46 Miss. 374 | Miss. | 1872
This is an appeal from the chancery court of Lincoln county. Stripped of extraneous matters, the proceeding is for the foreclosure of a mortgage upon real estate, and for a sale of the mortgaged premises. Counsel for complainant, in the preparation of his bill, introduced a narration of the facts leading to the execution of the mortgage, partly, as we infer, by way of showing the consideration of the mortgage, but mainly, as we judge, from the content's of the complaint, to explain, by facts and averments, certain discrepancies in dates, amounts and parties appearing upon the face of the papers. To the complaint the respondent interposed a demurrer, specifying the following causes: “1st. There is no such contract of sale shown by the bill as the law will enforce; 2d. There is no consideration shown for either of the notes or mortgage; 3d. It is not shown that any written memorandum of the sale was signed and delivered by the party , to be charged thereby to the defendant; 4th. There is no equity on the face of the bill.”
The demurrer was overruled, with leave to defendant to answer within thirty days. From this decree the respondent appealed, and assigns for error the decree overruling the demurrer. The propriety of the demurrer is tested by an analysis of the bill, the statements and averments of which, admitted by the demurrer, are substantially these:
That on the 17th day of July, 1869, complainant, by L. Alcus & Co., his agents, entered into an agreement with Leon Haas, defendant, for a sale to him of a certain lot of
Counsel for appellant assumes this to be a proceeding to enforce specific performance of the contract referred to in the bill; and has submitted an elaborate and labored argument, devoted to a discussion of the validity of the contract of sale of the real estate set out in the bill of complaint and filed therewith as an exhibit, as effected by the statute of frauds. Such is not the purport, scope or prayer of the bill. Characterizing this action as one for specific performance, counsel assails the contract on various grounds, which we do not think available upon the case made by the bill. The facts set out seem to be such as, in the judgment of the counsel for the complainant, were necessary to show the origin, consideration and execution of the mortgage deed, the foreclosure of which is the object of the complaint.
Of the opinion that the points made by the demurrer are not well taken, we affirm the decree overruling the demurrer, with leave to defendant to answer within thirty days from this date.
Ordered accordingly.