cross-examine witnesses, and to appeal from the decision, if an appeal lies": 1 Greenl. Ev., sec. 535.

All these privileges (not any one of them) are essential to the assertion and protection of private rights, and the investigation of the truth. Only, therefore, those who have enjoyed them collectively should be concluded by a decision, judgment, or decree. It is true, privies in blood, in law, and estate are governed by the same rule. The petitioner in this case, not being a party in the larger sense, it remains to inquire whether he is a privy in estate or interest. No one, in this state, can claim a share or interest in the personal estate of an intestate, except through an administrator. It is the administrator's duty to get in the personal estate of the deceased for distribution.

Advancements, however, do not go into the inventory, and constitute no part of the assets for payment of debts, nor increase the fund on which the administrator's commission is allowed. It is optional with the party advanced, whether he will come into hotchpot. The administrator has no interest in establishing the fact of advancement, and cannot be said to be a party in interest. It is wholly immaterial to him whether money or other property, given by his intestate, be brought into the settlement or not. The aggregate of the estate, as far as he is concerned, is neither increased nor diminished. In the absence of all motive to protect the rights of the distributees, it would be hazardous to extend the privity of interest in law, where there is no common interest in fact, and conclude a party in interest by a constructive representation.

The petitioner might, by adopting certain preliminaries, had he been notified in time, have entitled himself to the cumulative remedy of appeal; but that right, it has been well said, would be nugatory and nominal, without the right of producing evidence, cross-examining the respondents' witnesses, and controlling the conduct of the cause in such a manner as to enable the appellate court to determine whether the decree appealed from was erroneous or not.

The petition in this case charges certain specific advancements, in cash, notes, and negroes. The answers of Harrington and Hooper admit the receipt of the amounts specified in the petition, but aver and are ready to prove that said sums were paid in consideration of services rendered. As to the slaves mentioned in said petition, the respondents alleged

they held them by bills of sale, copies of which were exhibited. To which answers a replication was filed denying the services, and declaring the bills of sale were voluntary and without consideration.

In the case of Stewart v. Pattison, 8 Gill, 54, the court said: "If money is delivered by a parent to a child, it will be presumed to be an advancement." Here the allegation of the petition is admitted, that they received certain specific sums of money, and certain negroes. Does the qualification annexed, "that they aver and are ready to prove," etc., so neutralize the admissions as to render them inoperative to support the presumption of law, until proof to the contrary is offered? Matter in avoidance, denied by the general replication, must be proved: Salmon v. Claggett, 3 Bland, 125.

An answer will not support matter set up in avoidance or discharge, where the matter of avoidance is a distinct fact; in such case, the defense must be proved: Gibson v. McCormick, 10 Gill & J. 65. These decisions make it obvious the orphans' court erred in assuming there was no evidence before them to sustain the petition, and whether the same was dismissed upon the plea of res adjudicata, or upon the ground of want of evidence, we think the decree below should be reversed, and the cause remanded for further proceedings.

Decree reversed, and cause remanded.

THE PRINCIPAL CASE, as it again came before the court, is reported in Cecil V. Cecil, 20 Md. 153.

DECREES OF PROBATE COURTS, HOW FAR JUDGMENTS IN REM: See note to Street v. Augusta Ins. etc. Co., 75 Am. Dec. 722. The principal case is quoted in Levy v. Levy, 28 Md. 31, to the effect that in matters in rem, such as the factum of a will, where solemn proof has been resorted to, the decisions are final, if not appealed from, and issues involving the same questions will not be sent a second time.

