Ecclestow, J.,
delivered the opinion of this court.
This is an action of assumpsit, brought by the administrators of Walter Wood against John H. Key, the present appellant, on the 31st of July 1848, to recover the sum of $500, with interest, which sum had been paid by Wood, on the 31st of December 1845, to Key, under the following agreement:
“It is, this 23rd day of September 1845, agreed between Walter Wood, of Charles county, and John H. Key, H. G. Hayden and H. G. Gamer, of St. Mary’s county, all of the State of Maryland, that the said Walter Wood agrees to pur[92]*92chase the land bought at sheriff’s sale, as the property of G. W. Moreland, by the said John H. Key, JEL. G. Hayden and H. G. Garner, on the following terms, to wit: the said Wood agrees to pay the sum of seventeen hundred and fifty dollars for the said land, in the following payments, to wit: one-third on the first day of January next, before he takes possession, and one-third in twelve months thereafter, and the other'!:bird in two years from the first of January next, with interest on the deferred payments. Anticipating some disputes, it is agreed by each of the parties, that if the said John H. Key, H. G. Hayden and H. G. Garner should ultimately lose the said land, then they are to return to the said Wood any money he may have paid, with interest thereon; and the said Wood agrees to give up the said land, and to pay a fair and reasonable rent for the same to the said J. H. Key, H. G. Hayden and H. G. Garner. Witness our hands.” (Signed,) “John H. Key, H. G. Hayden, H. G. Gamer, Waiter Wood. Test, J. B. Huntington.”
The nar. contains a count for goods sold and delivered, also the common money counts, including one for money had and received.
A former judgment in this cause was reversed and a procedendo ordered by this court, at December term 1854, which decision is reported in 6 Md. Rep., 142.
The case was tried under the procedendo, and this appeal is from the judgment rendered upon the second trial.
There the plaintiff offered in evidence the(agreement of the 23rd of September 1845, and also the following receipt:
“December 31st, 1845.—Received of Walter Wood an order on Mr. Benjamin H. Jamison for five hundred dollars, which, when paid, will be in part payment of a tract of land called part of Luckland, that John H. Key, Henry G. Garner and H. G. Hayden purchased at sheriff’s sale, that formerly belonged to George W. Moreland.”
(Signed) “John H. Key.”
The plaintiff also offered to prove, that the said¿defendant never had possession of said land, but that it remained ip j possession of said Moreland up tp the time of the institution of this suit,
[93]*93The plaintiff then offered in evidence the record of proceedings showing, that, on the 31st of January 1845, a writ oí fieri facias was issued at the suit of William W. Bowling, use of the administrators of Joseph Thomas, against George W. More-land and Henry G. Gamer. This writ, according to the sheriff’s return, was levied upon sundry articles of personal property of said Moreland, and upon his land, which is described as, “A tract or parcel of land called and known by the name of Luck-land, containing one hundred and thirty acres, more or less, being the land purchased of Robert Davis, and appraised to $1800.” The land was sold, under this writ, on the Tth of May 1845, to H. G. Hayden, Henry G. Garner and the defendant, John H. Key, for $515.00. On the 9th of August following, Moreland filed objections to this sale, and made a motion to set it aside, but the motion was overruled, and he appealed.
Pending this appeal the contract of the 23rd of September was entered into.
At June term 1846, the Court of Appeals reversed the decision below, set aside the sale, and remanded the case for further proceedings, under a procedendo issued on the 13th of July 1846. A report of which case will be found in 3 Gill, 500.
In August^ following the procedendo, a venditioni exponas was issued in that case, and the return of the sheriff thereto shows, that the land was sold under it to Hayden, Gamer and Key, for $630.
The defendant offered this vendi. and the return, and gave no other evidence.
“The plaintiff then, further to support the issues on his part, and to rebut the inferences from the proceedings under the venditioni exponas, offered in evidence the bill, answers, exhibits and proceedings in the case of H. G. Garner and W. H. Garner vs. Moreland and others.”
