
    *President and Directors of the Branch Bank at Columbia, and Others v. John Black and William Hall.
    A mortgaged his bouse and lot to 13, to pay a debt of $1,500. On foreclosure and sale by the commissioner, C at the request of A bid offthe premises at $4,500, paid the $1,500, was discharged from the balance by A, and took title, with an understanding between A and C that upon C’s repaying the $1,500, the property should be re-conveyed to A. The judgment creditors of A tiled their bill against C to compel him to pay into the hands of the commissioner the balance of the bid of $4,500, to be applied to the judgments. Held that the judgment creditors had no right to enforce the bid? and the property decreed to be sold, first to repay C and the balance to be applied to the creditors of A according to their legal priorities. The answer replying to the allegation that the defendant was indebted to A the balance of the bid, stating all the circumstances of the understanding between A and C and denying that C owed A any thing, was held conclusive, until rebutted by evidence on the part of the complainants. Where the answer denies any allegation in. the bill, the complainant must prove his allegation.
    The complainants stated in their bill that they were judgment creditors of Dr. B. F. Harris, and that Harris owned a house and lot in Columbia, which had been mortgag'ed to one Goss. That Goss filed his bill to foreclose the same, and obtained an order to sell the premises. The mortgage had been given for the purchase money previous to the judgments obtained by the complainants. The premises were sold by the commissioner in obedience to the order, and the bill stated that the defendants, Black and Hall, became the purchasers, at the price of §4,200, and that they paid to the commissioner §1,569, the amount of the decree under the mortgage for which it was sold, and that the balance of §2,631, remained unpaid by the defendants to the said Benjamin F. Harris, and that the said Harris was much involved; that should he procure payment of the said balance from the defendants, their judgments would not be paid. The bill then prayed that the defendants should be compelled to pay this balance to their judgments, and that they should he enjoined from paying it over to said Benjamin F. Harris, until there was a final hearing of the cause; andthat the court would grant such other relief as it should deem proper.
    The defendant William Hall stated in his answer, that he was ignorant of all the allegations contained in the bill except as to the fact of his becoming a joint purchaser with Black of the house and lot mentioned in the bill, at the request of one Andrew Wrallace and the defendant, John Black, for the benefit of the said Harris, to prevent the same from being sacrificed by a forced *sale, and thereby to enable Harris to sell it at private sale and give a credit, by which means it was supposed he could obtain a fair price for it. It was also proposed that the property should be held as security for the discharge of the mortgage and costs, until Harris should make a final disposition of it. With this understanding Black bid off the land for himself and Hall at the price stated in the bill; but it was never supposed or intended that an absolute purchase was made, or that the property was made, or that the property was bid in for the defendants; on the contrary that it was publicly understood, that it was bid in for Harris, and that no more was to he paid than sufficient to satisfy the mortgage. And he, Hall, distinctly considered himself as assuming the situation of the mortgagee ; and in furtherance of that intention, took an assignment of the mortgage and paid the money; and so far from supposing that he was indebted to Harris, he had been urging Harris to take measures to pay him the debt he owed him. He by no means admitted that he had a balance in his hands due to Harris, or that he was the owner of the property, further than his lien for the sum advanced as above stated. The title made by the commissioner to Black and this defendant was executed without*his knowledge whilst absent in England; but he always understood and believed that it was executed merely as a security for the money paid by the defendant, for one half of which Black was liable to him. That he was willing to reconvey, or comply with any directions of the court, upon the money he had advanced being repaid him.
    Black, in his answer, said he knew nothing of the judgments and debts claimed by the complainants. He then stated the facts in relation to the sale of the house and lot in question, and that he was induced to become a joint purchaser with William Hall at the earnest request of Dr. Harris, who represented his case as one of great *distrcss, r*g/jg and that a forced sale of his property would necessarily be at a L great sacrifice and would utterly ruin him ; that if it was bought in for him he could make an advantageous private sale on a credit; and.that he would appropriate the proceeds to pay his creditors; and as an inducement to this defendant, he promised to apply a part to the satisfaction of an execution this defendant bad against him. That he and Hall agreed to buy the premises for Harris, to pay the mortgage, and to wait with him a reasonable time to re-imburse their expenditures; the property still remaining as a security to them for such advances. This defendant paid the costs of the suit of Goss, and had since paid the taxes and some repairs. He was offered a title by the commissioner, while Hall was absent, for the premises, which he accepted ; as he was not aware that that circumstance could, in any way, affect the agreement between the parties; but on the contrary thought it the best plan of securing their lien upon the property, for the money advanced to relieve it from the incumbrance. He further stated, that to discharge the defendants from any supposed liability to the said Harris for the amount of their bid beyond the amount of their mortgage and costs, Harris went to the commissioner and ordered the title to be made to these defendants; and as a final discharge from the balance of the bid, Harris, after consulting with the commissioner for that purpose, gave a receipt which was considered by all the parties as a final settlement of that matter. This defendant claimed a lien on the premises for the sums he had advanced, and for as much as would satisfy his execution against Harris.
