Volume 1 — Smedes & Marshall's Mississippi Reports

The complainants alleged in their bill that, in the year 1834, one Caleb B. Hudson, then of the county of Jackson, in the State of Alabama, died, having first made his will, which was duly probated in the county court of that county. That at the time of his death he was seised and possessed of large real and personal property.

The original bill in this case was filed by A. M. and J. U. Payne, against John Cowan and others, to marshal assets. John Cowan had executed a deed of trust to the complainants upon a number of negroes : this deed of trust had been foreclosed by the trustee, and the complainant A. M. Payne had become the purchaser.

In this case, a motion was entered to suppress the deposition of a witness, who was also a party to the suit and a surety on the injunction bond.

The complainants, in their bill, alleged that in the year 1838, one William F. Courtney bought of Edward J. Pinkerton a lot of ground in the town of Manchester, in this State ; that Courtney, to secure part of the purchase-money, executed his two notes to Pinkerton, which they purport to exhibit with the bill, for twelve hundred dollars each, for the payment of which it was stipulated, in the deed from Pinkerton to Courtney, that the lot was to be bound, until both the notes…

The brief of Messrs. Harrison and Holt presents a very full and detailed statement of the facts, exhibited by the pleadings in the cause.

The complainant alleges in her,bill, that she and the defendant intermarried in this State, in 1826 : that she lately filed her bill,… Held: as trustee of the complainant, but that question was reserved for the disposition of this Court : that at the time of the marriage the defendant was possessed of the following property, to wit : two male slaves, worth about $1000 ; that in about twelve months thereafter, the complainant’s father, L. B. Taliafferro, gave defendant, in…

The brief of Mr. Smedes furnishes a full abstract of the case. The original bill was filed November 8, 1841. The answers of Winn and Genella, and the demurrer of Walker and Meilke, were filed on the 4th January, 1842, and the cause placed on the hearing-docket, at the same term to which the answers and demurrer were filed. An affidavit for a continuance, and a petition ,to file an amended bill, were submitted, with the cáse, when the hearing-docket was called.

The bill in this case charges, that some time prior to the 18th of April, 1840, John M. Scott sold a negro woman named Eliza, to William H. Browning, who, on that day, sold her to Elizabeth Parks, mother of complainant, and administratrix of Thomas Parks, deceased, his father. That said Elizabeth held said slave as the property of the estate of Thomas Parks until March, 1843, when, in a division of the estate, said negro was allotted to complainant.

The facts of this case sufficiently appear in the brief of counsel, and the opinion of the Court. The bill is multifarious. It joins distinct demands against distinct defendants. What interest has M’Dowell in the mortgage of Mills, or in the land and negroes secured by that mortgage ? And, on the other hand, in what is Mills’s interest in the land of M’Dowell ? The rights of each to redeem are separate ; their interests are separate ; their mortgages unconnected.

Upon motion to amend the decree made in this case : The amendment desired, is- to obtain a change in the length of time required by the decree for the publication of the property. The decree is an ordinary one ,for the sale of mortgaged premises, and counsel, in drafting the decree, (it was not drawn up by myself,) by inadvertence, inserted six months, instead of six weeks, the usual period. The mistake was not detected until after the decree was signed by your Honor.

An issue was ordered by the Chancellor to ascertain a question of fact, about which the testimony was conflicting. It is only necessary to notice such parts of the evidence and pleadings as tend to elucidate the points of practice decided in the case ; the merits of the controversy not now coming under review.

The bill was filed by Henry S. Foote, and a great many others, as complainants, against Burr Garland, and George N. Hoan, the latter of whom was a non-resident. It averred that Foote, one of the complainants, and Thomas C. Johnson, in the month of September, 1836, formed a mercantile partnership, under the name of T. C. Johnson & Co., to do business in this State.

