Eggleston v. Watson

53 Miss. 339 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

The mortgage to foreclose which the bill was exhibited states that the land was described in the instrument as the mortgagor’s undivided third interest in a plantation situate in Holmes County, known as “ Wanalaw,” &c. The bill was demurred to, and one cause assigned is that the mortgage is void for uncertainty as to the thing conveyed. We do not think so. The description refers to extrinsic facts, and it may be shown what plantation in Holmes County is known as “ Wanalaw.” A perusal of the instrument at once points to a certain extrinsic fact as descriptive of the plantation embraced in its terms, and such description is sufficient. Bowers v. Andrews, 52 Miss. 596. That there is no itemized account filed with the bill is not cause of demurrer. The Statute of Limitations was not a defence, because the bill avers that the claim was due 1st January, 1872, and the suit was brought within three years. Upon demurrer the court looks alone to the bill; but, if we could compare the exhibit with the bill, the result could not be different. It is manifest that the debtor contemplated indulgence and forbearance until 1st January, 1872, as to the account due 1st January, 1871. The condition of the deed of mortgage was not to be broken until that time. The mortgage acknowledged the account of 1871; and it was not barred in three years from 1st January, 1871. The demurrer was properly overruled, the decree is affirmed, and cause remanded with leave to answer the bill within forty days after the mandate herein shall be filed in the clerk’s office below.