43 Miss. 570 | Miss. | 1871
Samuel 0. Dodge exhibited his bill in chancery against Evans and Adams, asserting a lien on land, against Adams, as the sub-vendee of Evans. The defendants demurred, which was sustained, and the bill was dismissed; and this is assigned for error. The important question raised in the record is, whether under the allegations of the bill the complainant is entitled to any relief.
In framing the bill, the pleader most probably supposed that because the promissory notes for the several installments of the purchase money, referred to the land and. the deed, that thereby was raised or created an equitable mortgage or
In Grimes v. French, 2 Atk., 141, though a general relief be prayed in the bill, “ at the bar you may pray a particular relief that is agreeable to the case made by the bill. ” As where the bill is brought for an annuity charged on land, it is not permissible to drop the demand for the annuity and insist on the land out of which the annuity issues, for that is another and different case.
In Wilkin v. Wilkin, 1 Johns. Ch. Rep., 116, the bill was brought not for partition strictly, but to carry into effect a partition formerly made between the parties. There was a failure of proof on the point of partition with partie ■. It was then claimed for the complainant that the court should go on and make partition. The general rule was stated by the chancellor to be, “ that other specific relief may be afforded, provided it be consistent with the case made by the bill.” In this instance there is no objection to the application of the rule on the ground of surprise or prejudice. Although relief was refused on other grounds (the denial of complainant’s title to the land), it was conceded that it was in the scope of the bill to decree a partition by the court.
Justice Story, in Eq. Plea., § 40, says: “If the plaintiff should mistake the relief to which he is entitled in his special prayer, the court may yet afford him the relief to which he has a right under the general prayer for relief, provided it is such relief as is agreeable to the case made by the bill.” It is said also, that the general prayer will be sufficient, without indicating special relief, and that on the hearing at the bar, the relief warranted by the case stated will be awarded. Story Eq. Plea., § 41. To this, however, there are many exceptions, such as for “ injunction, ne exeat,” etc.
The demurrer to the bill, it is urged, ought to have been
The statement of the bill is that Samuel C. Dodge sold and conveyed to Wesley G. Evans the land in dispute, and that Evans executed and delivered his three several promissory notes, payable respectively at one, two and three years to Dodge — that two of the notes are unpaid. The deed and notes are exhibited with the bill. From this transaction, the lien was implied, and Evans held as trustee for the benefit of Dodge’s equity. There is also the allegation of
We do not agree with the counsel for the demurrant that it was necessary to have stated in the bill that the vendor, Do lge, did not take security for his debt. It is always good pleading to make a prima, facie case. Matters of avoidance, or satisfaction of the plaintiffs right, come more properly from the other side. Judge Story says the burden of proof is on the vendee to show that the lien has been displaced or waived by consent of parties. 2 Story Eq. Juris., § 1224. In Garson v. Green, 1 Johns. Ch. Rep., 309, Chancellor Kent held, “ that prima facie the lien exists on the land, and it lies on the purchaser to show that the vendor agreed to rest on other security.” If this be so, surely the complainant cannot be put to aver in his bill, a fact, the onus probandi of which is on the defendant.
In Stewart v. Ives, 1 S. & M., 197, it is said the lien continues so long as the land remains in the hands of the original purchaser, unless waived by some act of the party.
The rule is very axxcient, that if a party has earned out his own security, the law will not create axxother in aid. Bond v. Kent, 2 Verm. Rep., 281. Hence, has come the doctrine, that if the vendor takes collateral personal security, as a bond or note with a security or indorser, or a mortgage or pledge, etc., he has elected his security, and will be taken to waive that which the law would imply. Gilman v. Brown, 1 Mason Rep., 212; Clower v. Rawlings, 9 S. & M., 128.
There must be some affirmative act done by the vendor,, to
The case stated in the bill is, that the land was sold and conveyed on a credit, and the notes of the vendee taken. The transaction is set out by averment, and the papers exhibited ; the whole of it purports to be disclosed, and on its face negatives the idea that any part of it is omitted. Adams purchased the land from Evans, and took a deed; the allegation is, that he had special notice of the existence of said “mortgage lien.” It is an erroneous deduction of law, in the pleader to denominate the “ equity ” of complainant “ a mortgage lien.” We take the statement to mean that Adams had notice that two instalments of the purchase money from Evans were unpaid. The deed to his vendor recited, that the sale was on credit, and that Evans had made promissory notes therefor. If he had “ special ” notice of the “ lien ” in favor of Dodge, he necessarily must have had knowledge that all of the purchase money had not been paid.
The primary object of the bill in the case cited from 1 Johns. Oh. Rep., was to procure the specific execution of a partition of land made in pais, if, under such a bill, failing to establish the conventional partition, the court could go on, and divide the land. In this case where the object of the bill is to enforce a lien on the land for the purchase, money, it is indulging in no larger latitude to hold, that where it appears from all the statements of the bill, that the equity is the vendor’s lien, and not an express or mortgage lien, under the prayer for general relief the court should extend to the complainant such redress as is agreeable to the case made by