    Jan. 1827. This case came on to be heard before Chancellor Thompson, upon the bill and answer. It was understood that what both sides stated was true; and the only question was, whether Hall and Biack were liable to the complainants for the balance of the hid over the sum *due, under the decree upon the mortgage; and when some little difficulty was raised about the facts, the defendants offered to produce the witnesses to prove them, when the chancellor himself declined it; under this impression the case was argued.
    Chancellor Thompson ordered
    the defendants to pay the complainants the amount of the purchase money with interest from the time it became payable, after deducting therefrom the sum of §1,569, paid to satisfy the decree under which the premises were sold; and should there be any legal liens having a preference to the claims of the complainants, they were also to be deducted and paid to the commissioner, to be distributed according to their priority. The costs to be paid by the defendants.
    M’Cord and Preston, for the appellants.
    The facts made by the bill and answer show clearly that the complainants have no lien on any hid made by the defendants for Harris’ property, under the decree to foreclose the mortgage. There is no privity of contract or interest which can entitle the complainants to enforce a contract for Dr. Harris, which he, Harris, could not enforce. The understanding between Harris and the defendants has been strictly complied with by the defendants in every respect, and they never were bound by their agreement to pay more upon the purchase than sufficient to satisfy the lien under which it was sold. The complainants, with a full knowledge of all the transactions, looked on and never interfered, until all matters between Dr. Harris and the defendants were settled. The complainants cannot be known in the transactions, and have sustained no damage by it; as they are in the same situation they were in before the bid, and should not reap an advantage from the loss of the defendants.* The defendants only claim to be reimbursed the value they put upon the premises by relieving it of a debt then pressing. 1 Karnes’ Eq. Sec. 2, Art. 1, p. 137, 156. 1 Domat. B. I. tit. 13. Sec. 1, nemo debet lomplctari aliena jactura. The defendants are therefore entitled to a lien on the premises to the amount of the incumbrances they have removed, the repairs, taxes, &c. The chancellor thought the answers were not evidence; that they did not meet the allegations of the bill. That as the bill did not interrogate the defendants as to the circumstances, their answers, stating the whole case ■were uncalled for, and afforded no evidence in favor of the defendants, and as they produced no evidence, the complainants must have a decree. But in this State the rule of court has abolished interrogatories, and an allegation is tantamount to an interrogatory, and must be answered as such. 1 Desaus. Rep. 150. The defendants could be compelled to answer as to the bid alone, without giving a statement of the circumstances under which they made the purchase. Nothing is stated in avoidance, for the defendants never rendered themselves liable to the complainants. The defendants could only be liable to them through Dr. Harris, to whom they were not liable. There is legal remedy, and equity will assist them but so far as Dr. Harris’ rights go. If one demands equity, he must do equity. The complainants may have the premises sold, but the defendants must be first paid. The case of Hart v. Ten Eyck, 2 Johns. Cha. Rep. 86, was a case of accounts, and it was held that where a person charges himself he cannot discharge himself. He cannot charge himself with $100, and sav afterwards that it was given to him. So he cannot set up a discount to reduce his admissions, not being the same transactions ; but he is compelled to prove his own account, though he has admitted the other. case c'te<^ was one °f a fraudulent administrator.* When the facts are distinct, the defendant must prove the fact he sets up in avoidance. An avoidance which is required to be proved must be something subsequent and dehors that which is admitted or alleged; as if a debt be acknowledged, but it be added “you released it, or 1 paid it, there the release, or payment must be proved.” See note to Hart v. Ten Eyck, 2 Johns. Cha. Rep. 93. 1 Johns. Cha. Rep. 582. 1 Starkie on Evid. 292.
    M’Clintocii, contra.
    The defendants are bound by the deed of conveyance they received, which states the sum they bid. Parol evidence is inadmissible, though in the shape of an answer, to rebut the deed. 1 Desaus. Rep, 155, 333. 2 Desaus. Rep. 145, 570. He also cited 2 Johns. Cha. Rep. 296, 565. 5 Johns. Cha. Rep. 235, 280. A judgment creditor is in equity entitled to attach a judgment debt in favor of the debtor. 7 Johns. Cha. Rep. 208.
    May, 1827.
   Curia, per

