CRanch, C. J.,
(after stating the substance of the bill and answers,) delivered the following opinion :
The defendants, Cathcart and Woodside, now move for a dissolution of the injunction.
The only important averment of the bill which is denied by [597]*597either of the answers, is that which charges that the defendant Woodside was privy to the arrangement made for the assignment to the complainant of the Spanish claim.
It is very doubtful whether the alleged misrepresentations, previous to the conclusion of the contract, can be given in evidence at all, in this case, no fraud being charged. Iraham v. Child, 1 Br. C. C. 91. But, admitting that they may, their averment in the answer, not being responsive to any allegation of the bill, is not, per se, evidence against the complainant. They constitute an independent defence, (if they be a defence,) consistent with all the allegations of the bill. The answer of a defendant, in order to be evidence in his favor, must be an answer to a fact averred in the bill, and not an answer to a mere inference of law. The claim of a right to a decree for specific performance is not such an averment as will make the defendant’s allegation of new justificatory facts (not repugnant to the averment of facts in the bill,) evidence for the defendant.
Laying aside, then, all the allegations in the answers which are not responsive to the averments in the bill, the principal question is, whether, exclusive of the averment of Mr. Woodside’s privity in the arrangements of Mrs. Cathcart for the assignment of his Spanish claim, there be equity enough left in the bill to support the injunction till final hearing.
Upon this question it is material to inquire whether the equity of Mrs. Cathcart, whose interest is set up as a bar to the relief sought by the complainant, be equal to that of the complainant; for it is only between equal equities that the rule applies, “prior in tempore, potior injure."
The deed of trust to Mr. Woodside is a mere voluntary assignment, without any consideration averred, excepting the existence of two prior assignments, equally voluntary, and made directly from the husband to the wife. (See 1 Maddox, 216, &e.) A voluntary conveyance is void as to subsequent purchasers for valuable consideration, even with notice. (See also Sugden, 434, 439; Leach v. Dean, 1 Rep. in Chancery, 146; Parry v. Corwarden, Dick. 544; Powell v. Pleydell, 18 Vin. Ab. D. pl. 5.) And, as it is not provided in the deed that the property should be free from the control of the husband, it seems probable, that, as soon as any part of the money came to the hands of the wife, it would be vested absolutely in the husband.
But the complainant stands in the position of a subsequent purchaser, for valuable consideration, without notice. Bath and Montague's Case, 3 Ch. Ca. 123. It is evident that the Spanish fund entered into all the considerations of the complainant and Mr. Cathcart, from the very commencement of the negotiation to [598]*598its consummation. The complainant would not have contracted with the defendant but for that fund; and it is evident, both from the bill and answer, that he must depend upon that fund to reap the benefit of his contract.
These circumstances, in my opinion, place him on higher equitable ground than that on which Mrs. Cathcart stands, even without supposing her to have been present at the bargain, and not objecting, or mentioning her claim, as averred in the bill and not denied in the answer. (Sugden, 434, 439, 477, 480, 482; Sexton v. Wheaton, 8 Wheat. 239.)
If the subpoena had been served upon Mrs. Cathcart, I should have thought that her answer would have been indispensable before the injunction could be dissolved. Service upon the husband alone is good service of the subpoena when husband and wife are codefendants, (Eden on Injunctions, 52; Sir William Pulteney v. Shelton, 5 Ves. 147, corrected by the errata ; and the Court will not dissolve an-injunction until all the defendants have answered; Eden, 89,) and as. Mrs. Cathcart’s trustee and her husband are made parties, and have been summoned, and as there can be little doubt that she has knowledge of this bill, and might have appeared and answered if she would, I am still strongly inclined to think that that circumstance is a sufficient ground to refuse a dissolution of the injunction at this time.
But it is contended that the Court cannot decree specific execution of a contract to give collateral security. I know of no decision to that effect. None such has been cited. (2 Com. Dig. Chan. 2, C. 16; Buxton v. Lister, 3 Atk. 383; 2 Com. Dig. 340, 2 C. 1.)
As to the claim of Mr. Smith, it may be observed, that the answer of one defendant is not evidence for another. It is a sufficient answer to this claim, that Mr. Smith has not answered the bill, and therefore the injunction cannot be dissolved in his favor; ánd, as Mr. Woodside admits, in his answer, that he had drawn a bill in favor of Mr. Smith for the whole amount of the fund, it cannot be dissolved in favor of Mr. Woodside; and no one will contend that Mr. Cathcart is entitled to receive the fund in violation of his contract with the complainant, his assignment to Mr. Woodside, and the bill in favor of Mr. Smith.
