May v. Sullivan, 37 Miss. 541

May v. Sullivan

37 Miss. 541 | Miss. | 1859

Handy, J.,

delivered the opinion of the court.

The bill in this case having been dismissed, as to the complainant Erwin, all the allegations contained in it, setting up any equity, and asking any relief in his behalf, must be disregarded, and the bill be taken as asserting ■ the rights of Sullivan alone; and the demurrer must be considered as applicable to it in that aspect alone. So regarded, it is clear that the demurrer to it should have been sustained.

1. Sullivan had not been sued on the notes of Erwin, which he had transferred and indorsed, and may never be sued upon them. And it does not appear that Erwin is contesting his liability to pay them, or insisting upon his not being bound -to pay them without a conveyance of the land to him. As to the note held by Sullivan, it was not due at the time the bill was ■ filed, and will not be due until March, 1860. It is not alleged that he will refuse to pay it when it falls due, on the ground that he cannot receive a title to the land; and it cannot be assumed that he will do so. If he should refuse after the maturity of the note, it will then be time enough for Sullivan to complain, and take steps to compel a conveyance of the land by May, according to the contract alleged in the bill. According to the contract, as alleged, May is not bound to make the conveyance until the purchase-money shall be paid by Erwin; and for aught that is alleged in the bill, Sullivan cannot be injured until the last note shall become due, and Erwin shall refuse to pay it, because he cannot receive a conveyance of the land. At the time the bill was filed, and at this time, Sullivan is not injured; for he is not sued on the notes indorsed by him, and the note held by him is not yet due. He may never be sued, and the note held by him may be paid at maturity, or at the proper time, May and wife may convey the land, according to the alleged contract, to Erwin. A court of chancery cannot proceed upon the anticipation that these things will take place. Upon this view, the bill vras prematurely filed.

2. If it was properly filed as to time, the equity set up by it would require Erwin to he made a party to it, either complainant *546or defendant, in order that he might be required to pay the purchase-money, and that the deed should be made to him. But the holders of the transferred notes, if they remain unpaid, should also have been made parties, in order to receive payment. For as the rights of the parties are attempted to be adjusted in equity, all the parties interested should be brought in, in order to a complete settlement of all the rights involved in the matter. And, indeed, this is the equity upon which the hill mainly depends. But here again, it is plain that this end could not have been accomplished when this bill was filed; because the last note for the purchase-money was not then due, and a bill for the purpose of effecting the payment of the purchase-money, and to that end of compelling May and wife to convey the land according to the alleged contract, could not be entertained before the purchase-money becomes duo, and before the obligation to convey is established.

Hence, upon the equitable ground upon which the bill mainly rests, Erwin, and the holders of the other notes, should have been made defendants.

For these reasons, the decree must be reversed, the ^demurrer sustained, and the bill dismissed.