It appears that these proceedings were instituted injequity, for the purpose of procuring the sale of a tract or parcel of land called “Luckland,” for the payment of a balance of purchase money due for the same, upon a sale thereof made [94]*94in 1841, to George W. Moreland by a certain Robert Davis; which balance of purchase money was assigned by Davis to Henry G. Garner and William H. Garner. Moreland took possession of the land and paid part of the purchase money, but received no conveyance of it. He became an insolvent petitioner, and William B. Goddard was appointed his trustee. Such are the facts set forth in the bill filed in February 1850, by Henry G. Garner and William H. Garner, making George W. Moreland, William B. Goddard and Robert Davis, defendants.
Under this bill such proceedings were had, that on the 7th of August 1852, the court ordered and decreed, that the sum of $550.56, with interest from the 1st of January 1842, as the balance of purchase money due for the land called “Luck-land,” mentioned in the proceedings, should be brought into court to be paid to the complainants, with their costs. And that upon payment, or bringing the same into court, the land should be conveyed to the defendant entitled. And that unless the defendants should pay, or bring into court to be paid, to the complainants, the said sum of money, with interest and costs, on or before the first Monday of October then next, the land should be sold. A trustee to make the sale was appointed, who afterwards reported that he had sold the land to a certain Luke W. B. Hutchins, for the sum of $1750.
On the 13th of December 1853, the sale made and reported by the trustee was finally ratified by the court, “and the same referred to the auditor to state an account between the-parties in said case.”
The auditor made a report, from which it appears, that after deducting costs and expenses, there remained a balance of $1544.27. Out of this the sum of $910.61 was allowed to Henry G. Gamer and W. H. Garner, the complainants, then $4.67 to special auditor, and then to Henry G. Garner, H. G. Hayden and John H. Key, as “owners of the residue,” the sum of $209.66§, was allowed to each of them.
On the 1st of December 1854, the court ordered that the report of the auditor should be ratified and confirmed, unless cause to the contrary should be shown on or -before the third Monday of March then ensuing.
[95]*95The plaintiff also proved, in the present case, that H. G. Garner, the complainant in the chancery suit, was the same H. G Garner who was party to the contract of the 23rd of September 1845, and (hat the land mentioned irt that contract, in the receipt offered in evidence, and in the proceedings under the fieri facias and venditioni
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Ecclestow, J.,
delivered the opinion of this court.
This is an action of assumpsit, brought by the administrators of Walter Wood against John H. Key, the present appellant, on the 31st of July 1848, to recover the sum of $500, with interest, which sum had been paid by Wood, on the 31st of December 1845, to Key, under the following agreement:
“It is, this 23rd day of September 1845, agreed between Walter Wood, of Charles county, and John H. Key, H. G. Hayden and H. G. Gamer, of St. Mary’s county, all of the State of Maryland, that the said Walter Wood agrees to pur[92]*92chase the land bought at sheriff’s sale, as the property of G. W. Moreland, by the said John H. Key, JEL. G. Hayden and H. G. Garner, on the following terms, to wit: the said Wood agrees to pay the sum of seventeen hundred and fifty dollars for the said land, in the following payments, to wit: one-third on the first day of January next, before he takes possession, and one-third in twelve months thereafter, and the other'!:bird in two years from the first of January next, with interest on the deferred payments. Anticipating some disputes, it is agreed by each of the parties, that if the said John H. Key, H. G. Hayden and H. G. Garner should ultimately lose the said land, then they are to return to the said Wood any money he may have paid, with interest thereon; and the said Wood agrees to give up the said land, and to pay a fair and reasonable rent for the same to the said J. H. Key, H. G. Hayden and H. G. Garner. Witness our hands.” (Signed,) “John H. Key, H. G. Hayden, H. G. Gamer, Waiter Wood. Test, J. B. Huntington.”
