Magwood v. Lubbock , 8 S.C. Eq. 382 ( 1831 )

Johnson, J.,

delivered the opinion of the Court.

The satisfaction of the written mortgage has divested the complainant of the legal interest, which it gave him, in the steam boat Macon; and to give him a lien on her for the amount of the salt sold to Lubbock, it was incumbent on him, to have proved an agreement to that effect. Both Lubbock and Magson have positively denied the existence of such an agreement; and whatever suspicions the evidence of Charles Magwood may raise about the truth of their answers, it is a well settled rule in equity, that when a discovery is sought, the answer must stand for proof, unless rebutted by preponderating evidence. In this case there were two oaths against one, and that was intitled to weight: but it belonged to the Chancellor to judge between them, and to weigh the circumstances which corroborated the testimony of the witness ; and this Court will not interfere with his decision.

But assuming that the fact of the agreement is proved, M’Gregor stands on still higher ground. He positively denies notice of such an agreement, and the circumstances relied on, to shew that he had, are entirely too slight, to weigh against his answer: and he is a-purchaser for valuable consideration, and in possession. As a purchaser, without notice, his equity is at least equal to that of the complainant, supposing the existence of the agreement to have been fully proved ; and being in possession he must be protected.

The motion must therefore be dismissed, and the decree of the Chancellor affirmed.

O’Neael, J., and Harper, J., concurred.

Decree affirmed.