#### BARDEN TOLER v. JOHN C. PENDER et al.

A conveyance, in the form of a mortgage, securing a specific debt, but admitted by the defendants to he intended as an idemnity against the costs of a lawsuit, cannot be supported upon the ground that it is held as a means of enforcing the execution of an agreement for giving the defendant a part of the property recovered in that lawsuit.

The plaintiff, Barden Toler, filed his bill against Stephen Boyd, John ,C. Pender, and Blany Coor, and therein charged, that one Nehemiah Toler had obtained judgment against Him, in the County Court of Wayne, in an action of detinue, for several slaves: that he applied to the •defendants to become his sureties for a certiorari or appeal upon this judgment, to the Superior Court of Wayne: that they consented, upon the condition of being indemnified against loss: that it was thereupon agreed that he should execute unto them a mortgage of certain lands and negroes, for the purpose of saving them harmless from said surety-ship : that one Calvin Coor, the brother of the defendant Blany Coor, was employed by the defendants to draught the said mortgage: that two deeds were prepared by the said Calvin, under the direction of the defendants, and *446were executed by him, upon the representation that they were proper to carry into effect this contract of indemnity. Copies of these deeds were appended to the bill, from which it appeared that the plaintiff was a marksman, and could not write. One of them was a deed of bargain and sale; whereby, in consideration of the sum of twenty-six hundred dollars, thereby acknowledged to be received, the plaintiff bargained and sold to the defendants,- several negroes, and other personal property, with condition to be void, upon the repayment of the said sum to the defendants, with interest; and the other was also a deed of bargain and sale, whereby the plaintiff, in consideration of the sum of six hundred dollars, acknowledged to be received, bargained and sold certain tracts of land to the defendants, to hold for the term of three years, upon condition that the same should be void on repayment of the said six hundred dollars, with interest. The bill expressly charged that these deeds were executed upon no other consideration, and for no other purpose than to indemnify the defendants against their liability as his sureties : that this liability had entirely ceased; for that the plaintiff had finally succeeded in the Superior Court in reversing the judgment of the County Court, and had fully paid off all the costs for which he was answerable in that suit; but that the defendants had caused an action of detinue to be brought against him for the negroes named in one of the deeds; and were setting up a title to the land comprehended in the other: and also charged that, pending the suit between him and Nehemiah Toler, the defendants Blany Coor and John C. Pender, had held possession respectively of some of the mortgaged negroes, and had received and retained the profits thereof: and the plaintiff prayed for a perpetual injunction of the suit at law: that the said deeds might be surrendered and cancelled: that the defendants, Coor and Pender, should account for the profits of the negroes while in their possession; and for general relief.

December, 1836.

To this bill the defendants put in several answers.

The defendant Boyd admitted by his answer, that so far as he was concerned, the deeds were made to indemnify him against his liability for becoming a surety to the *447 certiorari bond, but averred that the plaintiff, at the same time promised to pay him twenty-five dollars, should the plaintiff fail in the suit; and one hundred dollars, should he succeed, for his services in writing notices, for taking depositions, and in attending to the taking of depositions in said suit; and he admitted that since the determination of that suit, the plaintiff had paid him the one hundred dollars according to promise. The defendants, Coor and Pender, set forth in their answers, that the plaintiff had repeatedly solicited them to become his sureties on the bond for a certiorari; that they at length yielded to his importunities, upon the express agreement that the plaintiff should execute to them conveyances for two of the negroes in dispute, free from all conditions and incum-brances, except the title of Nehemiah Toler: that relying on this engagement, they executed the bond as his sureties; but that the plaintiff did not make the conveyance stipulated: that afterwards, the deeds in question were executed by the plaintiff, not as a substitute for the former agreement, nor for the purpose of releasing the same, but “ for the purpose of giving to them an additional security against loss, by reason of their said suretyshipand they admitted that neither of them had sustained any injury thereby; but they insisted, that after the termination of the suit of Nehemiah Toler in favour of the plaintiff, he had refused to execute a conveyance for the two slaves, agreeably to his promise; and they declared that they had brought the action of detinue complained of, as the means of coercing him to render them justice in that respect.

They both professed a willingness to forego any legal advantage which they might have under the said deeds, if the plaintiff would convey to them the two negroes, which they were to have absolutely; but prayed if the plaintiff would not execute this engagement, that he should be held to the literal terms of the deeds, and not be permitted to vary the same by parol evidence; which said deeds they averred were not obtained from him by any misrepresentation or fraud, but were drawn up at his own suggestion, by Calvin Coor, who had been employed by him to prepare them. The answer of the defendant Coor, admitted that *448he had held possession of some of the mortgaged negroes, during a part of the time the suit of Nehemiah Toler was pending; but insisted that he held them by a contract of hiring, made with the plaintiff, and had paid up such hire in full. The other defendant, John C. Pender, by his answer, denied that he had at any time held possession of any of them.

To these answers the plaintiff replied generally; and a great mass of testimony was taken on both sides.

Devereux, and J. H. Bryan, for the plaintiff.

W. C. Stanly, for the defendants.

Gaston, Judge,

after stating the facts as above, proceeded as follows : — We deem it unnecessary to comment upon the proofs, for upon the pleadings it appears to us clear, that the plaintiff is entitled to relief. There is no allegation in the bill, upon which we can examine the right of the defendant Boyd, to retain the reward of one hundred dollars, received for his alleged services. We cannot, as this bill is framed, compel him to refund it; and whether he has obtained this rightfully or wrongfully, it is all which he claims of the spoils. After the distinct admission by the defendants, that the deeds in question were executed and intended simply and solely as an indemnity, to save them harmless against their liability as the surety of the plaintiff, this court must act upon the deeds as though they had been drawn up in proper terms to express that intent. It would be monstrous if the incapacity, or ignorance, or fraud, of the draughtsman, should, in a court of conscience, give operation to an instrument, inconsistent with the acknowledged intention of all the parties thereto. Nor will this court permit the defendants, Coor and Pender, to avail themselves of these deeds, as a security for enforcing the-performance of the agreement, which they set up, by their answer, even if such agreement were proved beyond dispute. It is an agreement abhorrent to morals, as having been extorted from a distressed man; contrary to public policy, as creating interests unfavourable to the impartial administration of justice ; against the principles of the common law, and interdicted by positive *449statutes. It is founded in champerty, the most odious species of maintenance, and far from vesting rights worthy of the jurisdiction of a court of equity, makes out a case perhaps better fitted for the animadversion of a criminal court.

The plaintiff is entitled to the perpetual injunction which he prays for, to have the deeds surrendered and cancelled; and to have a conveyance from the defendants, of every right which they, or any of them, can set up under them. We do not examine into the evidence of the matters of account between the plaintiff and the defendants Coor and Pender. As to them, the! plaintiff may have a reference if he requires it. All the costs, both at law and equity, up to the taking of the account, must be paid by the defendants. They are each and all of them liable therefor, having joined in the action which gave occasion for this bill.

Pur Curiam. Decree accordingly.