Bowdre v. Carter

64 Miss. 221 | Miss. | 1886

Cooper, C. J.,

delivered the opinion of the court..

It is not controverted that at the time of the execution of the deed of trust by Carter and Mrs. Turner, to secure the advances of money and goods which Robertson agreed to make, Robertson was engaged in business as a merchant without having paid the privilege tax required by law. The appellant admits that because of this default the security is invalid in so far as it covers the price of goods sold, but he contends that Robertson was at the time of the execution of the deed both a money-lender and a merchant; that the law requires a merchant to pay a privilege tax, but none is required of one who is engaged in lending money, and that therefore the security ought to be held valid as to the money advanced, though invalid as to the goods sold. Whatever might be the law as applied to a case in which such facts existed, it is clear the case before us does not call upon us to determine. It is unmistakably true that the dealings between the parties constituted but one transaction, and that one was between Robertson as a merchant and Carter and Turner as his customers. The money advanced was paid out at the store in the usual course of business and charged on the mercantile books; there is nothing whatever to distinguish it from the very common dealings between a country merchant and his patrons.

But it is further said that the Chancellor erred in not rendering a personal decree against the dé'fendants to the cross-bill for such sums as were due for goods sold after the merchant had paid his tax, and for the goods sold by the administrator after he had taken charge of the estate. The reply to this is that the chancery court, having decreed the invalidity of the security, the enforcement of which was the foundation of its jurisdiction, properly desisted from any further inquiry. If there is anything due on open account from the defendants to the complainant in the cross-bill, his remedy is full at law, and there is no reason why the court of chancery should take cognizance of the demand.

Finally, the appellant contends that since the appellees did not tender the sum which is equitably due, the court should not have afforded affirmative relief by decreeing a perpetual injunction against the enforcement of the deed, and for this the recent case of Deans v. Robertson, ante 195, is cited.

In that case it was held that though the security may be invalid because of the statutory declaration, yet where the grantor comes into a court of equity to be relieved he must himself offer to do equity. But the facts here are entirely different. The complainant exhibited his bill for relief upon other grounds. Nothing is said in the original bill of the invalidity of the deed because of the failure by the merchant to pay his privilege tax, and it was only when the merchant, by his cross-bill, sought affirmative relief that the complainant (defendant to the cross-bill) interposed the objection upon which the decision of the Chancellor finally rested. The infirmity declared by the statute adhered to the contract in whatever court it might arise for examination; it is as valid a defense in equity as at law, and though a court of equity, in conformity to an equitable maxim, would decline to grant relief to one invoking its aid, unless upon terms of his doing equity, this maxim has no application where he who must claim under the condemned contract calls upon the court for its aid. It was upon an issue made on the cross-bill that the investigation followed, and the decree properly declared the invalidity of the security. This having been done,'the claim of the appellant to enforce the deed-was finally determined against him, and he is not injured by the form of the decree, by which he is perpetually enjoined from proceeding under it.

Decree affirmed.