Magee v. Catching, 33 Miss. 672

Magee v. Catching

33 Miss. 672 | Miss. | 1857

Fisher, J.,

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 *692possession of the property, and from the labor of the slaves, and such other means as he might have, pay off said debt; that the sale was accordingly made; that Catching, according to the understanding of the parties, became the purchaser of the slaves, and assumed the debt of the bank for $6360; that the complainant’s debt was accordingly discharged in this way.

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.

*693It is said that this agreement, not resting, as is contended, upon any sufficient legal consideration, was not binding upon the defendant, and that he could therefore disregard it. It is now firmly settled, that a party, whose property is about to be sold, either under judicial process, deed of trust, or mortgage, may contract with another to become the purchaser of such property, at the sale to be made for the benefit of the debtor. The law never looks to the amount of the consideration to uphold a contract, so- that there is a consideration, though trivial, moving the parties. Loss or injury to one of the parties, or benefit to the other, maybe a sufficient consideration. The debtor, in such case, by trusting to the agreement of the party to purchase, may be prevented from raising the money to pay the debt, or from making a more advantageous sale of it to another, with the consent of the creditor. But the rule is now settled, and it is therefore not necessary to enter upon a defence of it. The subject being one about which the parties might contract, the question is, did they contract, and how have they contracted ? The first part of this inquiry may be answered in the affirmative, and our examination will therefore be confined to the construction of the contract as set forth in the bill, and the rights of the parties under such contract. The object of the bill is for a specific performance of the contract; that is to say, a recovery of the slaves. The writing of the 30th of September, 1840, must be treated as the contract between the parties, and what is alleged in the bill, as referring to the consideration to support the contract, thus reduced to writing. What then, is the contract ? Is it a mortgage ? Clearly not; for the obvious reason that the complainant owed the defendant nothing; that is to say, nothing which the complainant could compel the defendant to pay. If the property should prove insufficient to reimburse the defendant Catching, or should be wholly lost, he could assert no demand against the complainant. It was then simply a contract, that the complainant, upon paying to Catching a certain sum, might repurchase the property, or what is the same thing, divest the title of the latter. This being clearly the contract of the parties, the next inquiry is, in what time was it to be performed ? The answer must be, within a reasonable time, which means such time as would bar the plaintiff’s remedy, if the defendant’s possession, had been from the beginning, *694adverse to the title asserted by the complainant. Contracts of this nature, stipulating no time for performance, must be performed within a reasonable time.

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.