The bill, after reciting the names and residences of the complainants, states that William Barrow, of Madison county, in this State, died intestate, [leaving complainants, his widow, and heirs at law ; that Lydia A. Barrow, the widow, one of the complainants, and Samuel Borrow, the defendant, one of the sons of William Barrow, deceased, [administered upon his estate; that Lydia A. Barrow, being infirm, left the management of the estate to Samuel Barrow, who took possession…

The bill was filed by Fisher Beverly, R. Grayson, and Nancy Brown, administrators and administratrix, cum testamento annexo, of Jesse S. Brown, deceased, and alleged that their testator was seised of lands in his lifetime, which, by order of Court, they had sold to Burwell T. Edrington, who gave his note, with sureties for the purchase-money, and they conveyed the land by deed to Edrington ; that Edrington died, leaving a widow and two children; that, before his death, he…

This case was submitted to the Chancellor, upon a motion to _ dissolve the injunction granted in the case, by one of the circuit judges ; the motion was based upon the want of equity on the face of the bill.

The complainant, administrator of Charles S. Lee, residing in Louisiana, alleges that Lee departed this life in Mississippi, in 1836, leaving a large estate of movables and immovables in Louisiana, as also some estate in Mississippi.

A motion was made in this cause, to set aside the pro confesso heretofore entered against the defendant, Joseph Nichols, because he had never been served with process, and no special appearance had been entered for him.

In this case the bill had- been filed without its exhibits ; on the return of process “ executed,” the complainant took the bill for confessed, and a motion was made to set aside the pro confesso, upon affidavit. Judge Thompson, however, desirous of settling a point of practice, inquired whether a party complainant-has a right to take a pro confesso before the exhibits to his bill are filed ?

This case had been submitted at the present term of the Court, for final hearing, and the Chancellor had ordered a decree against the complainant. A motion was entered upon the motion-docket for a rehearing, accompanied with a petition ; signed, however, only by the complainant’s solicitor.

The abstract and brief, prepared by L. Sanders, Jr., Esq., present a very full and fair statement of the case, and have been accordingly adopted. The bill was filed on the 9 th of May, 1842.

The bill states, that, at the May term, 1839, of the Yazoo' circuit court, Hayden, for the use of Pope, recovered a judgment against Vance and Joseph Andrews, for $3,832-55.

This bill is filed by the heirs of Charles Land, and charges that their ancestor purchased from Betsey Beames, or Istanchi, her reservation under the 14th “ article of the Treaty of Dancing Rabbit… Held: that the registry of the name with the agent, was conclusive evidence that the individual was an ■ Indian head of family; e converso, the refusal of the agent to register, must be conclusive evidence that the individual had failed to establish a claim to that character.

The complainant, administrator de bonis non of Harry Long, deceased, by his bill alleges, that in November, 1837, Howell Hobbs, who was the then administrator of his intestate, having obtained an order from the Probate Court, sold the negroes belonging to the estate, and Joseph Gold became the purchaser of Ben, Jim, and hoy, and gave his note for the purchase-money, three hundred dollars of which only had been paid ; .that said negroes were in the possession of the defendant…

The bill, in this case, was filed to enjoin a judgment at law, and was demurred to generally. The case was submitted to the Chancellor on a motion to dissolve the injunction. The opinion in the case gives all the facts. The bill seeks to enjoin a judgment at law, and the fiat of the Judge follows the prayer of the bill. The exhibit filed by complainant shows only the original judgment : but the injunction is so phrased as to enjoin the judgment on the forthcoming bond.

Oscar Hope, the complainant, filed his bill, alleging, that, in the year 1836, he purchased of Evans a large quantity of lands and a number of slaves by one entire and undivided contract, for which he agreed to pay said Evans the sum of thirty-six thousand dollars ; that, to secure the payment of notes given by'him for this sum, he conveyed the same real and personal estate to the defendants, Pope and Plamer, in trust, to sell the same, on certain terms, in case of his…

Thomas E. Ro.bins, William S. Bodley, and William C. Walker, filed their bill, in which they state, that on the 13th d?y of February, A. D. 1840, the President, Directors, and Company of the… Held: that all passed. Is the deed, upon its face, fraudulent ?

