Williams v. Simpson

70 Miss. 113 | Miss. | 1892

Woods, J.,

delivered the opinion of the court.

The precise question is, may a defendant in an action of forcible entry and unlawful detainer show—

1. That the conveyance through which the plaintiff seeks to show his right to possession is made by a trustee in a trust-deed executed by the defendant theretofore, to secure a debt due by defendant to plaintiff', and contracted in the course of dealings between them as merchant and customer.

2. That at the time the debt, so secured by said trust-deed, was contracted, the plaintiff was a merchant who had failed to pay his privilege tax as such.

8. That at the trustee’s sale, in an effort to secure payment of the debt, the delinquent merchant was the purchaser.

4. That under a deed made pursuant to such sale, the plaintiff seeks to show title to the premises, in order to demonstrate his right to maintain this action under our statutes.

We answer that the defendant may protect himself in this action by showing that the debt was not collectible by law; that the trust-deed was void, and that the conveyance from the trustee was likewise void. The debtor had a right to stand upon the absolute invalidity of the contract made with the merchant who was delinquent in paying his privilege tax. He could stand, and, in any contest between such merchant and himself by which the merchant sought to possess himself of the fruits of his void contract, he could show that the title of his adversary was a nullity.

This suit was but a step in the proceedings necessary to maintain a contract declared by. statute to be null and void. In this further assertion of his supposed rights under the void contract, the delinquent privilege tax-payer is only seeking to reap the benefits which he attempted to secure to himself by such contract, and his debtor may meet his attack at any point, in any forum. He might have exhibited his bill in chancery to enjoin the sale under the void trust-deed, but he was not compelled to do so. He may stand on his possession of the property attempted to be conveyed by the void deed, and there resist the attack of his adversary. If he had gone into a court of equity, as suggested by appellee’s counsel, he would have been required to do equity by paying what he really owed; but that would have been attributable to the peculiar rules for the administration of law in that forum. He chose not to subject himself to the imposition of that burden, and the creditor has seen fit to make his assertion of his rights under his contract in a court of law, and must abide the consequences.

The result necessarily flowing from any other view would virtually abrogate the statute. If the debtor of the merchant delinquent for privilege tax should be required to resoi’t to equity for his defense, no merchant need ever again pay the tax which the law designed, by severest penalties, to constrain him to pay at the proper time. If the debtor could only have relief by an appeal to a court of equity, in which he would be required to pay the debt before having relief granted, the merchant would have an open door through which to escape the plain requirements of this stringent law.

Reversed and remanded.