
    Nathaniel Clary vs. Cornelius Grimes et al.
    
    December 1841.
    The evidence taken under an ex-parte commission, is not admissible against a defendant, who is brought into the cause by an amendment made in the plaintiff's bill, after the commission had issued.
    The declarations of the assignee of a bond of conveyance, made while it was in his possession, and while he was the holder thereof, are evidence against a subsequent assignee of the same bond, who claimed title under the person who made such declarations.
    The holder of a bond of conveyance for a parcel of land, as assignee, made and delivered a deed, by which lie conveyed to G. -the land described in the bond; afterwards, to defeat G., and with a fraudulent intent to deprive his conveyance of its intended operation, he re-delivered the bond to the original obligee, when the assignment was erased and anew assignment endorsed to C. by the obligee. Held—
    That under such circumstances, neither the first assignee, nor C., who in fact claimed under him, could seek in equity a specific execution of the contract as against the obligor, or defeat G’s. title.
    
      A defendant in resisting the claim of a complainant, is entitled to see that the court keep within its established rules in determining the rights of the latter.
    Appeal from the Court of Chancery.
    On the 22nd day of March, 1833, Nathaniel Clary filed his bill on the equity side of Baltimore county court, alleging, that Henry Howard of John, was on the 18th October, 1832, seized in fee of a part of a tract of land called Head Quarters, as described in the bill of complaint, and that he agreed with Philemon Welsh for the sale thereof, gave and delivered him his bond of conveyance, binding himself upon the payment of one hundred and fifty dollars to him Henry, before the 10th March, 1833, to make a good and sufficient deed of all his right, title and interest in the same; that also, on the 28th January, 1833, the said Henry Howard of John, did execute and deliver to the said Philemon Welsh, an instrument of writing, binding himself to convey any part of the above mentioned parcel of land described in said bond of conveyance, which might be found, to lay in Baltimore county, upon the payment of the consideration mentioned in the bond of conveyance; that Philemon Welsh, on the 16th February, 1833, assigned all his interest in the said bond to the complainant, who on the 9th March, 1833, exhibited his assignment to the said Henry Howard of John, offered to deliver up the same and pay him the said sum of $150, and tendered him a deed, and that he refused to receive the money or execute the conveyance. Prayer for a specific performance of the contract; that Henry Howard of John, and Philemon Welsh be made parties, and for general relief.
    
      Philemon Welsh appeared and confessed the facts charged in complainant’s bill.
    
      Henry Howard of John, being summoned and not appearing, an interlocutory decree was passed against him, and a commission ordered, which was issued on the 2nd September, 1833, and closed on the 3rd August, 1835.
    On the 8th September, 1833, Henry Howard of John, petitioned Baltimore county court for leave to file his answer, and an answer was filed, (the terras of this leave do not appear,) which admitted his contract with Philemon Welch, but alleged that Welch had assigned his contract to James Thomas; that Thomas sold to Cornelius Grimes; that subsequently to the assignment of said agreement, which was put on the back thereof, it was erased in part, and a new assignment made, whereby the rights under said agreement were attempted to be transferred to the said complainant, and the dates of said assignment fraudulently altered, and the mattef placed, of attempted to be placed, in the same situation as though the said assignment to Thomas had never been executed. He also denied a tender at the time and in the manner stated, and exhibition to him of the bond of conveyance as stated, &c.
    On the 20th November, 1833, the complainant petitioned for leave to amend his bill, in order to make Cornelius Grimes a party defendant, and to aver, that the assignment to Thomas, relied upon in the answer of Howard the defendant,- was obtained by duress. On the 20th November, 1833, the county court (Pürviance, A. J.,) passed the following order:
    “ Leave is granted to make Mr. Grimes a party defendant, “according to the prayer of the petition.” And a subpoena issued for said Grimes on the 21st November, 1833, who being summoned, appeared and answered the bill, taking in substance the same defence as Henry Howard of John.
    
