Hayward v. Carroll

4 H. & J. 518

• Court: Court of Appeals of Maryland
• Decided: June 15, 1819
• Status: Published

Opinion

Dorset, J.

delivered the opinion of the Court. William Hayward and George R. Hayward, who were complainants in the court of chancery, claim the benefit of a mortgage executed by the defendant Daniel Carroll, to Charles Carroll of Carrollton, the other defendant, on the ground that the latter had, for a valuable consideration, assigned the same to them; and in their bill they insert a copy of a paper, which they call an assignment, purporting to be executed by Charles Carroll, and attested by John Edmondson as a witness. Charles Carroll, in his answer, admits the execution of the original paper, but denies that he ever intended to assign the mortgage to the Haywards. The defendant, Daniel Carroll, by answer, not only positively denies the assignment, but insists on the extinguishment of the mortgage by the payment of the money.

It becomes necessary to inquire, whether the assignment alleged by the Haywards to have been made in their fa-vour, is established by legal evidence.

The answer of Charles Carroll admits the execution of the original paper, of which a copy is exhibited, and therefore, with reference to him, the court have a right to decide on. its operation. But as Daniel Carroll, by his answer, denies the execution of the assignment, the fact of such assignment is by him put in issue, and must therefore be proved. Where is the proof of this fact? Is it to be found in the admission of Charles Carroll, confessing the execution of the paper termed an assignment? It is not; because it is an established principle of evidence that the, answer of one defendant cannot be read in evidence against a co-defendant.' If the complainants were interested in, establishing a fact by the evidence of a co-defendant, they might have examined him as a witness, on interrogatories, and the witness then would have been subject to the cross examination of the other defendant. To withhold from 'inch defendant the privilege of cross examination, would l>e unjust, and this injustice must necessarily result from the practice of permitting the answer of one defendant to be read in evidence against a co-defendant.

Let us proceed one step further, and' see whether the fact of assignment is proved by Edmondson. He proves that the hayioarda requeued him to receive from diaries Carrol/an assignment of the mortgage in their favour, and that Charles Carroll did execute such an assignment, and delivered it to the witness, who afterwards gave it to the. Haywards.

The assignment here alluded to has not been proved as an exhibit in the cause. That Charles Carroll executed a paper, which was deemed by the witness to be an assignment, is proved. Hut as the paper was in existence, its execution might ar.d ought to have been proved; and even the copy exhibited by the complainants could not be evidence if it had been proved to be a true copy, (and of which there is no proof.; unless the original was lost, destroyed, or in the possession of the adverse party. The testimony of this witness, as well as lite allegation in the complainants’ bill, shew that the assignment did not rest in parol. As the contract, therefore, of the parties, was reduced to writing, it can only be proved judicially, by the production and proof of the written agreement, or by the admission of the defendants in their answers; as neither of those facts exist, we are of opinion that the pretended assignment is not proved.

It was urged by the appellant’s counsel, that even this view of the case was not fatal to the claim of the complainants, inasmuch as the assignment to them by Charles Carroll, of Robins Chambedame’s bonds, must be considered in equity as an assignment of the mortgage. Supposing, for the sake of argument, (and we are only prepared to make the admission for that purpose,) that such would be the effect, still it is evident that the chancellor’s decree ought to be affirmed. The complainants sought relief on the ground that Charles Carroll, by an agreement reduced to writing, did assign to them the mortgage. This allegation is put in issue. The complainants fail in establishing their equity as displayed in their bill, but prove a case entirely distinct and different from it. We say entirely different, because the bill, so far from relying on the assignment of Chamberlaine’s bonds as the foundation of equity, does not even state that C. Carroll had possession of them. Can this new case, arising out of facts, not one ©f which were put in issue by the bill, entitle the complainants to a decree? If we were to answer affirmatively, we should prostrate that long established rule which declares that the complainaut in his bill must put in issue whatever he intends proving, otherwise he will not be permitted to give it in evidence; and therefore it is that the court of chancery pronounces its decree secundum allegata and probata, to shield the defendants against the fatal con» sequences of surprize.

As there is no legal evidence of an assignment of the mortgage in the record, it follows that the chancellor did elT jn dismissing the ■ complainants’ bill. His decree ■ought, therefore, to be affirmed.

Chase; Ch. J.

delivered his opinion, affirming the ele» cree of the chancellor upon the points arising under the ■decree,

DECREE AFFIRMED.