Waters v. Bossel

2 Miss. Dec. 414 | Miss. | 1883

Opinion.

Chalmers, J.:

It was erroneous to suppress or ignore the testimony with reference to the note filed as exhibit 3 to 'defendant’s answer. True, the answer was not made a cross-bill, and no relief was prayed as to the note, but it was set up by the answer as evidencing a settlement and payment between the parties. In this aspect, it was purely defensive and should have been considered and passed upon by the court. Looking at it in this light, it suggests by its own recitals, and the suggestion is made conclusive by the testimony of the witness, Garrett, that it was intended as a payment pro tanto of the annuity or rent charge due from defendant to complainant. The transaction was this: Mrs. Waters owed Mrs. Bossel a monthly stipend or rent charge of $25 per month. She had expended for and advanced to her, at the time of the execution of this note, the sum of $1,200, or thereabouts, in excess of the rent charges; Mrs. Bossel executed this note as evidencing this indebtedness, but it was never intended that the note should be paid in money, but, on the contrary, the intention was that the annuity or rent charge should be regularly paid until one year after the emancipation of the grandson, Frederick, and at that date the payment of the annuity should cease until the note should become extinguished by the accrual of a sufficient sum at $25 per month, to accomplish that result; in other words, that the sum due each month on the note should be set off against the same sum due on the annuity until the note itself should be extinguished by lapse of time and the consequent accrual of an amount sufficient to pay it off. This would be accomplished in about four years, so that the practical effect of the scheme was to stop the annuity for that time. Calculation should have been made of the annuity up to the date of maturity of the note, giving credit, of course, for all payments shown to have been made on the annuity. Then for four years, or such period as it would take to consume the note at $25 per month, the annuity would cease, and, after such last-mentioned period, the annuity would revive and run as before. If an account stated on this basis shall show that there was nothing due Mrs. Bossel when the bill was filed, it must be dismissed without prejudice to her right to file another one for whatever may have since become due. If anything was due when the bill was filed, the account should be taken down to the hearing and a decree awarded for the whole sum.

An order should be entered at once restraining Mrs. Waters from proceeding at law to collect the note. The note should be withdrawn from the Circuit and filed in the Chancery Court,there to stand as an offset to the monthly accruals of the annuity until it is in this method extinguished, and the final decree should stand as a continuing security for the faithful monthly payment of the annuity, with the right each month to have execution issued for the amount due. The final decree, in short, should be so drawn as to carry out and make effective the true understanding of the parties as here explained.

If the entry of such a decree is rendered impossible by reason of the fact that nothing was due when the bill was filed, nothing can be done but to restrain defendant from proceeding at law to collect the note, and then dismiss the bill without prejudice.