Clary v. Grimes , 12 G. & J. 31 ( 1841 )

Archer, J.,

delivered the opinion of this court.

As the commission ex parte under the interlocutory decree was ordered and issued before Grimes was ¡made a party to the proceedings, we think the objection was well taken to the admissibility of the evidence against Grimes.

But we have, notwithstanding, examined the merits of the case upon the testimony taken under the commission, and we have arrived at the conclusion, that the complainant is not entitled to the relief he seeks. In this examination we have considered the declarations of Thomas, to whom the bond of conveyance from Howard was assigned, made before the erasure, and before assignment of the bond, by Welch, to the complainant, as evidence. The complainant derives his title to the bond of conveyance through Thomas, and any declaration made by Thomas, while he was holder of the bond, we consider as evidence against the complainant.

We are satisfied that Welch entered into the contract which is now sought to be specifically enforced with Howard, for the benefit of Thomas, and that he accordingly assigned the agreement to Thomas. While Thomas was thus in possession of the agreement by assignment, he executed a deed to Grimes, large enough by its terms to transfer any interest he had in the land affected by the agreement; and then to defeat Grimes, and with the fraudulent design to deprive the conveyance of its intended operation, he re-delivered to Welch the agreement to convey, when the assignment to Thomas was erased, and an assignment by Welch to Clary was made in its stead. Under such circumstances, it is not perceived that Thomas could have (had he not assigned to Cleary,) any claim to a specific execution of the contract; nor do we see how Cleary, the complainant, could stand in any better situation. The established rules which govern courts of equity in enforcing contracts, would forbid our interference in his behalf.

Tire complainant must stand or fall by the pretensions of Thomas, from whom he has in reality derived his pretended title, and has therefore ip our judgment no claim to our interposition.

It has been objected that the conduct of Grimes has been harsh and oppressive. This may be so, but Grimes is not demanding the aid of Chancery to enforce a conveyance, but is resisting the claim of the complainant; and he is entitled to see that the court keep within its established rules in determining the rights of the complainant,

DECREE AFFIRMED.