| Md. | Dec 15, 1852
delivered the opinion of this court.
This case was commenced by a bill filed in the high court of chancery, by the appellant Dou^3 praying an injunction, which was granted, to restrain the appellees from enforcing against certain lands of the appellant various executions isr sued ,out of 'Washington county .court, on judgments in said court, and levied on said lands. The case has been several times before the Court of Appeals, and the principles which must govern the more important questions involved in it have been ascertained by the opinions heretofore pronounced.
The complainant invokes the interposition of a court of equity, on the ground that after the rendition of the judgments against Abraham Barnes, M. Mason and John T. Mason, they executed a conveyance of all their real estate in Washington county, and also of a large personal estate, in trust, to pay their debts according to their just priority; that the judgment creditors, of whom the appellees are assignees, had knowledge of this deed and acquiesced in the control of the trustees over
When the case was before the late Court of Appeals, at June term 1846, on an appeal from the decision of the chancellor dissolving the injunction which had been previously granted, the court said:
“If the judgment creditors assented to the deed of trust, and by their conduct induced the complainant and others to become the purchasers of the lands bound by their judgments, and to believe that they would look to the trustees for the payment of their .claims, and not to the liens created by their judgments, we cannot hut believe that such conduct would furnish a valid equitable defence. To allow the judgment creditors, after such a course of conduct, to enforce their judgments against the purchasers, would be to permit them to perpetrate a fraud upon the purchasers. The obvious consequence of such a procedure on the part of the judgment .creditors would be to lull the purchasers into a false security, and to induce them to believe that a title would follow the payment of the purchase money. Upon the state of facts alleged, it would not be necessary for the purchasers to see to the application of the purchase money, credit being given to the trustees, and they being known to be alone looked to for the payment of the judgments by the proceeds of sales.”
To enable the complainant, if within his power, to make out these facts, or a sufficient number of them to entitle him to make out his claim to the relief asked, the case was sent back to the court of chancery.
We understand the Court of Appeals in 4 Gill, 19, as affirming the proposition that it is incumbent on the part of
This being so, the question then is, has the complainant furnished the required proof? We agree in opinion with the chancellor that he has not.
In the view which we take of the case, it is not important to inquire whether or not the witnesses whose testimony is excepted to, are competent, for in either aspect our decision would be the same. If the testimony be admitted it destroys the equity of the complainant, and if it be rejected his case is without sufficient support.
The complainant made his principal purchase on the 25th of March 1840. Prior to this time the trustees, under the deed of Barnes and the Masons, had been and continued to be for a long time thereafter, the attorneys of the judgment creditors, and as such, a correspondence was carried on between them and the creditors. The deed itself did not, by its terms, propose to interfere with the right or priorities of the creditors, and there is nothing in the correspondence from which the conclusion can be legitimately drawn, that they agreed to surrender any of them. The whole correspondence on their part exhibits but one anxiety, and that is, that they should be paid. In fact there is not a particle of proof in the cause that the complainant, Doub, knew of the correspondence before he completed his purchase by the payment of the purchase money, and it is manifest from the letter of Mr. Yost, dated the 7th day of May 1844, and addressed to Mr. Gordon, that he never supposed the lien of the bank of Baltimore had been waived, for he there expressly tells Mr. Gordon, the attorney of the bank, that if he would have a scire facias issued in the case, and would so direct, it should be done immediately.
In regard to the partial equities growing out of alleged payments on some of the judgments, we are of opinion it is now too late for the complainant to avail himself of them. He had ample opportunity to have done so when the judgments were revived, and not having taken advantage of it then deprives him of the privilege now.^ hie had full notice through his counsel, and on it he confessed judgment to the full amount. In this state of case, it would be a fraud to allow him now to claim a set off against a bona fide assignee, who was induced by his act to believe there was no objection to the amount of the judgments so confessed.
The suggestion of the counsel for the appellant, that this court should pass a decree compelling John Hanson Thomas to pay the appellees, is one which this court cannot adopt. To do so would be to add to the delay—which has been sufficiently protracted—ÍE rendering justice to the appellees. Moreover, Thomas is not now before this court. Besides this, in the case reported in 4 Gill, 1, the court have recognized in the most distinct manner the right of the judgment creditors to proceed, at once, against the land, for they dissolve, absolutely, the injunction restraining Lynch and Craft from enforcing their executions.
Being of opinion that the complainant has failed to establish such an equity as is required and pointed out by the Court of Appeals, in 4 Gill, we affirm the ruling of the chancellor, and will sign a decree to that effect.
Decree affirmed.