
    Wiling,.
    
       Absent, Beekshibe, J.
    James C. Booth et al. vs. Jesse Hartley.
    January Term, 1869.
    Where a contract in writing, for land, is delivered to a third party as an escrow, not to he delivered by the holder as a contract but upon the order of the vendor, and it is fraudulently obtained from the holder by the ven-dee upon false pretences and withheld when demanded, he cannot make it available for the purposes of a specific execution.
    This cause arose in Marion county in 1866. It is unnecessary to give any of the particulars concerning its origin or progress, as this court decided only upon one question involved which goes to the right of the plaintiff below, Jesse Hartley, to bring his suit, having fraudently obtained possession of the contract, which was delivered as an escrow, that he sought to enforce.
    
      A. Haymond for the appellants.
    
      
       He had been counsel in the cause below.
    
   Brown, President.

This was a bill to enforce specific execution of an alleged contract for land, and to obtain a deed for the same in pursuance thereof.

The answers positively deny the existence of such contract, but charge that the paper writings claimed by the complainant to constitute the alleged contract, were delivered by the parties to a third, party to be held as escrows for safe keeping and not to be delivered bj7 said holder as a contract, but upon the order of the vendor, which he never gave. But that the complainant fraudulently obtained the said papers from the party having them, upon false pretenses, and so withheld them when demanded, and fraudulently attempts to make them avail him in his suit. .

General replications were filed to the answers.

The evidence is conflicting, but when carefully considered will be found to establish the facts thus put in issue for the defendants.

The court below therefore erred in decreeing the execution of the alleged contract, but should have dismissed the bill.

I am of opinion, therefore, to reverse the decree and dismiss the bill with costs to the appellants in both courts.

Maxwell, J., concurred.

DECREE. REVERSED.  