideration, assigned the same to them; and in their bill they insert a copy of a paper, which they call an assignment, purporting to be executed by Charles Carroll, and attested by John Edmondson as a witness. Charles Carroll, in his answer, admits the execution of the original paper, but denies that he ever intended to assign the mortgage to the Haywards. The defendant, Daniel Carroll, by answer, not only positively denies the assignment, but insists on the extinguishment of the mortgage by the payment of the money.

It becomes necessary to inquire, whether the assignment alleged by the Haywards to have been made in their fa-vour, is established by legal evidence.

The answer of Charles Carroll admits the execution of the original paper, of which a copy is exhibited, and therefore, with reference to him, the court have a right to decide on. its operation. But as Daniel Carroll, by his answer, denies the execution of the assignment, the fact of such assignment is by him put in issue, and must therefore be proved. Where is the proof of this fact? Is it to be found in the admission of Charles Carroll, confessing the execution of the paper termed an assignment? It is not; because it is an established principle of evidence that the, answer of one defendant cannot be read in evidence against a co-defendant.' If the complainants were interested in, establishing a fact by the evidence of a co-defendant, they might have examined him as a witness, on interrogatories, and the witness then would have been subject to the cross examination of the other defendant. To withhold from 'inch defendant the privilege of cross examination, would l>e unjust, and this injustice must necessarily result from the practice of permitting the answer of one defendant to be read in evidence against a co-defendant.

Let us proceed one step further, and' see whether the fact of assignment is proved by Edmondson. He proves that the hayioarda requeued him to receive from diaries Carrol/an assignment of the mortgage in their favour, and that Charles Carroll did execute such an assignment, and delivered it to the witness, who afterwards gave it to the. Haywards.

The assignment here alluded to has not been proved as an exhibit in the cause. That Charles Carroll executed a paper, which was deemed by the witness to be an assignment, is proved. Hut as the paper was in existence, its execution might ar.d ought to have been proved; and even the copy exhibited by the complainants could not be evidence if it had been proved to be a true copy, (and of which there is no proof.; unless the original was lost, destroyed, or in the possession of the adverse party. The testimony of this witness, as well as lite allegation in the complainants’ bill, shew that the assignment did not rest in parol. As the contract, therefore, of the parties, was reduced to writing, it can only be proved judicially, by the production and proof of the written agreement, or by the admission of the defendants in their answers; as neither of those facts exist, we are of opinion that the pretended assignment is not proved.

It was urged by the appellant’s counsel, that even this view of the case was not fatal to the claim of the complainants, inasmuch as the assignment to them by Charles Carroll, of Robins Chambedame’s bonds, must be considered in equity as an assignment of the mortgage. Supposing, for the sake of argument, (and we are only prepared to make the admission for that purpose,) that such would be the effect, still it is evident that the chancellor’s decree ought to be affirmed. The complainants sought relief on the ground that Charles Carroll, by an agreement reduced to writing, did assign to them the mortgage. This allegation is put in issue. The complainants fail in establishing their equity as displayed in their bill, but prove a case entirely distinct and different from it. We say entirely different, because the bill, so far from relying on the assignment of Chamberlaine’s bonds as the foundation of equity, does not even state that C. Carroll had possession of them. Can this new case, arising out of facts, not one ©f which were put in issue by the bill, entitle the complainants to a decree? If we were to answer affirmatively, we should prostrate that long established rule which declares that the complainaut in his bill must put in issue whatever he intends proving, otherwise he will not be permitted to give it in evidence; and therefore it is that the court of chancery pronounces its decree secundum allegata and probata, to shield the defendants against the fatal con» sequences of surprize.

As there is no legal evidence of an assignment of the mortgage in the record, it follows that the chancellor did elT jn dismissing the ■ complainants’ bill. His decree ■ought, therefore, to be affirmed.

Chase; Ch. J.

delivered his opinion, affirming the ele» cree of the chancellor upon the points arising under the ■decree,

DECREE AFFIRMED.  