
    William J. Holloway vs. Thomas P. Moore.
    As a general rule, the answer of one defendant is not evidence against his eodefendant ; nor does the failure of one to answer, and a pro confesso against him, entitle the complainant to take the allegations of the bill as true, as against one who does answer.
    If a vendee, who purchases land on a credit, and takes a bond for title when he pays the purchase money, fail to pay according to the terms stipulated, the vendor may consider the contract at an end, and may lawfully sell to a third person.
    M. filed a bill, charging that in 1838 R. purchased a lot of the commissioners of the town of H. S., and took a bond for title on the payment of the purchase money; R. died, and one of his brothers got possession of the title bond, and fraudulently sold said lot to E., and by fraud and combination with E. procured a deed from said commissioners to him ; that E. afterwards sold and conveyed the lot to M., who purchased without any knowledge of the above facts, and paid part of the purchase money, and gave his bond for the balance ; on which he had been sued, and judgment obtained against him for the use of H. ; that H. had no interest, in fact, in the judgment, his name having only been colorably used ; that E. was insolvent, and had gone to Texas.; that the title to the lot was still in the heirs of R., being eight in number, who were threatening to institute suit for it, and prayed for a rescission of the contract with E., and an injunction against the judgment in favor of H. &c. H. answered, denying all fraud, combination, &c., and insisting that he was an innocent purchaser, for a valuable consideration, of the bond sued on for his use. A pro confesso was taken against E. Meld, that the pro confesso against E. did not entitle the complainant to take the allegations of the bill as true against H. ; and that in the absence of proof of fraud, E.’s title to the lot is not defective, and the bill should be dismissed.
    This was a bill filed in the district chancery court, on the 20th day of March, 1841, by Thomas P. Moore, against James Earp and William J. Holloway. The bill states that in March, 1838, John Reynolds purchased of Lorenzo D. Henderson and others, commissioners of the town of Holly Springs, in Marshall county, Mississippi, lot No. 203, as represented on the plat of said town, and took their bond for a title thereto; that he paid most of the purchase money, and died before he obtained a deed to the lot; that after his death his brother, Francis Reynolds, got possession of the title bond, and fraudulently sold said lot to James Earp, and by fraud and combination procured a deed from said commissioners to him. The bill charges that John Reynolds left eight heirs at law, who still hold the legal title to said lot; and that James Earp, knowing the legal title to be in the heirs of John Reynolds, about the 12th day of December, 1838, sold said lot to the complainant, for the sum of one thousand dollars — five hundred and thirty-five dollars in cash, and a bond, or writing obligatory, for the balance ; that complainant received a deed from Earp, without any knowledge of the claim of Reynolds’s heirs, or that there was any incumbrance on the lot. The bill further states, that suit was instituted against the complainant, in the circuit court of Marshall county, on said bond, or writing obligatory, and a judgment recovered thereon against him, on the 1st day of January, 1841, for four hundred and seventy-seven dollars and nine cents, besides costs, in the name of James Earp, for the use of William J. Holloway; that Holloway has, in fact, no interest in the judgment, and his name was only colorably used; that Earp was insolvent, and had gone to Texas, or to some place beyond the limits of the United States, and a judgment against him, on his covenants of warranty, would be wholly worthless. The bill further states, that the heirs of John Reynolds were threatening to bring suit for said lot, and they would undoubtedly recover it. And prays for a rescission of the contract with Earp, and a decree against him for the five hundred and thirty-five dollars paid on said lot, with interest, &c., and for injunction against the judgment for the use of Holloway, &c. The injunction was granted. Holloway demurred to the bill, and the court overruled his demurrer. He then answered, and denied all knowledge of the several sales and purchases of said lot, and called for strict proof, denied all fraud and combination, and averred that he purchased the bill single, on which the judgment was recovered for his use, and paid for it a valuable consideration, and that he was, therefore, an innocent holder, and entitled to payment, &c. A pro confesso was taken against Eavp. The deeds from the commissioners to Earp, and from Earp to the complainant, were exhibited with the bill; the former was dated the 14th day of March, 1838, and the latter, the 32th day of December, 1838. The complainant examined three witnesses. Perry G. Reynolds proved that he was well acquainted with the lot in controversy, having lived upon it for about ten years; that his son, John Reynolds, purchased it from Lorenzo D. Henderson and others, at two hundred dollars ; he paid one-third of the purchase down, and took a bond for title, when the whole of the purchase money should be paid. John Reynolds had possession of the lot, and died upon it in May, 1837. After he purchased he lived on the lot, and improved it. At the time of his death it was worth, with the improvements, at least eight hundred dollars. John Reynolds left three brothers and five sisters his heirs at law, six of whom were not satisfied with the sale of said lot, and intend to sue for it, if the complainant does not give it up. U. S. Randolph proved, that he was one of the commissioners of the town of Holly Springs, in the year 1836, that being called on to know if he and the other commissioners had sold said lot No. 203, and if so to whom, found, upon looking over the title bonds, which had been given for lots in Holly Springs, and afterwards taken up, found one given to John H. Reynolds, for said lot. He exhibits the bond, with his deposition. It is dated the 10th day of June, 1836, and shows that John H. Reynolds purchased said lot at the sum of two hundred dollars, to be in three equal instalments; the first falling due on the 1st day of January, 1837; the second on the 1st day of July, 1837; and the third on the 1st day of January, 1838, and that the title was not to be made until the payment of the last instalment. Witness further proved that a deed to said lot was afterwards made to James Earp, which was signed by himself and the other commissioners. Lorenzo D. Henderson proved the same facts stated by U. S. Randolph.
    At the July term, 1842, the vice chancellor being incompetent to sit, the case was submitted to James F. Trotter, who was selected by the parties to sit as special vice chancellor, and a decree rendered by him, rescinding the contract between the complainant and Earp, and making perpetual the injunction against the judgment in favor of Holloway ; to reverse which decree Holloway has brought the case to this court, by writ of error.
    