This case was submitted upon demurrer to the bill. The bill was filed by the heirs of Claudius Gibson, to enjoin the sale of certain land by the trustee, who is made party. The facts disclosed by the bill and exhibits are :— That Gibeon Gibson, in 1836, purchased from defendant, Niblett, a “large lot” of slaves, the purchase-money of which was all paid but about the sum of fifteen thousand dollars.

[It is not considered necessary to the proper understanding of the points involved in this case, to give a close abstract of all the pleadings and proofs : such an abstract \\… Held: in the courts of the first respectability in the United States, that the right only vests from the date of the filing the bill, or issuance or service of subpoena, or from the time that some act has been done known to the parties on the other side, evidencing an intention to come into equity.

In this case, at a previous day of the term, the Chancellor delivered an opinion, which will be found in the former portion of this volume ; an application was subsequently made for an appeal from the interlocutory decree ordered, referring the cause to a commissioner, to state an account between the parties, in the manner and on the terms embraced in the opinion referred to, and which were stipulated in the decree.

The bill in this case was filed by Joseph Newman, and alleged, in substance, that, on the 4th May, 1838, Jesse Meek obtained a judgment in the Madison Circuit Court, against the complainant, and John Briscoe, for the sum of twelve thousand four dollars and sixty-five cents, which was the only liability on which complainant was bound by promise, verbal, written, or of record, to the defendant, either in his individual capacity, or as administrator of Joseph Meek, deceased.

On the 1st day of April, 1843, Jabez Jenkins, Jr. filed his bill, alleging that, on the 1st day of November, 1837, Roderick M’Leod purchased of Joshua C. Jenkins a lot of ground, with the improvements thereon, lying in the city of Vicksburg, at the sum of five thousand dollars ; and on the same day Jenkins executed to him a deed in fee simple thereto ; that in the deed the lot is described as follows, to wit: “ Commencing— feet east of the northwest corner of lot No. 201, in…

The facts will be found stated at sufficient length in the opinion of the Court. We cannot find one single ground for the interposition of this Court, set forth in the bill. If such exist, it is fully denied by the answers. The bill should be dismissed at the costs of the com- • plainant.

The bill shows, that on 10th March, 1836, John Conn, since deceased, and Margaret his wife, conveyed to Joseph Joseph, Hardy Hendren, and others, a certain lot of ground in the city of Vicksburg, being lot 90, in square 16.

The complainant’s right to a recovery in this case turned entirely upon the construction of the marriage contract between himself and his wife.

The bill states, that on the 26th day of November, A. D. 1830, the complainant became indebted to the defendant in the sum of nine hundred and seventy-nine dollars ; for which he executed two notes, one for four hundred and eighty-three dollars and ninety-eight cents, and the other for four hundred and ninety-five dollars and sixty-five cents.

<p>R. obtained a judgment against F. in Louisiana, by default, and sold a tract of land to F. in discharge of the judgment, and gave a receipt accordingly. Subsequently, R. fraudulently procured the judgment by default in Louisiana to be rendered final; and thereupon brought a record thereof to Mississippi, and sued F., who permitted judgment to go by default, and filed his bill in this Court, alleging as his reason for not defending at law, that the fiual judgment in Louisiana was junior to the date of the receipt; held, that the defence of F. was purely legal, and that the reason given for not making the defence at law was insufficient.</p> <p>Where the plaintiff in a judgment, rendered in a sister State, comes here to enforce it, it is entirely competent for the defendant to show, that the judgment was obtained by fraud.</p> <p>Fraud vitiates judicial acts, and renders them utterly void.</p>

The record in this case is very voluminous, and the pleadings complicated. An attempt will be made, however, for the purpose of exhibiting the facts upon which the Chancellor based his opinion, to give a full yet succinct history of the case. To do this, it will not be necessary to abstract in full the various bills, answers, cross-bills, amended bills, and exhibits, which constitute the case, and have swelled the record to its present size.

The bill, filed 16 January, 1838-, states, that complainant is the only legitimate surviving child of the marriage of William Young and Elizabeth, now the wife of defendant Suggs, they living separate. Complainant’s father died intestate, in Alabama, in 1816, leaving property.

