Terry v. Jones

| Miss. | Oct 15, 1870

Peyton, C. J.:

The record of this case presents substantially the following facts: that Robert B. Cunningham and wife,on the 17th day of February, 1880, sold and conveyed certain lands in Hinds county to William I). Terry, for the sum of $12,675, of which $3,900 were paid in caslj at the time of the sale to the said Cunningham, by the said Terry, who executed to said Cunningham his promissory notes for the balance of the consideration money ; the last of which, for $4,680, was payable on the 1st day of January, 1862. This note was indorsed and delivered by said Cunningham, for valuable consideration, to Allen Jones, who filed his bill in equity to enforce an alleged lien on said lands for the payment of said note.

The bill alleges that said note was described in the deed of conveyance, by which a lien was reserved on the lands conveyed for the payment of the note, and that the complainant, as the owner and Iona fide holder of said note, became entitled to enforce the lien upon said lands created by said deed of conveyance to secure the payment of the same. A copy of said deed is filed with the bill, and is prayed to be taken as a part thereof. By reference to the copy of the deed, it appears that no lien on the lands conveyed was reserved therein for the payment of the said note.

To this bill of complaint the defendants demurred, and the demurrer was overruled by the court. And hence, the cause comes here by appeal on the part of the defendants, who assign for error the action of the court below in overruling the demurrer.

The only question in this case is, does an exhibit merely referred to in the bill of complaint, and asked to be taken as a part thereof, constitute a part of the pleading in the cause, so as to aid a demurrer to a bill which shows upon its face a jprima facie case for equitable interposition ?

It is contended by counsel for the appellants, that a reference to, and prayer that an exhibit filed with the bill be taken as part thereof, make it as effectually a part of the bill as if it had been set out in hie verha therein. We do not think so. Pleading is one thing and evidence is another. A bill in equity is pleading, and exhibits are evidence. It is indeed admissible to a certain extent, in pleading in chancery, to file written evidence as exhibits, and to refer to them as part of the bill or answer, but good pleading requires that everything that is material to the case should be set forth in the pleading itself by proper averments. This may be done in general terms, and the exhibit may be referred to for greater certainty as- to particular details, but pleading ought to contain the substance of the case. Harvey v. Kelly, 41 Miss., 493. It is the pleading that makes the case for adjudication, and it is the evidence that sustains or defeats it upon the final hearing. The demurrer in this case is to the pleading as presented by the- bill, and not to the evidence filed for its support; and as the bill upon, its face presents a frima facie case for equitable relief, a demurrer could not properly be sustained to it, although there may be evidence that would defeat the equity of the bill upon a hearing on the merits. No facts are properly in issue, unless charged in the bill; and, of course, as a general rule, no evidence can be offered of facts not stated in the bill; nor can relief be granted for matters not charged, although they maybe apparent from other parts of the pleadings and evidence; for the court pronounces its decision secundum allegata et prolata. Story’s Eq. Pl., § 257; 1 Daniels Ch. Practice, 335, in note 4.

Where a bill in equity is substantially defective for want of material averments, it cannot, upon demurrer, be eked out by references to exhibits. It must' stand or fall upon its own allegations.

In this case, the bill states that a lien was reserved in the deed of conveyance by the the stipulations between the parties; and, if this be true, the complainant is entitled to the relief sought, and for the purposes of the demurrer, it is admitted to be true; and, therefore, there is no error in the action of the court below in ovemiling the demurrer.

The decree will be affirmed, and the cause remanded for further proceedings, with leave to the appellants to answer the appellee’s bill within sixty days from this date.