after stating the case: The first exception cannot be sustained. The ninth issue submitted to the jury served substantially the same purpose as that proposed by the plaintiff in lieu of it would have done if it had been submitted. “Consent” and “assent” are not synonymous terms, but the result would be the same in this case, whether the plaintiff consented or assented to the sale of the vessel to the Coasting Company named. Besides, taking the first issue submitted in connection with the pleadings, the jury found, in substance, that the plaintiff consented to such sale. He was a member of the firm of W. F. Kornegay & Co., and is their assignee of the cause of action alleged in the complaint.
*19If it be granted, as the plaintiff contends, that he perfected a lien in favor of his debt, as allowed by the statute {The Code, §§ 1781-1784), upon the vessel which he seeks to subject to its payment, we think he waived and abandoned such lien in favor of the Coasting Company mentioned, and all persons claiming under and through it, and he cannot how have benefit of it.
The defendants allege expressly in their answers that the plaintiff not only consented to a sale of the vessel to that company, but agreed at the time of the sale to accept its notes, secured by a second mortgage of the property, for the amount due him from the defendants Styron and Duncan; and the jury find, by their verdict, that he did so agree, and further, that he assented to the sale when made. It was clearly competent for the plaintiff thus to abandon his lien; and, having done so, he cannot, in good conscience, insist upon enforcing it — he is estopped in equity from doing so.
It is no sufficient answer to say that the notes and second mortgage of the Coasting Company were not executed. It agreed, upon a sufficient consideration, with the plaintiff to execute them, and as it failed to do so — for what reason does not appear — he might have had his remedy against it. It does not appear that the execution of them was made a consideration precedent to the waiver, and it is found, as a fact, that the plaintiff assented to the sale Itmaybethat he unwisely agreed to abandon his lien — that he made a bad bargain in doing so — but if so, this was his misfortune or his folly; it is no reason why he should be allowed to re-assert his lien to the prejudice of innocent purchasers, nor will a court of equity help or allow him to do so.
Affirmed.