This cause was submitted upon the demurrer of two of the defendants, according to the practice of the Court. The opinion of the Chancellor presents a full view of the points made by the demurrer,. and those portions of the bill to which they refer, and no abstract of the bill is therefore given.

The bill states that Michael Wall, and more than a hundred other persons, entered into articles of partnership in April, 1838, for the purpose of banking, under the style of the Real Estate Banking… Held: that to make a foreclosure of a mortgage valid, all parties in interest must be brought before the Court.

The bill in this case was filed by Henry Smith, John L. Smith, and John Brown, complainants, against Robert J. Walker and Thomas Barnard.

The bill in this case, was filed to foreclose a mortgage executed by one Jacob B. Warmack in.his lifetime, on the 5th day of April, 1836, to the complainant, Adam L. Bingaman, but not recorded until the 26th of September, 1836, conveying to said complainant “ certain land lying and being in the county of Yazoo and State of Mississippi, situate on Short Creek, about three miles from Manchester, in township eleven, range two, west, and in sections eight, nine, ten, fourteen,…

The bill charges, that on the 5th of April, 1841, the complainants, Mears and Walker, obtained a judgment against Edward L. Winslow, in the Superior Court of law in the county of Cumberland, in the State of North Carolina, for f>74S6'26, with interest at the rate of six per centum per annum till paid ; that the execution which issued thereon was returned by the sheriff of said county indorsed, “ no property,” &c. ; that said Winslow is a citizen and resident of the State of…

The bill in this case was filed by William Robinson, against Thomas J. Thompson, and Andrew J. Rembert, to foreclose a mortgage given by Thompson under these circumstances.

The facts of this case, so far as they are material to the decision of the Court, will be found at length in the opinion of the Chancellor. That the vendor has a lien on the land sold, for the portion of the purchase-money remaining unpaid. Fonb. Eq. 295. See also Walker v. Preswicke, 2 Ves. 622 ; Pollixfen v. Moore, 3 Atkins, 272, as to the lien against the purchaser, or any one claiming under him with notice.

The bill in this case states that the complainant, Redding B. Herring, made a note with the defendants, Thos.

In the year 1828, Wm. N. Mercer, administrator of B. Farrar, deceased, filed his bill to foreclose a mortgage given by defendant to Farrar, dated October 19tb, 1824, upon a tract of land on the… Held: under the facts, the complainant entitled to the relief he asked. Upon the similar proof in this case, to be found in the record, a similar decree should be given.

The bill in this case states, that one Stephen Minor, since deceased, in his lifetime was seised of a certain tract of land in fee simple in Claiborne county on the South Fork of Bayou Piere, of 770 acres, on which he resided previous to August, 1814 ; that previous to that period, he intermarried with one Ann Gibson, who is made a defendant to the bill ; that Joseph Briggs, sheriff of Claiborne county, by virtue of an execution against Stephen ■Minor, levied on said tract…

<p>The facts of this case sufficiently appear in the opinion of the Chancellor.</p>

The bill in this case states, that in February, 1836, Hiram G. Runnels, Malachi B. Hamer, Edmond Pursell, Israel W. Pickens, Joseph C. Pickens, and Jacob Collins, and their successors, were incorporated, by the legislature, proprietors of the town of Montgomery, in Holmes county, and authorized by the act to make a turnpike across Big Black Swamp, near said town ; and before any steps were taken to construct the turnpike, Collins’s interest was sold, under execution, to…

The bill in this case stated, that Henry Hunter died in 1822, leaving a large estate, real and personal, considerably embarrassed. That William Yerby was appointed administrator, and reported an inventory of personal estate, amounting to $11,457-76 ; and returned an account of sales, of both real and personal estate, amounting to $21,276-42.

The facts of this case will be found substantially detailed in the Chancellor’s opinion. The bill was demurred to, and the case was submitted upon the demurrer. 1. That Izod, Little, and Mackin were improperly joined as defendants, they having no interest in the matters set up in the bill. 2.