FORMER JUDGMENT IS CONCLUSIVE UPON SAME MATTER BETWEEN PARTIES AND PRIVIES: Doty v. Brown, 53 Am. Dec. 350, and note; Embury v. Conner, Id. 325; Emery v. Fowler, 63 Id. 627; Norton v. Doherty, Id. 758; Horton v. Critchfield, 65 Id. 701; Lord v. Chadbourne, 66 Id. 290; Thomason v. Odum, 68 Id. 159; Grassmeyer v. Beeson, 70 Id. 309; Ellis v. Clarke, Id. 603; Tadlock v. Eccles, 73 Id. 213; Warwick v. Underwood, 75 Id. 767. Where the parties and the subject-matter are the same, a decree in a former suit is admissible in evidence in a pending one: Clagett v. Easterday, 42 Md. 627; but to make record evidence to conclude any matter, it should appear by the record, or by other proof, that the matter was in issue in that suit: Whitehurst v. Rogers, 38 Id. 512, both citing the principal case.

JUDGMENTS ARE BINDING UPON PARTIES AND PRIVIES ONLY: Lord v. Chad bourne, 66 Am. Dec. 290; Detrick v. Migatt, 68 Id. 584; Whitney v. Higgins, 70 Id. 748; Lipscomb v. Postell, 77 Id. 651, and notes to these cases. A judg. ment is not binding on a person who is neither a party nor a privy to the suit: Niller v. Johnson, 27 Md. 12, citing the principal case.

PARTIES AND PRIVIES, WHO ARE, SO AS TO BE BOUND BY JUDGMENT: See Lipscomb v. Postell, 77 Am. Dec. 651; Winston v. Westfeldt, 58 Id. 278; note to Howard v. Kennedy's Ex'rs, 39 Id. 311. The principal case is cited in McKinzie v. Baltimore etc. R. R., 28 Md. 174, to the point that the term "parties," is not restricted to those who appear as plaintiffs and defendants upon the record, but includes those who are directly interested in the subjectmatter of the suit, know of its pendency, and have the right to control, direct, or defend it.

THE PRINCIPAL CASE IS ALSO CITED in Clark v. Wilson, 27 Md. 700, to the point that it is a presumption of law, liable, however, to be rebutted by evidence, that a gift from parent to child, unexplained at the time, or a conveyance which is silent as to its design, is an advancement.

TIMMS V. SHANNON.

[19 MARYLAND, 296.}

WRITTEN CONTract, as EvideNCED BY BONDS and Mortgage, cannot be VARIED, in the absence of fraud, accident, or mistake, in a suit to foreclose the mortgage, by evidence of a parol agreement to the effect that at the time when a deed of the land was made, and the bonds and mortgage were executed to secure payment of the purchase-money, the grantor promised to pay off an existing mortgage on the land, and if he should fail to do so, the grantee might retain a sufficient sum for that purpose out of the last installments of the price; especially when such evidence is introduced to raise an equity against an assignee of the mortgage in good faith, without notice or knowledge of the agreement.

PAROL EVIDENCE TO VARY OR CONTRADICT WRITTEN CONTRACT IS INAD MISSIBLE IN EQUITY, as well as at law, in the absence of fraud, accident, or mistake.

STIPULATIONS IN AGREEMENT FOR SALE OF LAND MUST BE CONSIDERED AS DISCHARGED BY EXECUTION OF CONTRACT by the acceptance of a deed of conveyance of the land, and the giving of bonds and mortgage to secure the purchase-money, there being no fraud, mistake, or surprise charged or proved in the transaction.

GRANTEE WHO ACCEPTS DEED WITH SPECIAL WARRANTY, AND EXECUTES BONDS AND MORTGAGE FOR PURCHASE-MONEY, CANNOT CLAIM DEDUCTION or abatement from the mortgage debt by reason of an outstanding incumbrance on the land within the warranty, in a suit brought by an assignee to foreclose the mortgage.

MORTGAGE OF LANDS IS REGARDED IN EQUITY AS MERE SECURITY FOR MONEY, a chattel interest or chose in action, the debt being considered as the principal, and the mortgage as the accessory, or appurtenant thereto.

ASSIGNEE OF CHOSE IN ACTION NOT NEGOTIABLE TAKES IT SUBJECT TO EQUITIES existing against it in the hands of the assignor, at the time of the assignment.