    On the 14th April, 1834, the complainant suggested the death of Henry Howard of John, and a subpcena issued for his representatives, who were all summoned.
    The defendants then by agreement waived all objections which might be taken to the testimony of Philemon Welch, examined as a witness for complainant, so far as they might arise from his examination without a previous order of court. On the 29th June, 1835, an order was passed directing the commissioner to return the commission, which was closed in August 1835.
    On the 2nd November, 1835, the cause was transmitted to Chancery. And on the 19th January, 1837, it being before the Chancellor (Bland,) he ordered it to stand over with leave to amend, as allowed by the order of the 20th November, 1833, and also to amend so as to make James Thomas a party.
    . On the 17th April, 1838, the complainant filed his amended bill, praying subpoena against C. Grimes, James Thomas, Sarah Howard and others, representatives of H. Howard of John. The alleged matters of the original bill, and the pretended claim of Grimes through James Thomas, the assignee of Welch, who was not made a party to this amended bill, were stated in the bill as amended.
    
      James Thomas answered the bill, and alleged that though he purchased from Welch, yet being unable to comply with his contract, he cancelled it, returned his contract to Welch, who gave him up his bond. He denied a sale to Grimes of any interest in, or any portion of that contract.
    ■ On the 24th January, 1840, it was agreed that the several answers filed should be taken as answers to the amended bill, as well as to the original bill.
    The complainants excepted to the evidence of the declarations of James Thomas, as sought to be given in evidence by the defendants.
    The defendant, Cornelius Grimes, also excepted :
    1. To the competency of James Thomas and Philemon Welch as witnesses against him.
    2. To the admissibility of the evidence of those two witnesses, and each of them.
    3. To the admissibility of the depositions taken by complainant under the ex parte commission issued under the interlocutory order, because said defendant was not then a party to this cause.
    4. To the admissibility of all hearsay evidence.
    At December term, 1840, the Chancellor (Bland,) dismissed the bill, being of opinion that putting aside the depositions of the parties to this suit as coming from incompetent witnesses, and the mere hearsay detailed by other witnesses, the complainant has failed to sustain his claim to relief, by any'legal and satisfactory evidence.
    The complainants appealed to this court.
    
      The cause was argued before Buchanan, C. J., Archer, Chambers and Spence, J.
    By W. F. Giles for the complainants.
    J. J. Lloyd for the defendants.
   Archer, J.,

delivered the opinion of this court.

As the commission ex parte under the interlocutory decree was ordered and issued before Grimes was ¡made a party to the proceedings, we think the objection was well taken to the admissibility of the evidence against Grimes.

But we have, notwithstanding, examined the merits of the case upon the testimony taken under the commission, and we have arrived at the conclusion, that the complainant is not entitled to the relief he seeks. In this examination we have considered the declarations of Thomas, to whom the bond of conveyance from Howard was assigned, made before the erasure, and before assignment of the bond, by Welch, to the complainant, as evidence. The complainant derives his title to the bond of conveyance through Thomas, and any declaration made by Thomas, while he was holder of the bond, we consider as evidence against the complainant.

We are satisfied that Welch entered into the contract which is now sought to be specifically enforced with Howard, for the benefit of Thomas, and that he accordingly assigned the agreement to Thomas. While Thomas was thus in possession of the agreement by assignment, he executed a deed to Grimes, large enough by its terms to transfer any interest he had in the land affected by the agreement; and then to defeat Grimes, and with the fraudulent design to deprive the conveyance of its intended operation, he re-delivered to Welch the agreement to convey, when the assignment to Thomas was erased, and an assignment by Welch to Clary was made in its stead. Under such circumstances, it is not perceived that Thomas could have (had he not assigned to Cleary,) any claim to a specific execution of the contract; nor do we see how Cleary, the complainant, could stand in any better situation. The established rules which govern courts of equity in enforcing contracts, would forbid our interference in his behalf.

Tire complainant must stand or fall by the pretensions of Thomas, from whom he has in reality derived his pretended title, and has therefore ip our judgment no claim to our interposition.

It has been objected that the conduct of Grimes has been harsh and oppressive. This may be so, but Grimes is not demanding the aid of Chancery to enforce a conveyance, but is resisting the claim of the complainant; and he is entitled to see that the court keep within its established rules in determining the rights of the complainant,

DECREE AFFIRMED.  