
    ARCHIBALD T. McKAY vs. HUGH SIMPSON.
    When an instrument is intended to carry an agreement into execution, but, by reason of a mistake either of fact or of law, does not fulfill that intention, by passing the estate or the thing bargained for, Equity corrects the mistake, by decreeing a proper instrument to be executed.
    The case of Pugh vs. Brittain, 2 Dev. Eq. 84, cited and approved.
    'Cause removed from the Court of Equity of Richmond 'County, at the Fall Term 1849.
    In May 1846, the plaintiff sold to the defendant a negro boy for the price of $S50, to be paid — $ 150 in cash, and •the balance by a transfer of three shares of stock in the Bank of Cape Fear, marked No. 32. Accordingly, the negro was delivered and a bill of sale executed by the plaintiff in the usual form with a warranty of title and soundness, “ except a small rupture” ; and the $150 was paid, and a paper purporting to transfer the three shares of stoek was- signed by the defendant and accepted by the-plaintiff. This paper was drawn by the plaintiff, and, both parties, at the time it was signed, believed it to be-a valid transfer. It turned out not to. be so,, and. the-Bank refused to, recognize the plaintiff as the owner, of the stock, unless he procured a legal transfer to be made on the books of the corporation. The plaintiff called up-, on the defendant to make the transfer — he refused and. this bill was filed. The prayer is, that the defendant be-., decreed to execute a legal transfer of the stock, and be, enjoined from receiving the dividends.
    The defendant admits, that he refused to execute a, valid transfer of the stock, and alleges, that he had a., right to refuse, because the plaintiff cheated him in the. sale of the negro, by inserting the exception “ as to a small rupture” in the bill of sale without his knowledge,,, and because the rupture is in fact a large and serious, one, greatly impairing the value of the slave.
    
      W. Winslow and Haigh, for the plaintiff.
    
      Strange, for the defendant,, submitted, th.e following; points and authorities:
    He that seeks equity must do equity. Story’k Eq. Juiv Sec- 64. Iniquity bars equity.. Grounds and Rudiments of Law and Equity, 146. 1 Chan. Prec. 293.
    If the plaintiff has a remedy at law, he cannot proceed in Equity. Buckhead- vs. Colson, 2 Dev. and- Bat. Eq. 77'. Burroughs vs. McNeill, lb. 297. Armsworthy vs. Cheshire, lb. 234. Glasgow vs. Flowers, 1 Hay. 239. Perkins vs. Ballinger, lb. 367. Martin vs. Spicer and others, Ib. -869; Thorn and wife vs. Williams, 1 Car. Law Rep. 362.-— Wells vs. Goodbread, 1 Ire. Eq. 9.
    That a warranty broken can be given in' evidence on a suit for price of the article warranted. Chitty on Coin-tracts — ¿Step. N. P. 281,
   Pearson, J.

It was urged in the argument for the plaintiff, that stock in a Bank or manufactornig company eould not always be bought in the market, like cotton, corn, or government stock in England, and therefore Equity should decree a specific performance of contracts to convey such stock, because a recovery of the value will not, as a matter of course, enable the purchaser to get “ the thing!’ which he contracted for. There is some force in this suggestion, but it is not necessary to decide the question, as there is another ground, upon which the plaintiff is entitled to relief.

This is not merely an executory contract. It is an executed contract; or, at least, one, which the parties intended to be executed. The defendant paid the $150 and signed the instrument, which purports to transfer the stock, intending to execute the contract on his part. It was accepted as such by the plaintiff who delivered the negro and bill of sale, as ait execution on his part. It turns out, that the instrument is not effectual, by reason of a mistake as to the manner, in which the transfer is required to be made. The plaintiff seeks to 'have the mistake corrected. His equity is clear. He stands on higher grounds than one, who seeks the specific performance of an executory contract.

When an instrument is intended to carry an agreement into execution, but, by means of a mistake either of fact or of law, does not fulfill that intention by passing the estate or the thing bargained for, Equity corrects the mistake. In the exercise of this jurisdiction no distinction is taken in any of the cases between real or personal property, whether the mistake be in reference to a matter of law or of fact.

If a vendor, by mistake in drawing a deed, conveys land, which he did hot intend to sell, the mistake will be corrected. Pugh vs. Brittain, 2 Dev. Eq. 34. So, if a deed conveys only a life estate, when the contract Was for the fee simple. So, if a deed of bargain and sale, by mistake as to the necessity of enrollment, is not enrolled in six months, Equity will compel the execution of ano-, t.her deed, which may be enrolled. Curtis vs. Perry, 6 Ves. 745.

If a defective conveyance be made, as a mortgage in fee by fee-offment, without livery, Equity will make good this defect. So, when a power is defectively executed. Cotton vs. Sayer, 2 P. Wms. 623. So, in case of copy^ hold land, where the conveyance is not effectual for the want of a surrender. Drake vs. Robinson, 1 P. Wms. 442. In all cases, where the intention of the parties is to execute a contract by a conveyance, and their purpose is not effected, by reasou of a mistake, Equity gives relief ; for it is against conscience to take advantage of a mistake.

The defendant relies upon the ground, that he was cheated, and insists on the rule, that “a plaintiff must come into Equity with clean hands.” The rule is not applicable to this case ; for, the effect of it would be to allow the defendant to keep the negro, although he has only paid one third of the price he agreed to give — in other words, to take advantage of an admitted mistake, by way,of reprisal or set off, for the fraud alleged to have been practised upon him.

There is no proof of the fraud alleged, by inserting the words “with the exception of a small rupture” in the bill of sale, without the defendant’s knowledge. There .is some proof in reference to the extent of the rupture, but we do not feel called upon to declare how the fact is ; for, if the degree of unsoundness exceed that provided for in the bill of sale, the defendant has a plain and adequate remedy by an action at law upon the warrant}^. There is no principle of law, equity, or morals, by which he can keep the negko, and take advantage of a mistake to avoid paying the price.

If he had offered to rescind the contract, and to return the negro upon the repayment of the®250, he would have made out an equity provided the fraud had been proved. But to pay over one third of the price, refuse to pay the balance, and hold on to the negro, is a summary mode of redress, inconsistent with the course of this Court in the administration of justice.

The defendant must be decreed to execute a transfer of the stock to be approved by the Master, and of the dividends accrued, since the time of the contract, and to pay the costs of this suit.

Per Curiam.

Decreed accordingly.  