It is said, also, that the Court cannot decree a specific performance of a contract by the husband to convey the property of his wife.
But it is yet to be determined whether this is the wife’s property, as against this purchaser, for valuable consideration. A like answer maybe given to the objection, that the Court will not decree a performance which would be a breach of trust. It is [599]*599yet to be determined whether the trust is not void as against this complainant.
I give no opinion as to the objection that the bill in Alexandria is taken for confessed; as it seems to be admitted that it was intended to file an answer in that case ; and as this really involves the whole question there.
I do not think that the agreement itself will bear the construction, that “ the penal sum of $1000,” is to be considered as liquidated damages. (Howard v. Hopkins, 2 Atk. 371.) There is no case in which such a construction, has been given to such an instrument; and the averment that such was the understanding of the parties, if allowed to be a defence, must be proved by other evidence than the answer of the defendant. Upon .the whole, I think the injunction ought to be continued until final hearing.
I give no opinion as to the effect of the injunction upon the officers of the treasury department; if they choose to respect it, very well; if they do not, it will be then time enough to question the power of this Court to enforce it.
ThRüston, J., did not concur; and Moksell, J., not having heard the argument, gave no opinion.
The effect of this division of opinion was, that the injunction could not then be dissolved, and the cause was continued to the next term.
After the foregoing opinion was delivered, Mr. Coxe, the defendant’s counsel,, suggested a doubt whether the ground taken in that opinion was correct, viz. : That the answer is to be considered as evidence for the defendant, so far only as it is responsive to some allegation in the bill; Mr. Coxe seeming to be of opinion that the answer is to be taken as true in every particular, in the same manner as if the cause were set for final hearing upon bilí and answer; and in support of his view of the casé, he cited Barret v. Blagrave, 6 Ves. 104; Hanson v. Gardner, 7 Ves. 305; Gourlay v. Duke of Somerset, 1 Ves. & Beame, 68 ; Bishton v. Birch, Id. 365; and 2 Ves. & Beame, 40, 44, S. C.; Kingston v. Eve, 2 Ves. & B. 349; Couch Sf al. v. President and Directors, Sfc. 4 Johns. Ch. R. 26.
In answ'er to this suggestion, Ckaxch, C. J., submitted to the counsel for the parties, in vacation, the following opinion : —
When the plaintiff has replied to the answer, and the cause is at issue, I presume it will not be denied that the answer is evidence for the defendant, so far only as it is responsive to some allegation in the bill. If this position be denied, I refer to Beckwith v. Butler, 1 Wash. 225; Hoomes, Executor of Elliott, v. Smock, 1 Wash. 389; Chapman v. Turner, 1 Call, 286, 288; Maupin v. Whiting, 1 Mun. 373, 398; Pryor v. Adams, 1 Call, 382, 394; Bullock v. Goodall, 3 Call, 44; Auditor v. Johnson, [600]*6001 Hen. & Mun. 537, 542; Dangerfield v. Claiborne, 2 Hen. & Mun. 17; Page v. Winston, 2 Mun. 298; Scott v. Gibbon, 5 Mun. 86; Thompson v. Strode, 2 Hen. & Mun. 19; Leeds v. Marine Ins. Co. 2 Wheat. 383 ; Young v. Grundy, 6 Cranch, 51; Hart v. Ten Eyke, 2 Johns. Ch. R. 287; Ringgold v. Ringgold, 1 Har. & Gill, 28. I do not remember that I ever heard this point controverted, and I am sure that it has been considered by this Court as completely settled for more than twenty years.
The only reason why the answer of the defendant is considered as evidence in his favor, is, that the plaintiff has called upon him to answer as a witness, and is therefore bound to admit his answer, so far as he has called for it, to be primd facie true, and as worthy of credit as the testimony of any other witness. But when the defendant, in his answer, avers a fact respecting which the plaintiff has not required his answer, there is nothing to make that averment evidence for the defendant; and it stands on ihe same ground as the averment of a defendant at law in the ordinary course of pleading, and must be sustained by evidence aliunde. The case is different when the cause is set for hearing on bill and answer, without a replication. It is stated in Cursus Cancellariae, 149, that “ when the plaintiff finds sufficient matter confessed in the defendant’s answer whereon to ground an order or decree, he may proceed to a hearing upon the bill and answer,” “ and in such cases the answer is to be admitted true, in all points as to the particulars charged in the bill; and no other evidence is to be read than what arises from the answer itself.”