<p>"M. indorsed a note in favor of G., upon which the maker afterwards paid part, and renewed the balance by a new note, which M. also indorsed; suit was afterwards brought, and judgment obtained against M., when he exhibited his bill, stating that the note had been given for an illegal consideration, which he was not aware of until after judgment was given against him, and therefore he did not defend at law; held, that the excuse, for not making the defence at law, was insufficient, and equity could grant no relief.</p> <p>.G. sold B. and W. negroes, introduced into this State in violation of law; B. and W. executed a note in part payment, which M. indorsed; G. sued B. and W. at law, upon ;the note, and they set up the illegality of the consideration of the note, and were discharged. G., at the same time, sued M., the indoiser, who, being ignorant of the consideration of the note, made no defence, and judgment was had against him. M. exhibited his bill, setting forth these facts, and praying for a perpetual injunction „ against the judgment at law ; held} that M. was entitled to the relief asked, and that the injunction should he perpetually enjoined.</p>

An application was made in this case, upon affidavits, to set aside a pro confesso, entered at a former day of the term against the defendant.

The bill, in this case, alleges, that at the sale of lots in the town of Grenada, at auction, by the proprietors, John Reed purchased lots No. 75 and 76, at the price of two hundred and five dollars, for which he executed notes, and delivered them to Uriah Tyson, the agent of the proprietors, and Tyson gave bond in due form for a title, on payment of the purchase-money : that Reed went into possession, and made valuable and durable improvements, and occupied the same till…

<p>The rule, that a party must recover upon the strength of his otvu title, and not upon the weakness of his adversary’s, holds equally in equity as at law.</p> <p>Under the 14th article of the Dancing Rabbit Creek treaty, granting reservations of land to the head of each Choctaw family, and to each of his children, the treaty intended to secure to the head of the family only ohe section, and to each of the children the amounts stipulated by the treaty ; held, therefore, that the bill of a Choctaw Indian, setting up title in himself, to the portion of land reserved for his children, must be dismissed.</p>

The bill in this case states, that Jane Davis was appointed guardian of Matilda Vaughan, an orphan, and came into possession of eight slaves, the property of said Matilda, to wit: Laura, aged 24, and her two children, both hnder the age of 4 years ; Fanny, aged 40, and her 4 children ; Alran, aged 18 or 20, Sandy, 10, Martha, 6, and Henry, 4 years.

In this case an injunction bad been granted, staying an execution at law in favor of the Agricultural Bank against tbe complainant. The bank moved to dissolve the injunction, and tbe cause was submitted upon that motion, and also, if tbe case was considered in readiness for it, for a final decree.

This cause was submitted for a final decree, upon the bill of the complainant, and the answer of James Hanna, and pro confesso against the other defendants, and the depositions in the case. No abstract of the pleadings and proof is given; the only points of interest involved being a question of law and of fact, stated at length in the opinion of the Court. This cause is now submitted for .final hearing, on the answers of, and pro confesso decree against, the defendants.

<p>C. filed Ms MU, alleging that B., administrator, sold a lot of ground of his intestate, to him, representing that he had full power to sell, when in fact he had none, and no order of court had been obtained for that purpose ; that be had executed his note for purchase-money, had been sued, and judgment had been obtained against Mm ; that he did not know, until after judgment, that B. had had no power to sell, and that he had no order for that purpose ; B. demurred to the bill; held, that the bill presented a good case for relief; that B. was guilty of fraud in the misrepresentation, and that the demurrer must be overruled.</p> <p>Where an administrator sells property of his intestate, there is an implied covenant with the purchaser, that he has authority to sell.</p> <p>An allegation, that the complainant did not come to the knowledge of the defect of his vendor’s, who was an administrator, power to sell, till after the judgment at law in favor of the vendor for the purchase-money, is a sufficient excuse for not having made the defence at law.</p> <p>It is essential to the validity of an administrator’s sale, that the probate record disclose a substantial compliance with the requirements of the statute on that subject.</p>

<p>P., about to trade with D., for the note of H., went to H. to inquire if the note was good ; H. answered, it was good, and would be paid at maturity; P. thereupon traded for the note, and afterwards assigned it to J. (informing him of H.’s statement), who sued H. thereon ; held, that H. was precluded by the representations made to P., from setting up as a defence to the suit by J. any failure of consideration between himself and D., the original holder of the note.</p>

The bill in this case was filed by the heirs-at-law of Pickens, deceased, to set aside the probate of their ancestor’s will, alleged.to have been effected by fraud and surprise. The will, among other things, emancipated the slaves of the testator, and also constituted a residuary legatee, who was not made a party to the bill.

