| Miss. | Oct 15, 1910
The appellant, S. L. Allen, brought suit against It. N. Miller in the circuit court of Copiah county for a breach of warranty of title to land. Miller filed a bill in the chancery court of Copiah county, enjoining the suit at law, to which bill Allen demurred, and which demurrer was overruled by the chancellor, and from that decision, overruling the demurrer, Allen appeals to this court.
To have a clear conception of the legal points involved, it is necessary to give some of the leading facts. In 1802 W. A. Tillman negotiated a loan of money from the British & American Mortgage Company, executing a
On the. 12th day of March, 1906-, W. A. Tillman, the original owner, filed a bill in the chancery court of Copiah county, attacking the validity of the deed from the substituted trustee and all subsequent conveyances, chiefly upon the ground that, at the time the land was sold to the mortgage company, the appointment of the substituted trustee was not filed for record. Lyell, Miller, and the British & American Mortgage Company were made defendants. Allen filed an answer, and the mortgage company'also filed one, making its answer a cross-bill,- and asking that, in the event the conveyances' were canceled, Tillman'be made to do equity by paying the debt. The
The British & American Mortgage Company made an assignment of its claim to R. N. Miller, and thereupon Miller filed this suit, and enjoined the suit of S. L. Allen in the circuit court as heretofore stated. He asks that the debt fixed by the decree be taken as an offset against Allen’s demand against him. It is alleged that this decree and the debt thereby fixed upon the land due by Tillman, is equal to or larger than Allen claims to have expended in purchasing the quitclaim from Tillman. The foregoing are some of the leading facts in the case.
It is contended by appellant in his brief that all the rights, both legal and equitable, to the land, passed from Miller under his deed to Allen, and that Miller cannot assert this claim of the British & American Mortgage Company against Allen as a set-off to damages by Allen, by reason of the failure of the warranty in Miller’s deed. In other words, the appellant seems to contend that Allen, being the last vendee in the chain, was subrogated to the mortgagé company’s right to the debt, and that, therefore, Miller cannot set it up by way of offset. Under the facts of this case, we do not concur in that view. The main question presented in this case is whether or not Miller can tender 'Allen this outstanding incumbrance, which is equal to or larger in amount than Allen’s demand against Miller, in discharge of his liabil
The chancery court, in canceling the deeds heretofore described, in that very decree directed that Tillman pay the debt, with interest, then due the mortgage company, and further ordered that, in default of this payment by Tillmmi, the land be sold to satisfy the debt; and this debt, thereby fixed upon the land by the court, is alleged to be more than Allen claims to have expended in purchasing the quitclaim deed from Tillman. Miller admits his liability upon breach of warranty of his deed to Allen. The measure of his liability to Allen on this breach of warranty is the amount of purchase price paid by Allen to Miller, with interest. In no case would Miller be liable to refund more than was actually paid out by Allen to protect his title, and in no event in excess of his liability on his covenant of warranty. Miller is not attempting to set up this decree against Allen’s title, but insists that it inures to his own benefit in discharge of Jais warranty, and is asking that it be taken as an offset against Allen’s demand for breach of warranty.
It is alleged that Allen acted in bad faith with Miller. That is a matter the chancery court can consider, if it becomes necessary or proper to do so, after hearing all facts in reference thereto. It is the province of that' conrt to render redress according to the principles of equity and good conscience. In cases of this character, the doctrine of that court is “that he must deal fairly and in fidelity to his warrantor; that while he will not be permitted to break an allegiance to the title under which he entered and holds possession, yet he shall not be put to the useless expense of a fruitless litigation against an incumbrance or paramount title, which must ultimately prevail, but may, if necessary to preserve the estate and
It manifestly appears from this record that Miller is liable to Allen upon his covenant of warranty in the sum of nine hundred dollars, with interest, and this is the limit of his liability. It is equally manifest that Miller has a decree of the chancery court, fixing a charge upon this land for an amount as large or larger than Miller’s liability. We think Miller has the right-to offer this decree as an offset to Allen’s claim, and that the bill is properly before the chancery court, and that it is the correct forum in which to settle the questions here involved, which are somewhat complicated, and, at first impression, somewhat elusive, if not firmly grasped by the mind of the reader. If Miller’s tender of the mortgage debt is not an offset of his liability, then it must follow that Miller must pay Allen the money he paid for the land, with interest, and Allen in turn must pay Miller the amount of the debt (decree) fixed upon the land by the decree, or suffer the land sold under the decree. This kind of procedure would be swapping dollars, and such circuitous actions should not be encouraged when it can be avoided.
If this decree owned by Miller is equal to or in excess of his liability to Allen upon breach of warranty of his
The above opinion is adopted as the opinion of the court, and, for'the reasons therein indicated by the commissioner, the ease is affirmed and remanded.