And in Harrison’s Ch. Pr. 601, it is said, “ The method of hearing a cause, upon bill and answer, is generally thus: after the substance of the bill has been opened by the junior counsel, and the matter of equity thereof duly represented to the court, the answer of the defendant is to be stated in the same manner by his counsel, and must be admitted as true in all points as to the particulars charged in the bill, and no other evidence is to be given than what arises from the.answer itself, or being matter of record to which the answer refers, and which js provable by the record. But note; in many instances, though the cause requires no witness, yet it may be necessary for the plaintiff to reply, &c., whereby the defendant will be put upon proof of his ansvvei;, and the plaintiff admitted to prove the matters of the bill.”
Although these authorities seem to show that the answer is to be taken as true only in regard to “ the particulars charged in the bill,” yet I apprehend the rule to be, that when the plaintiff sets the cause for hearing upon bill and answer, without a replication, which he always has a right to do, the answer must be taken to be true in all its allegations, whether they be or be not [601]*601responsive to the allegations of the bill; and the reason is, because the plaintiff, by setting the cause for hearing on the bill and answer, has deprived the defendant of the power of proving .them by evidence aliunde. The setting the cause for hearing on the bill and answer is the plaintiff’s own voluntary act, and the defendant has no right to ask for a commission to examine witnesses, nor to produce any evidence whatever, other than his own answer. He cannot object to the trial of his cause upon his own representation of it.
But upon a motion to dissolve an injunction, the case is different. It is a motion made by the defendant against an unwilling plaintiff. The motion must be heard whether the plaintiff consent or not. He has done nothing to prevent the defendant from proving his case by the ordinary modes of proof. He has not waived his right to reply to the answer, and to put the defendant to his proof. He has either replied, or may reply; and his not having replied, at the time the motion is made, is not an admission of the truth of the answer. The motion is generally made upon filing the answer, and before the plaintiff has had time to consult counsel, whether to except or to reply.
It has been the uniform practice of this Court to refuse to dissolve the injunction, unless the answer deny fully and explicitly all the equity of the bill, although no exceptions are taken to the answer. In Young v. Grundy, 6 Cranch, 51, the Supreme Court of the United States said, “ If an answer in chancery neither admits nor denies the allegations of the bill, they must be proved on the final hearing; but upon the question of dissolution of an injunction, they are to be taken as true.”
I imagine, therefore, that the plaintiff was not bound to decide whether he would, or would not, reply upon the hearing of the motion to dissolve. But in this case, before the argument upon the motion to dissolve was concluded, I recollect hearing Mr. Tones direct the clerk to enter a general replication to the answers. This, however, I did not deem important at that time, for I then supposed, and still suppose, that while the plaintiff has the right to reply, the answer, so far as its character and effect as evidence is concerned, must be regarded in the same manner as if the replication had been filed. If not, the injunction might be dissolved on motion, and reinstated upon final hearing, upon the same evidence. For it may happen that upon the final hearing, the defendant may not be able to bring any evidence in support of the new and irresponsive allegations set up in his answer, and upon the strength of which the injunction was dissolved; and the whole equity of the plaintiff’s bill may, as in the present case, stand admitted by the answer.
[602]*602In the mean lime, however, irreparable injury may have been done by dissolving the injunction. The safest course, therefore, is that which this Court has always pursued ever since its establishment in 1801, to wit, to consider the answer as evidence only so far as it is responsive to the allegations of the bill, unless upon final hearing on bill and answer.
Before I proceed to notice the cases cited in support of the doctrine, that upon the motion to dissolve an injunction, the answer must be considered as true in every particular, I would observe that there seems to be a difference, in practice, between the Courts of Chancery, in England, and the courts of Maryland and Virginia, whose practice this Court adopted as it found it, when this Court was first established.
In England, in general, injunctions are not granted until the time for appearing, or answering, which is very short, has expired, and the defendant has failed to appear, or to answer, when, if an injunction has been prayed by the bill, and affidavit made, it is issued, of course, until answer. Upon thev coming in of the answer, the injunction is dissolved, of course, by its own limitation, unless the plaintiff, having had notice, show cause for continuing it. Eden, 55, 57, 59.
