51 Md. 345 | Md. | 1879
delivered the opinion of the Court.
If it be conceded that the pleas of “res adjudicata” and limitations are bad pleas in this case, there are other grounds on which the order of the Court helow must he affirmed.
. This is an application to a Court of equity to restrain the payment of a vendor’s lien audited to the appellee under a decree, upon the ground that the lien was assigned by the appellant to the appellee as collateral security, and that the debt intended thereby to be secured has been fully paid.
To justify the exercise of a jurisdiction so extraordinary in its character, it was incumbent on the appellant to make out a strong prima facie case, entitling him to the relief prayed, an equity, according to some of the cases, as strong as the legal right which is sought to be controlled. Osborne vs. Eales, 2 Moo. P. C. N. S., 125.
Then again, the jurisdiction being founded on equitable principles, he must show that his own conduct has been consistent with equity, because if he has brought about the state of things of which he complains, he has no right to ask the interference of the Court. Lloyd vs. London, Chatham & Dover Railway, 2 D., F. & S., 568 ; Dutton vs. Furniss, 35 L. J. Ch., 463; Reynolds vs. Sprye, 1 D., M. & G., 679; Bateman vs. Rainsay, Sau. & Sc., 459.
Now in this case, the appellant’s ground of relief is based entirely upon the allegation that the lien was assigned to secure an indebtedness, which indebtedness has been paid. The petition is filed in the case of Cornell & Johnson vs. The Appellee, in which case the appellant was examined as a witness, and upon being asked
“ I. have none and 1 know of none.”
It also appears that McCann, the assignee, was at the same time examined as a witness, and when he was asked whether the appellant had any interest in the recovery of the claim, he answered: .
“None in the world, it was passed to me absolutely.”
We have then in the very case in which this petition is filed, the appellant testifying that he had no interest of any kind, either contingent or prospective in this lien. And now after the lien has been audited to the appellee, and after the audit had been finally ratified, he asks a Court of equity to restrain the payment of the lien to the appellee on the ground that it was assigned to him as collateral security merely, and that the appellant has now and always has had an interest in the same.
The equity now set up by the appellant, is utterly inconsistent with his own testimony in Cornell and Johnson, and it can hardly be necessary to say under such circumstances, that he has failed to make out a case such as would justify a Court of equity to interfere with the payment of money to which the appellee was entitled under a decree. To do so, in the face of this testimony, would not only be without precedent, but contrary to the well settled principles by which such Courts are governed. It is but proper to say, that the record in Cornell and Johnson, was not before the learned Judge when the original order of the 5th June, 1878, was passed.
We might add to what we have already said, that for aught that appears to the contrary in this record, the ground on which relief is now asked, is one which existed and of which the appellant might have availed himself at the time the decree was passed, and at the time the lien was audited to the appellee. The appellant in his petition
Order affirmed.
