
    William Fanning vs. The Farmers and Merchants Bank of Memphis and others.
    Where a note is indorsed in blank, and it does not appear that the holder had notice of any restrictions or limitations upon the extent of liability to be incurred, the indorser thereon will be liable to such holder, even though the note be filled up with a greater sum than the indorser expected or intended.
    If the indorser of a note conceives that he is not liable thereon by reason of the note being filled up with a greater amount than he authorized, yet afterwards . executes a deed of trust to the holder of the note to secure its payment, he thereby waives any objections he may have had to the note originally, and affirms the original contract.
    If a party, having a good defence at law, by his own voluntary act deprives himself of the means of making it, a court of equity cannot interpose in his behalf; as where a party to a note, having a valid'defence to it, voluntarily executes a deed of trust to secure its payment, a court of equity will not enjoin the execution of the trust, on account of such defence to the original note.
    Appeal from the vice-chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor.
    William Fanning filed his bill, alleging, that for the purpose of assisting one George W. Johnson in business, he signed two or three pieces of paper as second indorser, (Morgan McAfee being first indorser,) which were blank as to amount, and were delivered to Johnson, to fill up to the amount, in all, of four or five thousand dollars, and no more; these blanks Johnson took to the Farmers and Merchants Bank of Memphis, and instead of raising money on them to assist him in business, or purchasing goods with them, he paid them over to the bank in satisfaction of a preexisting debt, on which the complainant was in no way liable ; that at the time the paper was indorsed, Johnson had signed and sealed the notes, and he then handed them over to the bank, which filled up one of them for between three and four thousand dollars, another for nearly three thousand dollars, and another for between eight hundred and one thousand dollars, without the knowledge or consent of the complainant; and that one of the blanks, which was filled for the sum of thirty-three hundred and seventy dollars or thereabouts, was dated so as to fall due in January, 1838, while the blank itself was signed in March, 1838, and antedated by the bank; that these bonds were taken by the bank without the knowledge of the complainant, or any new consideration to any party to the note, and not in the due course of trade.
    That about three thousand dollars had been paid, by some one unknown to the complainant, on these debts, and that in November, 1839, he was sued on two of these bonds in the district court of the United States for North Mississippi; and having confidence in the attorney of the bank, he consulted him on the subject, and was advised by him to pay the debts and sue the first indorser thereon, and recover the money from him; acting under this advice, the complainant, in December, 1839, mortgaged his land to trustees to secure the payment of these bonds; this deed of trust was given in ignorance of the complainant’s rights, and in view of the promise of the bank’s attorney, to dismiss the suit at law, and proceed against McAfee in complainant’s name; which was done by the attorney of the bank in the circuit court of Tallahatchie county, in this state, and the suit was still pending.
    That McAfee was about to defend this suit on the ground of the alteration of the notes, when the attorney of the bank, acting as attorney of the complainant, refused to prosecute the suit further; upon which, the complainant dismissed him from his employment, but not before he had withdrawn the bonds from the suit; upon which the attorney immediately brought, in the name of the bank, a suit against both McAfee and the complainant; upon the pleas of the defendants thereto being filed, the attorney of the bank dismissed the joint suit as to the complainant, and sued him on the bonds as last indorser, in the same district court of the United States, so that three suits were then pending on the bonds.
    