“ Though an injunction” (in England) “will not be granted before answer, on the sole ground that the plaintiff” (at law) “ will otherwise be entitled to sue out execution before the common injunction can be obtained, yet special injunctions to restrain proceedings at law, will sometimes be granted, where the plaintiff has had no opportunity of obtaining the common injunction.” Franklin v. Thomas, 3 Merivale, 225. As in the case of Annesley v. Hookes, 3 Meriv. 226, where upon affidavit of facts, “ it being the vacation and no subpoena returnable until the next term, Lord Eldon granted the injunction ; the plaintiff undertaking to serve the defendant with immediate notice, and with liberty to the defendant to apply during the continuance of the sittings.” Eden, 64.
“ The injunction, issued for the default of the defendant in not appearing or answering, is called the common injunction.” Eden, 68. A special injunctionis generally granted, until answer or further order. Eden, 325. “A special injunction is usually obtained, upon motion, on certificate of bill filed and affidavit filed verifying the material circumstances. But in the vacation, when the court does not sit, and no motion can consequently be made, a judge of a court of equity will grant an injunction upon petition, with affidavit, and certificate of bill filed.” Eden, 320. No bond or security are required. “If it be granted before answer, ’tis commonly till answer and further order.” Eden [603]*603says “ or ” further Order. “Where an inj unction is so granted, then, after answer has come in, if the counsel of the defendant allege that the defendant has answered and denied the whole equity of the plaintiff’s bill, (his contempts, if any, being cleared and his appearance entered,) and also produce a certificate from the six clerks that the answer has been filed fourteen days at least, the court will, on such counsel’s motion, order the injunction to stand dissolved at a short -day, nisi causa, &c.; and perhaps without such certificate. If, at the day, no cause be shown, then, upon affidavit of due service of the order, and on motion, the order will be made absolute.”- Practical Register in Chan. 198, 199.
But here, according to the practice of Virginia and Maryland, as adopted in this Court, injunctions are generally granted by a judge in vacation, and are to continue until the further order of the Court. If they are to stay judgments at law, bond and security are required. Upon filing his answer the defendant gives notice of his motion to dissolve; and he must support his motion by showing that he has answered all the equity of the bill. Upon the motion to dissolve, all the allegations of the bill, not denied by the answer, are to be considered as true. Young v. Grundy, 6 Cranch, 51.
But it is contended, that in England, upon the motion to dissolve, or rather, upon the rule to show cause, the answer is to be considered as true in every particular. No case is cited in which that point has been decided ; but cases are cited which, it is said, seem to take the principle for granted, by deciding the question of dissolution upon facts, stated in the answer, which are not responsive to any allegation of the bill. Admitting that to be the fact, that is, that in those cases the court dissolved the injunction upon irresponsive facts set up in the answer, no objection having been made upon that ground, I do not think the cases ought to be considered as overruling the general principles which I have adduced in support of the contrary doctrine.
Let us now, however, examine those cases.
The first is Barret v. Blagrave, 6 Ves. 104. The marginal note of the case is, “ The injunction obtained upon a breach of covenant, in nature of a specific performance, dissolved upon the answer, contradicting the affidavits, and showing consent for several years.”
The injunction had been granted upon default of appearance, and upon affidavits stating that the defendant held under a lease from the proprietors of Vauxhall gardens, by which the tenant had covenanted not to carry on the trade of victualler, retailer ' of wine, &c., or any employment that would be to the damage [604]*604of those proprietors; upon penalty of forfeiture of the lease, and payment of & 50 a month to the lessors. That the defendant kept a house of public entertainment where all sorts of refreshments and liquors were supplied, so as very materially to interfere with Vauxhall gardens; above one hundred persons in a night having quilted the gardens and gone to this house for refreshment and returned to the gardens afterward.
The answer denied, that the defendant kept such a house as contemplated by the covenant in the lease ; that it was fitted up to accommodate persons coming from Vauxhall; that he retailed liquors; and that any persons resort to the house from the public gardens for refreshment and return afterwards.