The nar. contains a count for goods sold and delivered, also the common money counts, including one for money had and received.
A former judgment in this cause was reversed and a procedendo ordered by this court, at December term 1854, which decision is reported in 6 Md. Rep., 142.
The case was tried under the procedendo, and this appeal is from the judgment rendered upon the second trial.
There the plaintiff offered in evidence the(agreement of the 23rd of September 1845, and also the following receipt:
“December 31st, 1845.—Received of Walter Wood an order on Mr. Benjamin H. Jamison for five hundred dollars, which, when paid, will be in part payment of a tract of land called part of Luckland, that John H. Key, Henry G. Garner and H. G. Hayden purchased at sheriff’s sale, that formerly belonged to George W. Moreland.”
(Signed) “John H. Key.”
The plaintiff also offered to prove, that the said¿defendant never had possession of said land, but that it remained ip j possession of said Moreland up tp the time of the institution of this suit,
[93]*93The plaintiff then offered in evidence the record of proceedings showing, that, on the 31st of January 1845, a writ oí fieri facias was issued at the suit of William W. Bowling, use of the administrators of Joseph Thomas, against George W. More-land and Henry G. Gamer. This writ, according to the sheriff’s return, was levied upon sundry articles of personal property of said Moreland, and upon his land, which is described as, “A tract or parcel of land called and known by the name of Luck-land, containing one hundred and thirty acres, more or less, being the land purchased of Robert Davis, and appraised to $1800.” The land was sold, under this writ, on the Tth of May 1845, to H. G. Hayden, Henry G. Garner and the defendant, John H. Key, for $515.00. On the 9th of August following, Moreland filed objections to this sale, and made a motion to set it aside, but the motion was overruled, and he appealed.
Pending this appeal the contract of the 23rd of September was entered into.
At June term 1846, the Court of Appeals reversed the decision below, set aside the sale, and remanded the case for further proceedings, under a procedendo issued on the 13th of July 1846. A report of which case will be found in 3 Gill, 500.
In August^ following the procedendo, a venditioni exponas was issued in that case, and the return of the sheriff thereto shows, that the land was sold under it to Hayden, Gamer and Key, for $630.
The defendant offered this vendi. and the return, and gave no other evidence.
“The plaintiff then, further to support the issues on his part, and to rebut the inferences from the proceedings under the venditioni exponas, offered in evidence the bill, answers, exhibits and proceedings in the case of H. G. Garner and W. H. Garner vs. Moreland and others.”
It appears that these proceedings were instituted injequity, for the purpose of procuring the sale of a tract or parcel of land called “Luckland,” for the payment of a balance of purchase money due for the same, upon a sale thereof made [94]*94in 1841, to George W. Moreland by a certain Robert Davis; which balance of purchase money was assigned by Davis to Henry G. Garner and William H. Garner. Moreland took possession of the land and paid part of the purchase money, but received no conveyance of it. He became an insolvent petitioner, and William B. Goddard was appointed his trustee. Such are the facts set forth in the bill filed in February 1850, by Henry G. Garner and William H. Garner, making George W. Moreland, William B. Goddard and Robert Davis, defendants.
Under this bill such proceedings were had, that on the 7th of August 1852, the court ordered and decreed, that the sum of $550.56, with interest from the 1st of January 1842, as the balance of purchase money due for the land called “Luck-land,” mentioned in the proceedings, should be brought into court to be paid to the complainants, with their costs. And that upon payment, or bringing the same into court, the land should be conveyed to the defendant entitled. And that unless the defendants should pay, or bring into court to be paid, to the complainants, the said sum of money, with interest and costs, on or before the first Monday of October then next, the land should be sold. A trustee to make the sale was appointed, who afterwards reported that he had sold the land to a certain Luke W. B. Hutchins, for the sum of $1750.