Several cases were submitted to the Chancellor at the same time, involving the same questions of law and fact; the statement of the facts of one case will be sufficient. The complainant filed his bill, stating, that Malachi B. Hamer, Frederick Stanton, and Henry S. Buckner, obtained judgment at law, in the Circuit Court of Yazoo county, against Lineas B. Markham, and Vincent Galloway, for $329, in May, 1838.

The bill, in this case, states, that complainants are administrators of J. Neibert, deceased, and at the last February term of the Probate Court of Adams county, they represented said estate insolvent, and commissioners to audit claims were appointed by said Court. A copy of the proceedings in said Court are exhibited with the bill.

The complainant, in this case, states, that on the 26th of December, 1835, he purchased, of Morgan & Fitz, land, at the price of $21,000, payable, $7000 in cash, $7000 1st January, 1837, $7000 1st January, 1838, all secured by notes dated 26th Dec., 1835 : that by deed of trust to H. G. Johnson and Gideon Fitz, he conveyed, on the same day, land, to secure the payment: that the first two notes have been satisfied : that the trustees are about to sell the land to satisfy the…

The bill in this case was filed to enjoin the collection of a note given for property purchased at an administrator’s sale. It is not necessary to give a more detailed statement of the facts of the case, tba'n is given in the opinion of the Court; the questions involved being principally questions of law, and the facts being admitted by the demurrer to the bill. The case was submitted upon the demurrer, and a motion to dissolve.

<p>F. filed his bill against W. F., alleging that they had been partners, and that W. F. was indebted to him on their partnership liabilities, and also on his private account, in a large sum, not reduced to judgment, and seeking to attach adebt due by M. and D. to W. F., to be appropriated to the payment of W. F.’s debt to F.; held, that the court of chancery had no jurisdiction of the case.</p> <p>A bill uniting partnership and private demands, filed by one partner against another, is fatally defective.</p> <p>A creditor at large, cannot come into a court of chancery upon a purely legal claim, and enjoin his debtor from selling, receiving, or disposing of his effects.</p> <p>Where a bill for injunction had, been filed twelve months, and the answer, denying its allegations, been filed four months, and by law the complainant was authorized to take testimony in thirty days after the bill was filed, and a motion was made to dissolve the injunction ; held, that a continuance of the motion will not be granted, to enable the plaintiff to procure testimony to sustain his bill.</p>

The complainants, Edward Shaw, and his wife Mahala Shaw, late Mahala Powell, state in their bill that, at the May term, 1834, of the Holmes Probate Court, letters of administration on the estate of Samuel R. Powell, were granted to his widow, one of the complainants; that, before the administratrix made any inventory of the estate, she exchanged the note of A. G. M’Nutt, the property of her intestate, for two negro slaves; she afterwards made an inventory, and put said…

The bill, in this case, averred, that the complainants were two of the stockholders of the Commercial Bank of Rodney : that at a meeting of the stockholders, at which they were not present, and of which they had no notice, it was agreed to assign the bank to trustees for the benefit of the creditors : that the directory of the bank accordingly made such an assignment, on the 28th of March, 1843, to the defendants, Freeland and Murdock, two of the directory.

The bill in this case was filed by the complainant, to enjoin an execution upon a judgment at law, which had been levied upon some negroes, as… Held: that the words, “heirs of the body,” are held to be words of limitation, and not of purchase; and that the generality of the terms used in a deed will always be restrained for the benefit of children, when the conveyance of property is made with a view to a marriage, or for the benefit of the issue of such marriage — and the…