It averred that the defendant kept the same kind of house, with the knowledge of the lessors, before and at the time the lease was signed; and before the execution of the lease the agent of the lessors signed a momorandum consenting that this trade should not be considered a breach of the covenant, and stating that the tenant’s mode of using the house was not injurious to the proprietors of the gardens nor contrary to the lease; that the defendant continued to carry on the business in the same way from that time to the date of the injunction, (II years,) without objection. That the persons resorting to the house consist of hackney-coachmen, mechanics, &e., and the business is confined to the sale of meat, as a cook’s shop.
It will be perceived at once that the answer denies all the facts raising the equity upon which the injunction was granted ; and upon that ground the injunction was rightly dissolved. It is true that the Chancellor said that the case made out by the plaintiff’s affidavits, upon which the injunction was granted, was within the terms of the covenant, and stated the long acquiescence of the plaintiff as a reason for refusing to decree a specific performance of the covenant, although that acquiescence was a fact stated in the answer, and was not perhaps strictly responsive to any allegation of the bill; but not having the bill before us we cannot say whether it was responsive or not. As there was, without that fact, sufficient ground for dissolving the injunction, it is not probable that the Chancellor ever considered whether it was or was not responsive to the allegations of the bill.
The next case cited, is Hanson v. Gardner, 7 Ves. 305. This was “ an injunction against cutting; and pasturing cattle in a wood; the plaintiff praying the injunction as tenant in fee ; oí-as lord of the manor inclosing under the statute ; the defendants denying the former title ; and as to the latter claiming common of pasture and estovers; and stating that after the inclosure, sufficient common of pasture would be left.”
[605]*605Here it will be observed that the title in fee, set up by the plaintiff, is expressly denied by the answer. The other title, that is, as lord of the manor inclosing under the statute of Merton, could be claimed only by an averment that the plaintiff had left the tenants sufficient common of pasture and estovers. The denial, therefore, of the defendants, in their answer, that the plaintiff had not left them sufficient common of pasture was the direct denial of an allegation which was, or ought have been in the bill, so that the whole equity of the bill was denied by the answer ; and the injunction must have been dissolved without recurring to other facts stated in the answer which were not strictly responsive'to any allegation of the bill; and if the Chancellor, in giving his opinion, referred to those facts, without regard to the question of their responsiveness, it affords but a weak argument in support of the doctrine, that upon a motion to dissolve an injunction, the answer is to be considered as true in every particular.
The next case is that of Gourlay v. Duke of Somerset, 1 Ves. & Beames, 68.
In this case the plaintiff, who had been in possession of the land three years under the defendant’s written agreement, sought a specific performance of the agreement, and an injunction to restrain the defendant from proceeding at law, in ejectment. The defendant, in his answer, admitted the agreement, but alleged specific instances of improper cultivation of the farm, and waste by the plaintiff; and the plaintiff’s refusal of the lease, when tendered by the defendant, the plaintiff saying he considered the agreement sufficient for him.
The Chancellor continued the injunction upon the plaintiff’s agreeing to deliver possession when required by the court, and paying the rent due, notwithstanding the facts thus set up in the answer ; which seem to have been admitted as true both in the argument of counsel, and in the opinion of the court; no. objection having been made on the ground of their not being responsive to the bill. And upon the want of that objection rests the weight of the argument to be drawn from that case.
The cause was argued by able counsel on the part of the plaintiff, and their failing to object to the answer as evidence of those facts affords strong ground to believe that such an objection would not have been sustained. But it is not a decision upon the point ;■ the Chancellor did not dissolve the injunction upon those facts ; and, at most, it only shows that such facts may be taken into consideration by the- Chancellor, in a question to his discretion, which.a prayer for specific performance always is, but not in every question of dissolution of an injunction. ’
[606]*606The next ease cited is Bishton v. Birch, 1 Ves. & B. 365.
An injunction to stay proceedings at law had been obtained for want of an answer; and the plaintiff, on affidavits, moved to extend the injunction to stay trial at law. This was objected to, on the ground that the answer was just filed at the time of hearing the motion. Before the motion was decided the plaintiff filed exceptions to the answer, and the defendant submitted to make a better answer. The Chancellor being of opinion that an insufficient answer is no answer, extended the injunction to stay the trial. I do not see what bearing this case has upon the present question. The most, that can be inferred from it, is, that if the answer had been good the Chancellor would not have extended the injunction to stay trial.
The next case cited is Bishton v. Birch, again, in 2 Ves. & B. 40, 44.
