
    
      Jonathan Dow et al. vs. J. C. Ker, William Carter, et al.
    
    1. Defendant, K, was indebted to bis co-defendant, C., in several bonds, dated 17th January, 1838, payable in equal annual instalments, and secured by the mortgage of a plantation called Woodstock.
    2. The debt due on the bonds being wholly unpaid, on the 7th April, 1840, the parties agreed, in writing, thatK., in consideration that C. would give him until 7th April, 1843, for the payment of the whole sum, should apply the income and profits of the plantation and negroes employed on it, with those of a house of entertainment kept there, towards the payment of the debt. K. assigned, and set over, the income and profits to C., and agreed further, should the debt be not fully paid on or before the time specified, to mortgage to C. twenty-nine slaves, the household furniture, and property of every other description on said plantation. K. was also indebted to complainant, to whom, in 1841, he confessed judgment; execution issued, and entered in the sheriff’s office, at the same time.
    3. No account being rendered of the income and profits of the plantation and other property, C. filed his bill 16th April, 1841, for a specific performance of the agreement. Decree obtained 21st January, 1842, for foreclosure against the plantation, providing, if the sale was insufficient to pay the debt, the negroes mentioned in the agreement should be sold by the master, and the proceeds applied to that purpose. Complainants levied their execution on the negroes, 10th January, 1842, but the master interposed his right under the decree.
    4. Complainants filed their bill, 12th February, 1842, insisting that the agreement between K. and C. was not a lien on the negroes; that as their execution was lodged before the decree, they were entitled to the proceeds of the sales.
    5. Order passed 5th March, 1842, directing the master to retain the proceeds of sale, for the further order of the court.
    6. It was held that the agreement between K. and C. operated as a lien on the negroes from the time of its execution. Vide, Massey vs. Mcllwain, 2 Hill Ch. Rep. 428; Reddos vs. Gailliard, 2 Dess. 552.
    