      That in view, of these proceedings of the bank, the deed of trust given by the complainant was void; and in consequence of the breach of contract on the part of the bank in suing complainant on the notes, instead of prosecuting the suit against McAfee for his benefit, the bank, even if the deed of trust were valid, had forfeited her right to enforce it. Yet the bank had advertised the property conveyed, for sale by the trustees; to enjoin which the bill prayed, and also that the deeds of trust might be cancelled.
    The deed of trust, filed with the bill made by the complainant, recited that he was indebted to the bank in the notes in contro-' versy, all of which were past due, as indorser thereon; and that to secure their payment by the first of April, 1841, (to which period the bank extended thé time of payment, and allowed him to retain possession of the property mortgaged,) the property specified in the deed was conveyed; and in case of non-payment by that period, the trustees were authorized to sell, and out of the proceeds to pay the bank the full amount of the debt, interest and costs.
    Seth Wheatley, the president of the bank, answered that the note, which complainant alleges he indorsed in March, 1838, and which was antedated by the bank to January, 1838, was discounted by the bank in January, 1838, on the application of B. R. Sappington & Co., to renew a note made by Johnson,.indorsed by McAfee, John Colbert and W. D. Dabney;, that the blanks in the note thus discounted were filled up by Dabney, who was authorized so to fill them up, by the complainant, and it was not antedated by any one.
    The president states that the other two notes indorsed by the complainant, were filled up under the direction of Dabney, one of the firm.of B. R. Sappington & Co., by one of the officers of the bank, and were discounted at the instance of Sappington & Co., in renewal of notes held by the bank, then maturing, of Johnson, on which Colbert was indorser, but on which, in the renewal, the bank required a new name in lieu of Colbert’s, when that of the complainant was given. The notes were taken in renewal of those held by the bank in its usual course of business.
    That the complainant was the father-in-law of Johnson, and knew the object of the indorsements.
    The president denies all the allegations of the bill, as to the fraudulent conduct of the attorney'of the bank, in the management of the suits and procurement of the deeds of trust; and states that the complainant applied to the bank directly for indulgence on the debts; the bank was willing to give the indulgence, if the complainant would assume the debt and give personal security; this the complainant declined, but voluntarily proffered to the bank the deed of trust, which was accepted by the bank, on the complainant’s paying $1025 50 in cash, which was done, and the time given and the deed of trust executed, by a different attorney for the bank and one of the trustees in the deed. That at the same time the complainant received from Johnson, a deed of trust on property and an assignment of notes and accounts, (some of which he had realized,) to indemnify him against the indorsements. This deed of trust is filed as an exhibit to the answer, and after describing the notes in controversy, recites that they had “been secured by William Fanning, who was bound on said notes as indorser, to the satisfaction of said Farmers and Merchants Bank of Memphis, Tennessee; and whereas, he of the first part (Johnson,) is willing and anxious to indemnify and save harmless him of the second part (Fanning) from the payment of any part of the notes aforesaid, now,” <fcc.
    That the complainant was always willing to pay one half the notes, but wanted McAfee to pay the other half; and the suit in the United States court was dismissed, and the suit in the circuit court brought against McAfee in the name of the complainant, and afterwards in the name of the bank against both at the request of the complainant; in proof of which, a letter of' the complainant was filed, to that attorney of the bank charged with having inveigled the complainant into the execution of the deed of trust. That letter was in these words, viz.:
    
      “ December 15, 1841.
    “Dear Sir, — I have been to Memphis, and saw Squire Wheatley. He wants you to give my note to the bank for the whole amount. I’say to him the bank is as safe as I will make it, for I am willing to pay one half of the debt and keep my home. Now I say to you, if you can sue us both in the United States court, and put McAfee before me as we stand on the notes, so he can’t twist out and throw me liable for the whole debt, I am willing, but not .otherwise. If you can’t do that, sue us both here in the circuit court, and put McAfee as we stand on the notes, and I will make myself ready to pay my part so soon as you can obtain judgment; and if you will sue us here, write to me and I can dismiss the suit, and pay the cost under the act of ’37. You will see Wheatley has left the whole transaction with you. I have the confidence in you that you will manage it so as to compel McAfee to pay his part. Write on the receipt of this letter, and say in which court you will sue; for I am desirous to have the whole matter settled.
    “ Your ob’t serv’t.
    William Fanning.”
    The president of the bank filed with his answer letters of the attorney of the bank, delivered by the complainant to the bank; and the answer of the bank to those letters, delivered by the complainant to the attorney of the bank, with the contents of all of which complainant at the time was made familiar; which show that the complainant was familiar with all the steps taken by the bank and its attorney, and approved and advised them all, with reference to the suits and deed of trust.
    The answer of one of the trustees was also filed, in effect setting up the same with the answer of Wheatley.
    Yarious depositions were taken, which did not materially alter the facts of the case, as exhibited in the answers and letters filed therewith.
    The cause was submitted to the vice-chancellor, who dissolved the injunction and dismissed the bill, and the complainant appealed.
   Mr. Justice Clayton

delivered the opinion of the court.

There is no ground of equity upon which this bill of injunction can be sustained.

The note, out of which the controversy grows, was made payable in the bank at Memphis, and was negotiable' according to the laws of Tennessee. It was indorsed before it was filled up, but it does not appear that the holders had notice of any restrictions or limitations upon the extent of liability to be incurred. If there were objections to the note originally, they have been waived by the execution of the deed of trust, which in effect was an affirmance of the contract. The. charge of fraud and improper practice in procuring the deed of trust, is not sustained by the proof, and is positively denied by the answers. This is the only ground upon which equity could interfere, and it is taken away by the evidence.

The liability of the complainant upon his indorsement, is purely a legal question, and one of which a court of equity has no right to assume jurisdiction. If the complainant, by his own voluntary act, without fraud or-improper influence upon the part of the bank or its agents, has deprived himself of the means of making the defence at law, equity has no power to interpose in his behalf. Without expressing any opinion as to the original rights of the parties at law, we are clear that the complainant has made no case for equitable relief.

■ nphe is affirmed.  