      Glenn, for plaintiff in error.
    The error complained of in this cause is this — Setting the cause down for hearing upon a “pro confesso” against Earp, and upon it, without proof, rendering a decree against appellant. The record shows this to be true. Appellee purchased a lot in Holly Springs, from Earp, gave his notes for the purchase money, and took a deed from Earp. Earp assigned the note to appellant; appellant brought suit, obtained judgment, and issued execution, to enjoin which this bill was filed. The ground claimed for the injunction is — that previous to appellee’s purchase from Earp, one John Reynolds had purchased the same lot from the town commissioners of Holly Springs, taken their title bond and died; that his brother, Francis Reynolds, fraudulently obtained possession of said fcond, and procured a title to the lot to be made to Earp, with a knowledge, on the part of Earp, of the previous title of John Reynolds, and that Francis Reynolds had only an interest of an eighth in said lot, as one of the heirs of John Reynolds.
    The proof only goes to the fact of John Reynolds’s prior purchase. There is not a particle of proof of fraud, or knotoledge on the part of Earp, so as to affect the rights of appellant, as assignee of Earp. But from the decree in the court below it will be seen, the whole is presumed from the pro confesso, and the appellant is perpetually enjoined from enforcing his rights, as assignee of Earp, in the absence of proof of any act on the part of Earp or himself, to justify it, as may be seen from an examination of the record.
    Upon such a state of facts, the law is clear and explicit.
    The general rule which prevails in chancery is, that the answer of one defendant cannot be used as evidence against his Go-defendant. The answer of an agent is not good against' his principal, nor his admissions in pais, unless part of the res gesta. 2 Wheat. 383.
    Where there is no connection, or community of interest, it would be a violation of the best received rules to permit a party who has parted with his interest, to bind him to whom he has transferred it, either by his confessions or by his answer. 5 Leigh, 405.
    These cases go to show that the answer of a defendant, unsupported by proof, is no evidence against a co-defendant; how much less, then, the silence of a defendant, by way of pro confesso 7
    
    The following case is precisely in point: A gave his note to B, for a gaming consideration; B assigned to C. A filed a bill, setting forth the illegality of the consideration of the note, which was taken for confessed as to B, and the -pro cotifesso, unsustained by proof, was sought to be used against C. Held, that B’s silence was no evidence against C, or her intestate. B’s answer, expressly acknowledging the illegality of the consideration, would have been no evidence against his assignee. No principle is better settled, than that the answer of one defendant is no evidence against another; much less can the silence of a defendant be construed into evidence. G having denied, and called for proof, the judgment should not have been disturbed. 2 J. J. Marsh. 136. 6 Monroe, 192. 4 Harr. & John. 520. 3 P. Wms. 311, note. 1 Har. Chan. Pr. 185.
    It is believed the facts of this case clearly make the point, and.that the authorities above cited will induce the court, without hesitation, to reverse the decree of the vice chancellor.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