On the 13th of December 1853, the sale made and reported by the trustee was finally ratified by the court, “and the same referred to the auditor to state an account between the-parties in said case.”
The auditor made a report, from which it appears, that after deducting costs and expenses, there remained a balance of $1544.27. Out of this the sum of $910.61 was allowed to Henry G. Gamer and W. H. Garner, the complainants, then $4.67 to special auditor, and then to Henry G. Garner, H. G. Hayden and John H. Key, as “owners of the residue,” the sum of $209.66§, was allowed to each of them.
On the 1st of December 1854, the court ordered that the report of the auditor should be ratified and confirmed, unless cause to the contrary should be shown on or -before the third Monday of March then ensuing.
[95]*95The plaintiff also proved, in the present case, that H. G. Garner, the complainant in the chancery suit, was the same H. G Garner who was party to the contract of the 23rd of September 1845, and (hat the land mentioned irt that contract, in the receipt offered in evidence, and in the proceedings under the fieri facias and venditioni exponas, was the same land which was mentioned in the chancery proceedings, and that John H. Key and II. G. Hayden, mentioned in the auditor’s report as entitled to a portion of the proceeds of the sale of the land thereiu mentioned, were the same Key and Hayden who Were parties to the said contract.
“To the admissibility in evidence of which last mentioned proceedings in equity, under the pleadings, the defendant, by his counsel, objected.” The court, overruled the objection and permitted the evidence to be given, to which the defendant excepted.
2nd Bill of Exceptions.—Upon the evidence given in the first bill of exceptions, the plaintiff prayed the court to instruct the jury, “that if they find from the evidence in this case, that on the 23rd day of September 1845, the defendant and H G. Garner and H. G. Hayden entered into the contract before recited:” (Here follows the contract.) “And that the plaintiff paid to the defendant, on the 3lst of December 1845, five hundred dollars on said contract, and that the said Garner afterwards instituted proceedings to sell the said land for the payment of a vendor’s lien, and that afterwards, under said proceedings, the said land was sold to a third party, L. W. E. Hutchins, and the money finally awarded to said Garner, Hayden and defendant, deducting the amount of the vendor’s lien, and that from having actually received part of the said money, to be entitled as purchasers under the venditioni ex-ponas, before mentioned, then the plaintiff is entitled to recover for the amount so paid by Wood; although they may find, that the said Wood, before the contract aforesaid, was entered into and obtained, agreed to pay off the said vendor’s lien - and receive a credit therefor on his contract.” The court granted the instruction and the defendant excepted.
[96]*963rd Exception.—The plaintiff then prayed the court to instruct the jury, “that if they find the facts' stated to be true, then they are sufficient to authorize them to find a rescission, or abandonment, of the contract of the 23rd of September 1845, by the said defendant, and the said Garner and Hayden, and if they so find that (he said contract was rescinded, or abandoned, by said defendant, and Garner and Hayden, that then the plaintiff is entitled to recover the amount paid by the plaintiff’s intestate;” which instruction the court gave, and the defendant excepted.
When, on the former occasion, the case was before this court, it was held, that upon the vacation of the sale under the fieri facias, the contract of September 1845, was voidable, at the option of either party, or it was equally within the power of either to reaffirm it. The court thought Wood had pursued the latter course, “and it was too late for those who represented him, to seek to avoid the consequences of that act.”
Instead of believing that Wood regarded the contract as rescinded by reason of the vacation of the sheriff’s first sale, the court considered him as having “reaffirmed the contract, as far as he could, by claiming possession, and asserting acts of ownership, over the land,” in the fall of 1846, a short time before his death.
This view of the matter resulted from the testimony, then in the cause, which had been given by the witness Higgs.
This witness was not examined at the last trial; and there is now no proof, whatever, before us, that Wood ever claimed possession, or asserted any act of ownership, over the land. In addition to which, it will be seen the plaintiff offered proof that Key, the defendant, never had possession of the land, but that it remained in possession of said Moreland up to the time of the institution of this suit. The case is therefore very different now, from what-it was on the former appeal. There is nothing tending to prove that Wood either reaffirmed the contract, after the vacation of the sheriff’s first sale, or that he did not regard that as having rescinded the contract.