      7. The party’s ignorance of the legal effect of his agreement could not absolve him from his contract.
    
      Before Johnson, Ch. at Charleston, February Term, 1843.
    JohnsoN, Ch. The defendant, Ker, being indebted to his co-defendant, Win. Carter, $13,416, in several bonds, originally given to James Hamilton, dated 17th January, 1838, and payable in five equal annual instalments, secured by a mortgage on a plantation calléd Woodstock; on 7th April, 1840, the debt due on the bonds being wholly unpaid, they entered into a written agreement, whereby it was stipulated that Ker, in consideration that Carter would give him further time for the money, the whole sum, until the 7th April, 1843, agreed to appropriate the income and profits of the plantation, and the negroes employed thereon, and of a house of entertainment kept there, towards the payment of the said debt; and for that purpose he assigned and set over the said income and profits to the said Ker, and the said Ker thereby further agreed, that if the said sum was not fully paid on or before the said 7th April, 1843, he would, as a further security, mortgage to the said Carter, certain slaves, twenty-nine in number, and the household furniture, and the property of every other description on the said plantation. Defendant, Ker, was also indebted to the complainant, and on the -day of-, 1841, he confessed a judgment to them for $20,000, and an execution (ft. fa.) was issued and entered in the sheriff’s office, on the same day. No account having been rendered to Carter, of the income and profits arising from Woodstock, and the other property, and no money having been paid, he filed his bill, in this court, on the 16th April, 1841, against Ker, for the specific performance of the agreement; and at January term of 1842, (21st January,) obtained a decree of foreclosure against the plantation, which provided, that if the sales of Woodstock should be insufficient to pay the debt, the negroes mentioned in the agreement should also be sold by Mr. Gray, one of the masters of the court, and the proceeds applied to that purpose. In the mean time, viz: on the 10th Jan. 1842, the complainants had caused their execution to be levied on the negroes, but Mr. Gray interposed his right to take possession of, and sell them, under the decree of this court, before mentioned. In this state of things, on the 12th February, 1842, the complainants filed the present bill, in which they insist that the agreement between Ker and Carter, of the 7th April, 1842, was not a lien on the negroes, and as their execution was lodged before the decree of the 21st January, 1842, they were entitled to the proceeds of the sales; and on the 5th of March, 1842, an order was made in which is recited the contest between the parties, as to priority, and directing Mr. Gray, who had been directed to make the sales, to retain the proceeds in his hands to await the further order of the court. The sales of the Woodstock plantation fell far short of the debt due to Carter, and the question is, which of the parties are entitled to the proceeds of the sales of the negroes.
    “It is a general rule,”-says Mr. Powel, in his treatise on the Law of Mortgages, pages 459, 460, “that whenever a right in equity attaches against a person, that equitable right binds all persons claiming under or against that person whb have not special liens on any of the property. From hence, it follows, that general creditors are, in all cases, bound by a particular equityand, in illustration of the rule, put the case of money being lent on a contract for a mortgage, when the party dies without having executed the mortgage, and the estate descended to the heir as assets for the payment of specialty debts, and remarks that that contract is superior to the specialty debts. The language of all the books is, that an agreement to mortgage, is an equitable lien, and has precedence of subsequent judgments, and all general creditors. In Massey vs. Mclhoain, 2 Hill’s Ch. Rep. 428, it was so held. In that case there was an agreement, on sufficient consideration, to convey land at a subsequent day, and the court decided that it was a lien on the land, and prevailed over a judgment subsequently obtained, but before conveyance actual made. So in Reddos vs. Gaillard, 2 DeSaussure Eq. Rep. 552, where one, by letter, requested his friend to endorse for him a nofe to be used in the bank, and as an inducement, promised to give him a bill of sale of particular property, and it was held that the letter was a lien on the property, and was entitled to preference over other creditors. I did not understand, indeed, that either the rule or its application was intended to be controverted in the argument. The principal ground of defence was, that Rer did not intend, by the agreement, to give Carter any present lien on the negroes, and entered into it in perfect ignorance that it would, in law, have that effect; and Rer states, positively, in his answer, that such was the fact. Carter, in his answer, admits that Rer positively refused, in the treaty about the agreement, to give him a mortgage on the negroes, but he professed to believe, and as this defendant does not deny that he did believe, that he would be able to pay the debt within the time limited by the agreement, and that he entered into it after mature deliberation.
    Mr. Petigru, the solicitor of Carter, was examined for complainant. He stated that he negotiated the terms of agreement with Rer, for Carter. That he first proposed to Rer, that he should mortgage the negroes, which he refused. He afterwards wrote to Rer, proposing that he should give some other security. He, afterwards, had an interview with him. He w7as exceedingly desirous to get time for payment, and himself proposed to assign to Carter the income from the Woodstock property, and expressed great confidence that it would be sufficient to pay the debt. Witness took time to consult with Carter. At a subsequent interview, Rer agreed to the terms expressed in the agreement. He understood them perfectly, but witness does not know that he understood their legal effect. It is probable enough that Rer did not understand at the time that the agreement would operate as a lien on the negroes from the time of its execution, but he could hardly mistake that good faith required that he should employ them on the Woodstock plantation, and that he was bound to pay to Carter the income from that and the house of entertainment, or that his disposition of them in any other manner, would be a violation of the agreement. And the defence rests Upon the ground alone, that he was ignorant that the agreement created a ¡present lien on the negroes^ and of that there is no other evidence than his own answer. If that was sufficient for absolving a man from his contract, the lawyers alone would be capable of making a binding contract, and without intending to disparage their leaining, it might safely be said that even they might often "be mistaken. Sometimes the legal effects of contracts pre--sent the most puzzling questions, dependant oil the most nice and subtle distinctions, calling forth all the power of the most learned of the profession, and if for that reason a contract should be declared void, there must be an end of all contracts.
    In the case of Laurens vs. Beaubien, and the cases which followed, which, I think, pushed the doctrine as far as it would bear, it was held that mere ignorance of law was not; of itself, sufficient to avoid a contract, because it was incapable of proof, but that a mistake in law, as where the party had been advised by counsel learned in the law, would be sufficient; and if Ker, a resident of the city, had any distrust of, or desired to know the legal effect of the agreement in all its results, he could have readily obtained the advice of counsel.
    The question here is presented in rather a novel aspect It is not Ker who is seeking to avoid this agreement ] he could derive no benefit from it; the proceeds of the sale must go to pay one creditor or another; but the complainant, whose claim is founded upon the allegation that Ker was ignorant, and did not know the effect of the agreement he entered into with Carter, and; therefore, claim that the lien of their execution should be preferred. Now, I do not perceive on what ground the complainants have a right to complain, for Ker, who was in debt to Carter, might think proper to give him a lien on his property; and what right have they to complain 1 It is exactly the right which they set up now — they desire that their execution should be preferred to his lien. If the mesmeriser, (for this is the age of mesmerism,) fraudulently cutoff the right arm of his subject, by way of experiment, and he acquiesced in it, has the state, who is entitled to the use of that arm in the defence of its rights, a remedy against the offender ?
    
    It is ordered and decreed, that the bill he dismissed with costs. I am not informed whether the proceeds of the sale is, or is not, more than sufficient to pay the amount of the bonds due to Carter. If they are, the balance must be paid to complainants.
    The complainants appealed from the decree of the Chancellor, in this case, on the following grounds :
    1. That the agreement between Ker and Carter was not an equitable mortgage at the time the execution of the complainants was lodged.
    2. That if it was an equitable mortgage, it was obtained from Ker against equity and good conscience, through his ignorance of law, and his ignorance of law cannot be made the ground of Carter’s rights by Carter himself.
    3. That the money being in court, to be applied to the party entitled to it, the complainant, who has the prior legal, as also an equitable lien, ought to be paid before Carter, who has only an equitable claim.
    4. That the defendant, Carter, had broken his contract with Ker, before the commencement of this suit, and is, therefore, not entitled to set it up in his defence.
    -Mr. Walker, for the appellant. Mr. Petigru, contra.
   Curia, per Johnson, Ch.

The court concur in the decree of the circuit court.

Appeal dismissed.

Dunkin, Ch., having an interest in the result, did not sit in this cause-.  