The points decided in the case are, 1st, That an injunction to stay proceedings at law, is dissolved upon the master’s report that the answer is sufficient, (the plaintiff having filed exceptions to the answer, by way of showing cause why the injunction should not be dissolved,) and the order for dissolving the injunction is not suspended by the plaintiff’s filing exceptions to the master’s report. And 2d, That the order extending the injunction to stay trial at law, falls with the original injunction, and the plaintiff cannot, afterwards, show cause on the merits. The reason stated is, that when the plaintiff shows exceptions for cause, he comes under the obligation to procure the master’s report of insufficiency in four days. ■
I do not see how this case bears upon the argument, or how it tends to show that upon the motion to dissolve, the. answer is to be taken to be true in every particular.
The next ease cited is Kempton v. Eve, 2 V. & Beames, 349. The bill stated a lease. The answer denied the existence of the lease, and stated that the pretended lease, which was made under a power, was void. This answer seems to be responsive to the bill, and as the injunction was dissolved upon that allegation, the case furnishes no argument upon the present question.
The last case cited is that of Couch et al. v. The President and Directors of the Ulster and Orange Turnpike Company, 4 Johns. Ch. it. 26.
In that case the question was not made whether the facts stated in the answer were responsive to the allegations of the bill. That point seems to have been taken for granted; and it is evident that the material allegations of the bill upon which the plaintiff’s equity was founded, were denied by the answer. The bill stated that the commissioners of the road had so long delayed to make [607]*607the assessment, that the time given, by the charter, to the plaintiffs to make their proportion of the road instead of paying their assessment in money, had expired, and that they were thereby deprived of the advantage intended to have been secured to them, by the second section of the charter; and upon that ground, principally, prayed for an injunction to prevent the company from proceeding to sell the plaintiffs’ lands for their default in not paying the assessment in money.
The answer stated that the assessment was made on the 8th of April, 1818, of which due notice was given, and that the plaintiffs had full time and opportunity to avail themselves of the benefit of the charter.
This was a direct denial of the equity of the bill, and upon that ground, connected with a construction of the charter differing from the construction contended for in the bill, the injunction was dissolved.
I do not, therefore, consider that case, as in any manner supporting the doctrine, that upon a motion to dissolve an injunction, the answer is to be taken as true in every particular, whether responsive, or not, to the allegations of the bill. And that this was not the opinion of the Chancellor in that case, is evident from what he says in the same book, p. 497, in the case of Minturn v. Seymore, where he lays down the general principle, that£< where -a defendant, in answer to an injunction bill, admits the equity of the bill, but sets up new matter of defence on which he relies, the injunction will be continued to the hearing,” and refers to the case of Allen v. Crobrofl, Barnard. Ch. Rep. 373, for the general rule to that effect.
The result of these authorities cited by Mr. Coxe, is that in two or three cases, where no objection was made to it, the court did, upon motion to dissolve, take into consideration circumstances stated in the answer which do not appear to have been responsive to the bill. But it does not appear to me that the argument to be drawn from those cases, is sufficient to overthrow the general principles upon which I conceive the opposite doctrine to be founded.
But it is said that upon a motion to dissolve an injunction, the cause is always heard on bill and answer. This, certainly, must be a mistake. "When a cause is said to be “ heard on bill and answer,” the expression is always technical, and understood technically to mean the final hearing when the cause has been set for hearing by the plaintiff, or by consent of the parties upon bill and answer alone without replication. But upon a motion to dissolve an injunction, the cause is not heard; the motion only is heard, the cause is not set for hearing, and the doctrine that the answer [608]*608must be considered as true in every particular, applies only to a cause set for hearing on bill and answer.
Upon the whole, I still think that the position, which I took in giving my opinion upon the motion to dissolve the injunction, was correct; namely, that the answer is evidence of such facts only as are responsive to the allegations of the bill. See also Skinner v. White, 17 Johns. Rep. 366, 367.
Having been of that opinion, it was unnecessary to consider what effect the new facts set up in the answer, if true, would have upon the question of dissolution; but as the correctness of that opinion is questioned, it may be well now to go into that consideration.
The answer avers misrepresentations on the part of the plaintiff; namely, 1. That the plaintiff informed the defendant that he believed that his place called “ Howard,” would suit the views of the defendant. 2. That the plaintiff represented that it was well calculated for such an establishment as the defendant had described in his advertisement. 3. That certain land (which the defendant describes) was part of the Howard place. 4. That the Howard place cost him more than $8,000, and that he held it at $10,000.