On page 149 of 6th Maryland, the court say, “Had either [97]*97party pleased to regard their obligations under the contract at an end, upon the sale’s being vacated, they- might have done so, and thus virtually have rescinded the contract. This was manifestly the purpose of the parties when they provided for the result of the anticipated dispute, and for the return of the first payment of the purchase money, by the vendors in the contract, if they should ultimately lose the land. ’ ’
The record of the last trial containing no proof of any act., whatever, on the part of Wood, which can be considered as a reaffirmance of the contract, after the vacation of the sheriff’s sale; and having, then, the right “to regard his obligations under the contract at an end,” he might, at any time thereafter, have instituted a suit to recover the purchase money previously paid by him; and such right of action devolved upon his administrators after his decease.
The court, in 6th Maryland, refer to 2 Sugd. on Vend., 7 & 8, (Ed. of 1843,) 7 Greenlf. Rep., 70, Brinley vs. Tibbets, as having a bearing upon the then supposed reaffirmánce of the contract, by Wood. These authorities sustain the well established principle, that there are cases, in which, the circumstances may authorize a party to a contract to regard his obligations under it as no longer binding upon him; and yet his subsequent acts in relation to the subject, may amount to such a waiver of this right, as will continue the contract in force against him. But this principle can have no influence unfavorable to the appellee, in the present aspect of the case; because there is no evidence of any act of Wood, amounting to any waiver of his right to regard the contract as rescinded, by the vacation of the sheriff’s sale.
The first bill of exceptions presents the question, whether the court erred in over-ruling the defendant’s objection to the admissibility of the proceedings in chancery, for the sale of the land, as evidence in this cause.
It has been contended by the appellant, that inasmuch as neither he, nor Hayden, was either a complainant or defendant in the chancery case, it was res inter alios, and, therefore, not proper evidence in this suit.
As a general rule, it is true, that judgments and decrees are [98]*98evidence only between parlies and privies. But like most other rules, this has exceptions; and in view of the exceptions, which have been sanctioned in adjudged cases, we think there was no error in admitting this decree in chancery, and the sale under it.
Decided July 1st, 1859.
In 4th Phillips on Ev., (Ed. of 1843,) page 920, of Cowen and Hill’s Notes, in note 639, it is said, “The decree and proceedings in chancery are equally admissible as a record at law, to show rent ipsam, though between strangers, and especially between privies.” In support of this a number of cases are referred to. In addition to those, see, also, 4 Wheat. Rep., 213, 220.
It will likewise be seen, in Head’s Representatives vs. M’Donald, 7 Monroe, 207, and Cowen and Hill’s Notes, 693, el page 977 of 4th Phill., that records have been admitted in evidence, in suits, not between the same parties or privies, -where, upon the facts of the trials and the recoveries, in such records, the interests of others hung, as incidents or consequences, And the production of such a record is proof,-that the suit was brought, and the recovery had, as therein set forth. But, “the consequences to others, resulting from those facts, apparent from the face of the.record, are to be established by appropriate evidence of such other facts as may be necessary to sustain the action or defence.”
By admitting the decree in equity and the sale under it, as evidence in this case, we are not be understood as intimating any opinion, in regard to whether those proceedings would conclude, or in any degree injuriously affect, any rights of J. H. Key, in relation to the land mentioned therein, in any controversy between him and the parlies to that suit.
All the judges concur in the foregoing; and also, that there is a sufficient disclosure of the history of this case to show the justice of the claim of the plaintiff; but the judges are equally divided in regard to the propriety of the ruling of the court, below, in granting the two prayers of the plaintiff, and therefore the judgment must be affirmed.
Judgment affirmed..