41 Miss. 717 | Miss. | 1868
delivered the opinion of the court.
The complainant, O. E. Hooker, filed his bill of complaint in the Ohanceiy Court of Hinds county for the First District, against Nancy Austin, executrix of the last will and testament of William J. Austin, deceased, and J. II. Ledbetter, trustee, to enjoin the sale of a tract of land under a deed of trust.
The complainant states in his bill that on the 1st day of May, 1856, he executed his certain writing obligatory in favor of the said William J. Austin, for the sum of $4,600, and that the same was given partly for loaned money, and partly to close certain accounts and notes due the said Austin. That he does not remember the precise amount of money loaned, but thinks it was about $2,700, and that the remainder of the sum for which said writing obligatory was executed was for notes and accounts held by said Austin against him. That at the time of executing said writing obligatory he executed a deed of trust on certain land in the vicinity of Jackson, Mississippi, to secure
Complainant further alleges payments on said debt had been made at different times, to the amount of $3,000, to said Austin, which are endorsed on said written agreement, and that the interest charged by said Austin is illegal and usurious. That since the execution of the said writing obligatory and deed of trust, the said Austin had departed this life, leaving Nancy Austin executrix of his last will and testament, and that she has requested J. TI. Ledbetter, the trustee, to proceed to advertise and sell the property named in said deed of trust; and that said trustee had accordingly advertised the property for sale, to satisfy the whole of the said claim of $4,600, and would proceed to sell the same to pay said debt and the interest thereon, at the rate of fifteen per cent, per annum, from the 1st day of May, IRS'?-, until paid. The complainant prays for an injunction to restrain the sale of said property, and that an account be taken of what may be legally due on said debt.
Mrs. Nancy Austin, in her answer, admits that she has no personal knowledge of the pecuniary transactions between complainant and her late husband ; admits the payment of $3,000 as charged in the bill, and denies any intention of collecting the whole amount of the writing obligatory of $4,600. And as to the consideration of the said writing obligatory, she knows nothing, not having been advised by her late husband, in his lifetime, as to the nature of the business between him and complainant; but insists that complainant is estopped by his own deed from alleging that said writing obligatory was not given wholly for loaned money.
As to the alleged usurious interest agi*eed to be paid by complainant on said debt, she admits that she knew, from legal advice, that if the complainant declined to pay it, she could
J. H. Ledbetter, in his answer, admits that he was acting as trustee, as stated in the bill, and that he knows nothing of the transactions between complainant and the late William J. Austin. That at the request of said Austin, in his lifetime, he became trustee' in said deed, and admits that by instructions from the attorney-at-law of Nancy Austin, executrix of the will of the said William J. Austin, deceased, he did publish the advertisement of sale as charged in the bill, and did intend to make a sale, as trastee, for the satisfaction of the debt secured by said deed of trust, and would certainly have made the sale, had he not, at the moment of sale, been enjoined from proceeding.
A motion was made by defendant, Nancy Austin, to dissolve the injunction on bill and answers, which was sustained by the chancellor, and the injunction dissolved.
From that order and decree dissolving the injunction, this appeal was taken.
There can be no doubt that the reservation in the written agreement, of fifteen per cent interest, renders the transaction usurious, and that a court of chancery will grant relief.
Where the defendant answers that he has no personal knowledge of the complainant’s equity, and denies the facts relied on in the bill, upon information which he had obtained, it was held that such answer was not sufficient to dissolve an injunction. Doub. v. Barnes, 4 Gill, 1; Peerson v. Ryerson, 1 Halst. Ch. Rep. 196.
A mere denial in an answer by an administrator, of his personal knowledge of a transaction between his intestate and complainant, is not sufficient to dissolve an injunction. Williams v. Stevens, 1 Halst. Ch. Rep. 119.
On a motion to dissolve an injunction on bill and answer, the statements of the bill are to be received as true, so far as they are not denied by the answer. Alexander v. Ghiselin, 5 Gill, 138. And the answer can be regarded only so far as it is responsive to the bill. Rembert v. Brown, 17 Ala. 667.
If the defendant, in his answer, is unable, from his own knowledge, to deny the allegations of the bill which are material to its equity, the injunction will be retained. It stands on the case made by the bill, and will be held until that casé be overcome. Lines v. Spear, 4 Halst. Ch. Rep. 154.
It is well settled that an injunction will not be dissolved on bill and answer, unless the equity of the bill be denied by a positive answer. In this case the equity of the bill is not denied by either of the answers. The equity of the bill is the usurious interest stipulated for in the agreement of the 9th of May, 1857. This equity is admitted in the answer of Nancy Austin, and is not denied in .the answer of Ledbetter, and there was, therefore, no ground on which the injunction could properly have been dissolved.
The answer of Nancy Austin admits the usurious interest reserved.in the agreement as charged in the bill, and seeks to avoid the effect of it- by declining to exact it; where the equity is admitted in the answer, matter in avoidance cannot be allowed to have any effect upon an application to dissolve an injunction upon bill and answer. Drury v. Roberts, 2 Maryland Ch. Decis. 157.
The complainant had an undoubted right to have an account taken of what remained due of principal and legal interest on his debt to Austin, and this is assented to by Nancy Austin in her answer, and the account ean only be taken upon a final hearing upon the merits.
The decree is erroneous upon another .ground. The chan
The decree will be reversed and cause remanded.