These representations and statements the defendant avers, “ have proved utterly fallacious and deceptive,” but he does not aver them to be false; nor to have been fraudulently made; nor to have been made with a knowledge that they were not true ; nor do the representations seem to be material; except that, respecting the land supposed to be included in the Howard place ; with regard to which the defendant avers, “ that a considerable part of the land which had been shown and represented to him,” (but does not say by whom) “ as constituting part of the place, and which was inclosed within the same fence, and added essentially to its value and comfort, did not belong to it.” The averment is very loosely made, and as no fraud is alleged I should not think it a sufficient ground to refuse to decree a specific performance of the contract. These are the only misrepresentations, on the part of the plaintiff, averred in the answer.
The answer avers that the place is extremely unhealthy. That the representations as to the value are equally at variance with the truth. That the soil was poor and unproductive, and that the plaintiff had offered it in exchange for property valued at $5,000. But it does not aver that the plaintiff made any representations as to the healthiness, or the value, or the quality of the land. These averments, therefore, are quite immaterial. There are several other immaterial averments, in the answer, which were not insisted upon in the argument, and which I omit to notice ; such [609]*609as, that the plaintiff did not exhibit a plat; that the defendant had to pay money to the tenant in order to obtain possession; that the plaintiff has constantly declared that the property still belonged to him; that the defendant offered to surrender the premises and to pay a rent, &c. &c.
But there is an averment, which, as it was relied upon by the defendant’s counsel, may be properly noticed, if any of the irre-sponsive averments can now be considered.
The defendant, Mr. Cathcart avers that the penalty of $1,000 was inserted, with a full belief on his part, and with a knowledge of that belief on the part of the plaintiff, that he might either take the land, or pay the penalty. It is not, however, averred that he was led into the belief by the plaintiff, nor that he entertained that belief at the time of executing the contract; nor does he aver a tender of the penalty; nor does he, in his answer, offer to pay the penalty. He intimates that the reason why he would not agree to a larger penalty than $1,000, was, that it might be more for his benefit to pay the penalty than to comply with the contract; but he does not aver that he ever gave such a reason to the plaintiff ; nor does he aver any fraud on the part of the plaintiff. If this comes under the head of mistake, it must be a mistake of the law. He did not understand the legal import of the instrument which he signed. But this is not a ground of relief in equity, where no fraud is charged. See Lord Irnham v. Child, 1 Bro. C. C. 91; and Howard v. Hopkyns, 2 Atk. 371, in which case there was a proviso in the agreement “ that if either side should break the agreement, he should pay ¿6100 to the other.” The defendant contended “ that it was the intention of the plaintiff and defendant that upon either paying £100 the agreement should be absolutely void.”
The Lord Chancellor said, “ As to the defence of a stipulated sum, I cannot take this to let off either party when they please, but to be no more than the common case of a penalty; for it might be inserted by the plaintiff in order to be paid for his trouble in viewing and measuring the estate, taking plans, &c., supposing the defendant would be able to make out a title.” “ In all cases where penalties are inserted in ease of a non-performance, this has never been held to release the parties from their agreement, but they must perform it notwithstanding.” See also Hopson v. Trevor, 1 Str. 533; S. C. 2 P. Williams, 191; Parks v. Wilson, 10 Mod. 515; Lennon v. Napper, 2 Sch. & Lef. 684 Margrave v. Archbold, 1 Dow. 107; Telfaire v. Telfaire, 2 Dessaus. Rep. 271; Sugd. Vend. 163; 2 Amer. ed. Phila. 1820.
Ponblanque, vol. 1, p. 108, says, “As to ignorance of law, it may be laid down as a general proposition, that it shall not affect [610]*610agreements, nor excuse from the consequences of particular acts, even in courts of equity.”
Eden on Injunctions,. pp. 9, 10, says, “There are numerous cases in which the court has refused to interfere, where an instrument has been executed, or a sum of money paid, under an erroneous notion of the law.” Mildmay v. Hungerford, 2 Vern. 243; Harman v. Camm, 4 Vin. Ab. 387; Wildey v. Coopers Company, 3 P. Wms. 127, note; Atwood v. Lamprey, Id.; Lord Irnham v. Child, 1 Bro. C. C. 92; Langstaffe v. Fenwick, 10 Ves. 406; Currie v. Goold, 2 Mad. Rep. 163.
