Opinion
(August Term, 1860.)
The right of a creditor to have a specific lien which is about to fail from the mistake of a draftsman set up in a court of equity is superior to that of the general creditors of an insolvent intestate who have no lien.
CAUSE removed from the Court of Equity of CATAWBA.
Bynum for plaintiff.
McCorkle for defendants.
The plaintiff became the surety of Joseph Fry in a note for $100 to one Rhyne, and to secure himself against loss on account of this note he took from the said Fry a deed of trust for a town lot, in the town of Newton, properly worded for that purpose, except that in stating the consideration the draftsman accidentally and by mistake left out the word "dollar" after the word "one," which it was the intention of the parties should be expressed as one dollar; and except, also, that by accident and mistake in the habendum of said deed of trust, instead of limiting the estate in the premises to the plaintiff "N. H. Huffman and his heirs," the said deed is written so as to limit such estate to the said "Joseph Fry and his heirs." The said deed was duly proved and registered. The bill sets out that the plaintiff has been obliged to pay the debt to Rhyne; that the said Fry is now dead, and that his estate has been exhausted in the payment of his debts, and that his debt will be entirely lost if this lien is not established. He therefore prays that the deed may be corrected so as to express the intention of the parties, and that the property may be ordered to be sold under a decree of the court. The answer of the defendants, who are the widow and administrator of Joseph Fry, does not contest the facts or the principle asserted (416) in plaintiff's bill, except that it insists that the other creditors of the estate of Joseph Fry are as well entitled to the satisfaction of their debts as the plaintiff, and that as some of them have already obtained judgments binding the assets, that it would not be equitable for the court to interfere and give the plaintiff a preference over them.
We are entirely satisfied, from a consideration of the pleadings and the proofs in this cause, that the omission and error alleged in the deed of 14 August, 1857, are faults of the draftsman. Indeed, this is so manifest upon inspection that proof can hardly make it plainer. The only question is that raised in the answer, whether the equity of the complainant is superior to that of the other creditors in equal degree of Joseph Fry, he being now dead and his estate insolvent. And this, we think, is free from doubt.
The general creditors of the deceased have obtained no specific lien upon the lot of land in the mortgage deed, and it is not, therefore, a contest between the creditors as to priority of lien. It will be found by a reference to the cases in which it has been held that equity will not interfere as between creditors to deprive one of a legal advantage, that they are all cases in which contesting creditors had obtained specific liens. The principle does not apply to a case like that now before us, where the contest is between a creditor who has in equity and conscience a right to a satisfaction of his debt out of a specific thing and general creditors who have no such right.
Smith v. Torrentine, 55 N.C. 253, was a contest between creditors under separate deeds of conveyance; the first being inoperative from an alleged mistake in the draftsman, the Court decided it would not interfere to deprive the latter of his legal advantage. With the principle established in that case, we now entirely concur; but it differs from the one before us in this: The creditors who are disputing (417) the plaintiffs' lien in our case have none of their own, and are only general creditors of the deceased debtor.
We are of opinion that the plaintiff is entitled to the relief which he asks — to a correction of his deed and to foreclosure.