Huffman v. Fry, 58 N.C. 415, 5 Jones Eq. 415 (1860)

Aug. 1860 · Supreme Court of North Carolina

58 N.C. 415, 5 Jones Eq. 415

N. H. HUFFMAN against EMMA FRY AND OTHERS.

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 county..

The plaintiff became the surety of Joseph Fry in a note for $100, to one Ehyne, and to secure himself agáinst loss on account of this note, he took from the said Fry a deed of trust for a town lot, in the town of FTewton, properly worded for that purpose, except that in stating the consideration, the draftsman accidently, 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 hdbendvm of said deed of trust, instead of limiting the estate, in the premises, to the plaintiff, “ FT. U. 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 Ehyne ; 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 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.

Bymtm, for the plaintiff.

MoOorlde, for the defendants.

Manly, J.

"We are'entirely-satisSed from-amonsideration of the pleadings and the'p’roofs ’in this cause, 'that the omission and error alleged in the deed of .14th of August, 185.7, are faults of the draftsman. Indeed, this is so manifest, upon inspection, that proof can hardly male 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 eqiral 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 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 the contesting creditors had obtained speeijie liens. The principle does not apply to a case, like that now before ns, 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.

The case of Smith v. Torrentine, 2 Jones’ Eq. 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 t© deprive the latter of his legal advantage. With the principle established in that case, we now entirely concur; but it differs from the oue before ns, in this : the creditors who are disputing the plaintiff’s 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.

PeR Curiam, Decree accordingly.