We may now, therefore, consider the maxim, “ Ignoraniia juris non excusat,” as fully recognized in equity, as it has been unquestionably established, in civil cases, at law. In a note he cites Dig. 22, tit. 6, & Cod. 1, 18, He juris et facti ignorantiá ; and Code Napoleon, 2052, 2053, 2058.
If, therefore, the allegation in the answer is to be understood as an averment of the defendant that, at the time of executing the contract, he supposed he had a right to dissolve it upon paying the penalty, and if that averment must be taken as true, it is no ground, in equity, for refusing a specific performance of the agreement.
“ An agreement, if impeached, must be so at the time of its commencement; nothing subsequent can impeach it. 1 Atk. 104. A failure in a speculation forms no ground to resist a specific performance. Adams v. Weare, 1 Bro. C. C. 569; ” 1 Maddock, 324, 408.
“ A court of equity will never decree iniquity, and there are instances where they have refused to decree hard bargains, though fair; but these are rare, and are generally cases of glaring hardship. For, in general, the court will never undertake to estimate the speculations of parties in a contract, but will deem them the best judges of their own views, and will compel a performance though they may be eventually disappointed in their expectations.” Ward v. Webber and Wife, 1 Wash. 274.
The assignment of the Spanish fund to Mr. Woodside, for the use of Mrs. Cathcart, being voluntary, is void as to the plaintiff, who is a purchaser for valuable consideration, without notice. 1 Maddoek, 216, 271.
“ It is now fully settled, upon the Stat. of 27 Eliz. c. 4, (a statute passed to prevent frauds on purchasers,) that a voluntary settlement, however free from actual fraud, is, by operation of that statute, deemed fraudulent and void against a subsequent purchaser for valuable consideration, even where the purchase has been made with notice of the prior voluntary settlement. The statute receives the same construction, and produces the [611]*611same effect, both in law and equity; and the purchaser of-an equitable estate, for a valuable consideration, though with notice, is no more affected by a voluntary settlement, than the purchaser of a legal estate.” Buckle v. Mitchell, 18 Ves. 110; Pulverloft v. Pulvertoft, 18 Yes. 90; Metcalf v. Pulvertoft, 1 Ves. & B. 183, 184 ; Otley v. Manning, 9 East, 59; Hill v. Bishop of Exeter, 2 Taunt. 69; Evelyn v. Templar, 2 Bro. C. C. 148; Sewhouse v. Earle, Ambler, 288; 1 Eq. Ab. 334; Doe v. James, 16 East, 212; Townsend v. Windham, 2 Ves. 10.
“ Any conveyance, executed by a husband in favor of wife, or -children, after marriage, which rests wholly on the moral duty of a husband and parent to provide for his wife and issue, is voluntary and void against purchasers, by force of the act.” Sug-den, 434.
“ A purchaser, without notice of a voluntary settlement, may compel a performance, in specie, of the agreement, although the settlement were made bond fide.” Sugden, 439.
“ If a person, having a right to an estate, permit, or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right, although covert, or under age.” Sugden, 480.
“ Service upon the husband alone is good service of the subpoena, where the husband and wife are co-defendants.” Eden, 52.
“ If there are several defendants the court will not, in general, dissolve the injunction till all have answered.” Eden, 89.
Mr. Smith and Mrs. Catheart, who are the principal defendants in regard to the Spanish fund, have not answered. Neither Mr. Catheart, who has assigned all his interest in that fund to Mr. Woodside, nor Mr. Woodside, who has assigned all his and Mrs. Cathcart’s interest in it to Mr. Smith, have any right to ask for a dissolution of the injunction.
But if all the defendants had answered, and all the allegations, in the answers of Mr. Catheart and Mr. Woodside, were to be taken as true, I should not think them sufficient to prevent a decree for a specific execution of the contract.
Upon every ground, therefore, I think the injunction ought to be continued until final hearing.
At a subsequent term the question of dissolution was submitted by the parties to Morsell, J., who, after examining the case, concurred with Ckanch, C. J., and the injunction was continued till final hearing, Thruston, J., dissenting; and by consent of the parlies the money was drawn from the treasury and invested in productive funds.