ACTUAL EVICTION IS NECESSARY TO CONSTITUTE DEFENSE TO ACTION FOR PURCHASE PRICE OF LAND, on the ground of failure of consideration from a defect in title, where a deed has been given, and the purchaser has entered into possession; although an eviction is not necessary, where there has been no conveyance. The grantee, who is not evicted, but remains in undisturbed possessson, must rely on his covenants, except in case of fraud.

BILL in equity to foreclose a mortgage. The facts are stated in the opinion.

Otho Scott, for the appellant.

J. T. McCullough, for the appellee.

By Court, BARTOL, J. On the third day of July, 1851, by articles of agreement, Thomas Keen contracted to sell to William Timms a tract of land in Cecil County for five thousand dollars. Keen bound himself to convey the land by deed, with general warranty, on or before the first day of August, 1851, and Timms, on his part, contracted to pay five hundred dollars of the purchase-money on the first day of August, 1851, with interest on the whole sum from the date of the articles, and to pay the residue as follows: one thousand dollars on the first day of May, 1852, one thousand dollars on the first day of May, 1853, one thousand dollars on the first day of December, 1854, one thousand dollars on the first day of December, 1855, and five hundred dollars on the first day of December, 1856. The interest on the whole sum remaining unpaid to be paid at the respective times mentioned; and to secure the payment of these sums, Timms contracted to execute his bonds and a mortgage of the land purchased, as well as of another parcel of land belonging to him in Cecil County.

On the thirty-first day of July, 1851, Thomas Keen and wife executed a deed, conveying to Timms the land mentioned in the articles of agreement, with a covenant of warranty against all persons claiming under the said Keen. And on the following day (the 1st of August, 1851), Timms paid the sum of five hundred dollars, and executed six bonds to secure the payment of four thousand five hundred dollars, and interest, at the times mentioned in the articles of agreement, four of them for one thousand dollars each, and two for two hundred and fifty dollars each. At the same time a mortgage was executed by Timms, which is not exhibited in the cause, nor does it appear in proof for what reason it was canceled, destroyed, or abandoned. Timms, in his supplemental answer,

alleges that it was deemed defective. And on the sixteenth day of January, 1852, the mortgage sued on was executed, in lieu of the other, describing the several bonds of the 1st of August, 1851, and conditioned for their payment.

After the payment by Timms of all the bonds, except the last three, one for one thousand dollars, and two for two hundred and fifty dollars each, Thomas Keen, the mortgagee, on the eighth day of December, 1856, assigned the mortgage to the appellee, William Shannon, and transferred to him the three last mentioned bonds, and to enforce their payment, Shannon, on the twenty-third day of December, 1856, filed this bill.

The defenses relied on by the appellants are as follows: It appears that in January, 1856, Timms sold and delivered to Keen goods to the amount of $74.02, and on the twenty-second day of May, 1856, he sold and delivered to Keen a horse and yoke of oxen at the price of $175, and claims that he is entitled to have these sums applied as credits upon the mortgage debt, by virtue of an agreement and understanding made at the time with Keen, the mortgagee, that they should be so applied.

It further appears from the proceedings that at the time of the sale and conveyance of the land in question by Keen to Timms, there was an outstanding mortgage on the same land executed by Keen, and held by one George Davis, dated the twenty-ninth day of December, 1849, and intended to secure the payment of one thousand dollars, with interest, one half on the first day of January, 1855, and one half on the first day of January, 1856; and the appellant contends that he is entitled to have abated from the mortgage debt the amount due on that outstanding mortgage to Davis, a portion of the interest on which he claims to have paid on the first day of January, 1857, and the whole of the principal and interest on the sixth day of October, 1857.

This claim for allowance or abatement on account of the mortgage to Davis will be first disposed of.

In the argument, it was based on several grounds.

1. An alleged agreement by parol, made by Keen at the time the deed for the land was made, and the bonds and mort gage of the 1st of August were executed, to the effect that he would pay the mortgage debt to Davis, and if he should fail to to do so, that Timms should retain a sufficient sum for that purpose out of the last installments of the purchase-money.