33 Miss. 672 | Miss. | 1857
delivered the opinion of the court.
This is an appeal from a decree of the Yice-Chancery Court at Monticello, sustaining a demurrer to the complainants’ bill.
The bill alleges that the complainant, Daniel Magee, was, in May, 1840, indebted to the Grand Gulf Bank in about the sum of $6360 ; that to secure the payment of the said debt, he had prior to that time, executed a deed of trust on the slaves now in controversy, to one T. S. Cooper. Being unable to pay the debt, and the trustee being about to sell the property, the complainant made an arrangement with Catching, the principal defendant, to attend the trustee’s sale, and purchase the slaves; that it was part of this arrangement that Catching, after the purchase by him, should assume the debt to the bank (the bank having already agreed to this arrangement), and that the complainant should continue in
The bill further alleges, that in September, 1840, the complainant, having determined to remove to Texas, the slaves were surrendered to the defendant, Catching, who executed a writing, reciting the purchase of the slaves at the trustee’s sale; that he had given his note for the same to the Grand Gulf Bank for the above amount, due in May, 1841, and agreeing that when the complainant, Daniel Magee, D. C. Dickson, or F. W. Magee, who had become in some way connected with the transaction, should have paid said sum to him, his administrators, executors, or heirs, “ then it was his wish and intention to transfer the slaves, with all the right and title thereto, to the said F. W. Magee, or the said Dickson, or any one whom they might designate;” and in case of his (Catching’s) death, it was stipulated that his legal representatives should perform the same act of justice to said Magee, or his heirs, after the payment of the above sum.
It appears that Daniel Magee, F. W. Magee, and Dickson, removed to Texas, as contemplated, about this time; that the defendant had continued in the possession of the slaves, except such as he had sold, until the filing of the bill.
It is further alleged, that the defendant, by a compromise with the bank, paid ,off the note above stated, at a considerable discount; but the terms of this arrangement are not definitely stated for want of information by the complainant; that the defendant has sold one of the slaves, and from the proceeds of this sale, and the hires of the slaves, for which it is alleged the defendant is liable, he has been fully reimbursed the sum paid to the bank. The object of the bill is to have an account taken of the hires of the slaves, and of the sale of the slave John; and if it shall then appear, that the complainant has not been fully reimbursed, the money by him paid to the Grand Gulf Bank, the complainant will pay such balance, which being done, he prays for a transfer of the slaves to him. To this bill the defendants below demurred, and the court, sustaining the demurra’, the complainant has prosecuted this appeal.
This rule, resting as it does upon sound policy, should never be departed from, merely to relieve against the hardship of a particular case. The law exacts a certain degree of diligence in the assertion of rights; and it has now almost ripened into a maxim, that rights-not asserted within a reasonable time, are treated as abandoned, or as surrendered to the opposing party.
We may in conclusion remark, in regard to this case, that there is nothing in it recommending it to the special favor of a court of equity. The defendant was no doubt moved solely by considerations of friendship towards the complainant, in entering into this agreement, and while it is one binding upon the parties, yet it having originated in the friendship of one of the parties, assuming a pecuniary responsibility, as well as risk and trouble, the other party ought to show that he had respected the laws of reciprocity in this respect, to entitle him to the favorable consideration of the court. As argued by counsel, it certainly never entered the minds of the parties, that the defendant was to become the mere bailiff of the complainant, to manage the property, to be responsible for it, as well as for the debt to the bank; and to account at any length of time when it might suit the complainant’s convenience.’ If what is now contended for in behalf of the complainant, had been proposed in the first instance, as the contract of the parties, it is manifest that it would have been rejected. No prudent man would, upon the score of friendship alone, for another, enter into a contract so indefinite as to time, as to give that other his lifetime, to call for an account in regard to property, which may have been an incumbrance instead of a benefit.
We therefore think, that whatever may have been the complainant’s equity, if he had been more • diligent in performing his contract, that he is now barred by lapse of time, and that the demurrer was therefore properly sustained.
Decree affirmed.
See Soggins v. Heard, 31 Miss. R. 426.