Moore filed his bill in the vice chancellor’s court, to rescind a contract, by which he had purchased a lot in Holly Springs, of one James Earp, and for an injunction to stay the collection of the purchase money, judgment at law having been obtained against him by Holloway, as indorser of the note. Earp failed to answer, and a pro confesso was taken ; but Holloway answered, denying the allegations of the bill. The cause was set for hearing, on the pleadings and depositions, and a decree was rendered for the complainant, from which Holloway has brought the case up by writ of error.

From the allegations in the bill it appears, that in 1838 one John Reynolds purchased the lot in question, from 'the commissioners of the town of Holly Springs, who gave him a title bond, on payment of part of the purchase money. Reynolds afterwards died, leaving eight heirs at law. After his death, his brother, Francis Reynolds, one of the heirs, got possession of the bond, and sold the lot to Earp, and fraudulently procured a deed to be made by the commissioners to Earp, who had full knowledge of the fact. Moore purchased of Earp, and paid part of the purchase money, and gave his note for the balance, on which suit was brought and judgment recovered in the name of Holloway, who is charged with having no interest in it. Moore received a deed from Earp, without any •knowledge of the right of Reynolds’s heirs, or the fraud that had been practised.

It is charged that Earp is insolvent, and has removed to Texas, and that Reynolds’s heirs threaten to institute suit for the lot. The deeds from the commissioners to Earp, and from him to Moore, are made exhibits to the bill; the title bond given by the commissioners to John Reynolds is set out in a deposition.

Perry G. Reynolds testified, that John Reynolds bought the lot, and paid one-third of the purchase money, taking a bond for title. John Reynolds died, leaving eight heirs. Did not know whether Earp had a deed, but he purchased it from somebody after the death of John Reynolds. That the heirs of John Reynolds talked of bringing suit for the lot. One of the commissioners was examined, and stated that the lot was sold to John H. Reynolds, and that a deed was afterwards made to James Earp, but he does not state how it happened that the deed was made to Earp. By the title bond, it appears that Reynolds was to pay in three instalments ; but Vas not to receive a title until all the purchase money was paid.

This testimony falls short of establishing the fraud charged in the bill, neither does it establish a defective title in Earp. Although there was a pro confesso taken as to Earp, that was not evidence against Holloway, who had denied the fraud, as charged against him, and had required full proof of the allegations. As a general rule, the answer of one defendant is not evidence against his co-defendants ; and surely the failure of one to answer does not entitle the complainant to take the allegations of the bill as true, as against one who does answer. The authority cited from 2 J. J. Marshall is directly in point, and was a case like the present, in all its features, except as to the consideration of the note. Apart from the allegations of the bill, the complainant failed to make out his case.

Another view of this question makes it equally conclusive against the complainant. Earp, it seems, got a title, and there is no proof that he acquired it by fraud. On the contrary, the record discloses a state of facts, from which it seems probable that it was fairly acquired. Reynolds only held a bond for title, when he should pay the purchase money. He, therefore, had no right to receive a title until he paid for the lot. If he failed to pay at the lime stipulated, the vendors had a right to consider the contract at an end. It is like the case of Hatch v. Cobb, 4 Johns. Ch. R. 559. The vendee had taken a title bond, but failing to make his payments, the vendor sold to another, and the court refused to decree a specific performance ; because, by the default of the vendee, the vendor had a right to consider the contract as at an end. To the same effect tvere the cases of Kemphill v. Stone, 5 Johns. Ch. R. 193, and Benedict v. Lynch, 1 Ib. 370.

It is probable, that the deed from the commissioners to Earp, was made in consequence of the default of Reynolds. This presumption derives strength from the circumstance, that the deed, to Earp bears date some time after Reynolds’s last instalment became due. He had also failed to make the second payment.

The decree must be reversed, and a decree rendered for appellant.  