Johnson, J.

The case concisely statedis this. Benjamin F. Harris mortgaged a house and lot in the town of Columbia to James Dillet, then commissioner in equity forRichland district to secure the payment of §1,569 due to William Goss. This debt being unpaid, a bill was filed in the court of equity to foreclose the mortgage : in the end a decree was made, ordering the sale of the premises m satisfaction of the mortgage. The defendants were the purchasers at this sale, at the sum of §4,200, and in their answer they state expressly that they became the purchasers at the request and entreaties of Harris, and, on his account, to prevent a sacrifice of the property; that it was agreed on between them, that they should hold it as security for the money to be advanced by them in satisfaction of the mortgage ; and that conformably to this agreement they *paid the commissioner the said sum of §1,569; that Harris gave a discharge to the commissioner for the balance; and that titles were executed to them by the commissioner and delivered to the defendant Black, in the absence of Hall, his co-defendant.

Pending those proceedings, and before the sale of the house and lot, the complainants had recovered judgments against the said Benjamin F. Harris to a large amount, and they expressly allege in their bill, after reciting the sale and purchase by the defendants, that §2,631, “the balance of the amount bid, with the interest, was due to the said B. F. Harris by the said William Hall and John Black, and is still in their hands and unpaid to the said B. F. Harris;” to which the defendants answer, accounting for it in the manner before mentioned. And the prayer of the bill is, that the defendants may be enjoined from paying over the amount to Plarris until the hearing of the cause, and for relief, &c.

In remarking on the defence, the chancellor observes that “no discovery is sought in the bill; there is no allegation calling for or requiring an answer; and that the facts set forth in the answer are altogether gratuitous. It, therefore became necessary for the defendants to substantiate these facts by proof, which they have failed to do.” This circumstance is made the foundation of the decree against the defendants, and taking this as our guide these questions necessarily follow.

1. How far the answer in this case is to be regarded as evidence ?

2. Whether the complainants are entitled to relief in the case made by the bill and answer, according to the facts properly in evidence ?

First. This is a bill for relief and not for discovery, with respect to which it may be admitted that the answer would not be evidence for the defendants; but it may safely be affirmed that there is no case in law or *equity, in which he who alleges an affirmative that is denied is not bound to prove it. Although in equity an answer to a bill for relief is not evidence for the defendant, yet if he deny the facts stated in the bill, it is incumbent on the complainant to prove them.

Let us apply the rule to the case. The complainants allege that the defendants have in their hands a sum of money belonging to Benjamin F. Harris, still due and unpaid; and out of this fund they claim to be satisfied for a debt which the said Harris owes them. The defendants deny, in express terms, that they are in possession of any such fund; and they go on to state minutely the circumstances, from which they conclude that they have not been, and are not bound, to pay the demand of complainants. Now, here are the affirmative and negative; and, according to the rule, the defendants’ answer must stand for proof, unless it is contradicted by evidence which it was incumbent on the complainants to produce.

Second. The question then arises, whether the circumstances disclosed by the answer, and on which the defendants rely, as showing that they had no funds in their hands to which the complainants were legally or equitably entitled, support this conclusion.

It is assumed, that the contract between the defendants and Harris operated as a fraud upon creditors, inasmuch as if the whole purchase money had been actually paid into the hands of the commissioner, it would have been subject to their respective liens. Whatever lien the complainants had on the house and lot, before the sale by the commissioner, was abrogated by that sale ; and the excess would have been so much money in the hands of the commissioner, on which it could not legally attach. The complainants’ judgments were in the common pleas; and neither themselves, nor the officer of that court, could lay hold of it as a reprisal.* The only remedy was, by an application to that court in whose possession it was, if, indeed, the complainants had a right to it; but until that application was made, Harris must have had unlimited control over it. The demand upon him there was satisfied; and without the interposition of any other claim, the commissioner could not withhold the fund from him. He might have given it away, or made any other disposition of it that his caprice might have suggested. The complainants were, in the meantime, slumbering on their rights, and suffered the defendants to enter into this arrangement; and without imputing to them any such design, the charge of intention to defraud may be fairly retorted on them.

Divesting the case of the technical rules with which it appears to me to have been unnecessarily fettered, and viewing it in the plain dress of common "honesty, all difficulties are, I think, removed. At the request of Harris, the defendants purchased a prior incumbrance on his house and lot, with a view to prevent a sacrifice; and it was agreed between them, that they shall hold the property as a security for the amount advanced. A creditor, who had a subsequent lien, claims to be paid the amount of its value, and the defendants reply, there is the property, dispose of it; pay us the money that we have advanced, and take the balance to yourself. Where, let it be asked, is the injustice done to them? It is replied, that by the acceptance of the deed from the commissioner, they had consummated the contract for the purchase, and they must be bound by it. But it must be recollected, that Harris had, at the time, unlimited control over this fund, and a right to stipulate about it as lie pleased. And whether the contract between himself and defendants would have been fulfilled in good faith or not, the complainants were not, nor could they be interested in it, as long as their rights were unaffected *by it. The accidental destruction of the house, by fire, and the consequent deterioration of the value of the property, may furnish a clue to the foundation of this controversy, and will probably prove equally unfortunate for both parties; but that circumstance cannot change the principle. The defendants having purchased, according to their own showing, as the friends and agents of Harris, the title still remained in him, subject, in the first instance, to their lien, and afterwards to the liens of other creditors in their order of priority. Black must stand on the same footing with other creditors, with respect to the debt due to him by Harris. The expenses for repairs and taxes are a charge upon the premises, and ought to be first paid. Decreed accordingly.

Decree reversed.  