[Present, Chancellors Rutiedge, James and Taomesos-J

MAY, 1808.

#### William Read, *vs.*T. Gaillard, Administrator of T. Simons.

A person borrows a note from bis friend to be used ih bank, and promises by letter to give a bill of sale of particular personal property as a security.

The borrower of the note dies without giving the bill of sale, and tile lender is obliged to take up the note, He has a lien on the property promised to be secured to him in preference to other creditors.'

THE object of complainant’s bill was to have the benefit Si equitable lien on certain personal estate, founded on itten promise of the defendant’s testator to give a bill de of the same as a security.

The bill set forth that the late Thomas Simons, on or *553about the 29th October, 1804, wrote a letter to the plainant, of which the following is an extract:

“ I am in want of two thousand dollars for a short time : 7 you will much oblige me by lending me your note for that sum, which I will endeavour to have discounted, and J. will give you a bill of sale for my schooner and hands to reimburse you in cas'e of my death and other accident, so that you may not be put to the least inconvenience;” That agreeably to such request, and relying oh the security mentioned in the said letter, the 'Complainant lent his note, which was discounted, and the amount thereof received by the sáid Thomas Simons. The note was renewed at the end of sixty days, for the full amount, and before the renewed note became due, the said Thomas Simons died j in consequence of which, the complainant was obliged to pay the said note', and has never been reiniburs’ed; That the schooner alluded to was called the Mary & Susan, and the hands then employed on board of her were four negro slaves belonging to the said Thomas Simons. That after the death of the said Thomas Simons, the complainant applied to the defendant as administrator, and requested him to pay the said $>2000, with interest, or to deliver tip the said schooner and negroes, to be sold for payment Of the same *;*but that the defendant refused so to do, and has sold the said schooner and negroes, and received payment for the same, and converted the proceeds to some 'other use than payment of the complainant’s demand, which is contrary to equity. Complainant prays that defendant may render an account sales of the said schooner and hegroes, and be compelled thereout to pay the complain■ants demand and costs, and that complainant may be further relieved.

The defendáñt in his answer admits the letter, but says it is without date. He also says that the said Thomas Simons frequently had notes of complainant’s discounted, and refers to the accounts filed with his answer. Defendant says he believes the schooner and negroes to be the *554same as described in complainant’s bill. Admits the application for delivery or payment, and refusal, saying that' the estate of his intestate is insolvent, and that he is bound. to pay the debts in the order prescribed by law. Defendant also says, that it appears by the accounts filed with his answer, and other papers, that the complainant is indebted to the estate of the said Thomas Simons, which ought to be set off against said demand.

The case came to a hearing.

The letter of Mr. Simons to. the complainant was produced in evidence; it was written on the 29th Oct. 1804, and corresponded with the copy set forth in the bill of complainant. Mr. Simons died in January, 1805.

Mr. Pmngle for complainant,

argued that the letter of the deceased Mr. Simons gave a lien on the property. It was in fact equivalent to a mortgage, and gave a real and direct *lien;*but at all events it was an equitable lien which this court would enforce. The court would consider that done which was agreed to be done, and would give it effect. The complainant, it is conceded, has paid the note, and he is entitled to have the benefit of the engagement to secure it. The letter not being recorded till the death of Mr. Simons, makes no difference as to general creditors, whatever it might have done as to other mortgagees, if there had been any who had recorded their mortgages, but there are none such.

Mr. Gaillard for defendant.

He insisted that this was a mere promise never performed, and that it could hot form a lien. The intestate never gave the bill of sale, And the complainant never required it. The presumption arises that it was given up, and not intended to be required. The complainant had endorsed before for the intestate, without requiring any security. The intestate kept, possession also of the property, nor was the letter recorded till after the death of Mr. Simons. It would be dangerous to set up these latent liens, as it would open a door to frauds, though the character of the present parties would forbid any suspicion attaching to them; and the setting up *555such equitable and latent liens, is opposed to the policy of .our law, which prescribes publicity. It directs mortgages to be recorded, in order to be a warning to others; and to secure this object, it gives priority to the first recorded mortgage.

It would also tend to defeat the regular administration of the estates pf deceased persons, according to the order prescribed by statute.

Chancellor James

afterwards delivered the decree of the court;

Complainant states in his bill that the testator of defen-- * , dant, in his lifetime, being in want of $2000 to pay up Ins debt at the South-Carolina Bant, applied by letter to complainant to lend him his note for' that amount, and promised that he would secure him by giving him a bill of sale of his schooner, and his working hands on board. That complainant lent defendant his said note, and the defendant died shortly afterwards, and complainant has since been obliged to pay the same. Complainant seeks payment, and to have his equitable lien on said schooner and hands, established by the court. Defendant states that the estate of his intestate is insolvent, and that he is bound to pay the debts in the order prescribed by law ; he also charges that complainant is indebted to the estate of Thos. Simons.

In this case it does not appear from any evidence that there was qny mortgage, judgment or incumbrance upon the estate of Thomas Simons, which could claim priority to the demand of complainant. It is indeed stated that Thomas Simons, before the date of his letter, had prevailed upon defendant to become bis endorser to a great amount at the bank, which he has since been obliged to pay. Then at the bank, complainant and defendant have both been obliged to pay notes, and at law, would have both stood upon an equal footing, had it not been for the preference given to the complainant by Thomas Simons in jiis life time. That he had it in his power to give such. *556preference, cannot be *denied;*nor can it be doubted while Courts of Equity are guided by that important rule of con-. sidering what ought to have been done as done, that complainant has an equitable lien upon the schooner and hands for the payment of his demand. The intestate says in his letter — “ I will give you a bill of sale for my schooner and hands to reimburse you.” The bill of sale must then be considered as made.

Therefore let the amount of the sale of said schooner and hands be appropriated towards paying off the demand of complainant, except the discount hereafter mentioned *;*and let the overplus be paid to the defendant to be administered by him according.to law. And let, it be referred to the master to ascertain whether complainant was indebted to the intestate, and if so, let that sum be a set off against his demand so far as it may go.