74 Miss. 893 | Miss. | 1897
delivered the opinion of the court.
The original bill, and the first and second supplemental bills, should have been regarded and treated together as one pleading in the court below. Both supplemental bills set up matters transpiring subsequently to the filing of the original bill, and matters, too, arising because of the wrongdoing of the respondents in their disregard for and contempt of the authority of the chancery court. Considered, then, as one complaint, and not as three, as was done below, we find a bill exhibited in a threefold aspect, viz.: a bill for a discovery and an accounting, for relief from usurious interest and for a redemption. The bill, moreover, charged frauds by specific averments, in plain terms, and required an answer, though none was filed with the demurrer to the original and first supplemental bills, nor, in fact, ever filed. Besides the many other charges of the bill, it avers that C. and H. Rosenbaum entered into a combination or scheme whereby they were to secure the mastery over the complainants and their home and plantation, and by a long-continued series of illegal and fraudulent acts be, at length, enabled to overpower complainants and wrest their property from them and convert it to their (respondent’s) own use and profit. The bill alleges that, as part of this scheme, H. Rosenbaum was to be made the supply merchant of the complainants, sell them goods at unusual and extortionate prices, charge usurious interest on balances, keep complainants in ignorance of the state of the accounts with him by withholding and refusing to make up and furnish complainants with statements and itemized accounts of their dealings, and, at the end, falsely pretend that C. Rosenbaum had become the owner of the accounts thus
The bill avers that, taking advantage of J. H. Aust’s ignorance of business affairs, and of his sickness, and of his reliance upon the good faith of respondents, and of his reliance upon their agreement and promise to correct any errors which might thereafter appear in the store accounts, the store accounts, to the sum of several hundred dollars, were incorporated in the renewal note for the loaned money, and their payment secured by the trust deed which secured payment of that loan. The bill then avers that, despite repeated requests for itemized accounts of their accounts with the store of H. Rosenbaum, they have persistently been refused and denied, and that complainants, by reason of such misconduct on the part of EL Rosenbaum, in refusing to make up and furnish complainants with copies of their accounts, itemized; are unable to say what they really and truly owe upon such accounts, but they aver that, independently of usurious interest, they owe a greatly smaller sum than that whose payment respondents are demanding, and that the difference between the sum really and honestly due and that which respondents claim to be dne, grows out of extortionate charges for goods, false charges for goods never purchased by complainants, and failure to give complainants proper credits for payments made; and so they pray a discovery and an accounting first, and then for redemption when they have been enabled to see what their indebtedness really is, after purging the whole debt of its glaring usury.
The bill admits the indebtedness, after being purged of usury, and after false charges for goods never bought have been elim
There was a general demurrer filed to the original and first supplemental bills, because of the failure of complainants to do equity, in that they did not tender with their bill the amount due from them to respondents. This demurrer was sustained, and the original and the first supplemental bills were dismissed.
The question presented by the appeal from this decree of the court below is, was an actual tender of the amount due, with lawful interest, essential to the maintenance of this bill, on the very peculiar facts disclosed in and by all the bills — the original, and the first and second supplemental — it having already been said that they should have been regarded and treated as one pleading %
It .is to be observed that this is not an equitable proceeding for the cancellation of a mortgage, nor for relief against one cent that may be found to be legally due. The case of Mortgage Company v. Jefferson, 69 Miss., 770, upon which the court below rested its rulings, as we have reason to believe, does not answer our question, is distinguishable from this case at a glance, and is not authority for the decree below. In Jefferson’s case, cancellation of a contract claimed to be usurious and void, was sought in our courts by Jefferson, but as he confessedly had the money of the mortgage company in his pocket, our holding was that he must do equity before we would cancel the deed — ■ that is, that he must tender the money which he admitted he had from his adversary, with lawful interest, and then we would decree cancellation of the usurious and void contract. But that is not the present case. The complainants do not ask cancella
We recur, then, to the consideration of the correctness of the action of the court below, in holdipg a tender essential with a bill to redeem.
It has been held by high authority that no tender is necessary in a case for redemption. Quin v. Brittain & Jones, Hoff. Ch. Rep., 353; Beach v. Cooke, 14 N. Y., 508. In the recent case of Cassely v. Witherbee et al., 119 N. Y., 522, this view is broadly sustained. Said the court: “As a condition to his right to maintain this action, it was not necessary for the plaintiff, before commencement thereof, to tender or offer to pay the balance due upon the mortgages. Nor was it necessary for him in his complaint to offer to pay the amount which should be found due. There are,
Reversed and remanded on direct appeal, with leave to respondents to answer within thirty days after mandate filed, and with leave to both parties to take further evidence, if desired. The decree on cross appeal is affirmed.