Aust v. Rosenbaum

• Decision Date: 15 March 1897
• Court: Mississippi Supreme Court
• Parties: J. H. AUST ET AL. v. C. ROSENBAUM

21 So. 555

74 Miss. 893

J. H. AUST ET AL. v. C. ROSENBAUM

Supreme Court of Mississippi

March 15, 1897

March 1897

FROM the chancery court of Noxubee county HON. T. B. GRAHAM Chancellor.

Bill in equity by J. H. Aust et al. against C. Rosenbaum, seeking to redeem mortgaged premises. From the decree of the court below denying redemption, complainants appealed. Pending the suit in the court below an effort was made by Rosenbaum to sell the land in controversy under the mortgage, Which was in form a deed of trust, and the complainants obtained, on a supplemental bill, an injunction against the sale; but before its actual service the land was sold, and Rosenbaum was declared the purchaser. The facts in reference to this sale were brought before the court, and a decree was made adjudging it void. Rosenbaum prosecuted a cross appeal, and sought to vacate the decree adjudging his purchase invalid. The other facts are stated in the opinion.

Decree affirmed.

J. E Rives, for appellants. This was a bill to redeem.

The bill was filed after the debt became due, and was not in its nature a bill to enjoin, but simply one to redeem. The bill fully compiled with the requisites of a bill for redemption. "A mortgagor can always come into a court of equity and obtain a decree removing the lien of the mortgagee." Pomeroy on Eq. Juris., sec. 1219. What are the essential requisites for maintaining the suit? "The essential requisites for maintaining the suit are that the mortgage debt should be due, and that the mortgagor should offer to pay whatever amount is due, and should pay the same when ascertained and fixed by the decree." Ib. Now, in this case there was an offer on the part of complainants to pay whatever amount the court should find to be due; and we ask, further, that the entire tract of land, or so much thereof as may be necessary, be sold to satisfy and pay defendant every dollar that might be found due. But this is not all; the bill was also one for an accounting. What is an offer to do equity? Mr. Pomeroy lays it down as a rule that a complainant is required "to acknowledge, admit, provide for, secure or allow whatever equitable rights the defendant may have." Sec. 388. At no place does the author say that under this rule the complainant should in every case make an actual tender of the full amount due. He recognizes the fact that in some cases the position of the parties, the circumstances and all, would compel a court to say that in order to do equity a tender--an actual tender would be necessary, while under other circumstances an offer to pay defendant out of the proceeds of the mortgaged property would be a sufficient offer or compliance with the rule.

T. W. Brame, for appellees.

There was no offer to do equity on the part of Aust. He did not tender, nor offer to tender, to C. Rosenbaum any amount. It was Aust's duty to offer to pay at least what he thought was due. This he does not do, and his bill and supplemental bill should be dismissed. Duncan v. Moore, 67 Miss. 136.

On cross appeal the burden is on Aust, to show that the sale was made in disregard of the fiat of injunction, and that defendants had notice of the writ of injunction before the sale, which notice should be authoritative. The testimony shows clearly that the defendants were not served with notice until after the sale was made.

OPINION

WOODS, C. J.

The original bill, and the first and second supplemental bills, should have been regarded and treated together as one pleading in the court below. Both supplemental bills set up matters transpiring subsequently to the filing of the original bill, and matters, too, arising because of the wrongdoing of the respondents in their disregard for and contempt of the authority of the chancery court. Considered, then, as one complaint, and not as three, as was done below, we find a bill exhibited in a threefold aspect, viz.: a bill for a discovery and an accounting, for relief from usurious interest and for a redemption. The bill, moreover, charged frauds by specific averments, in plain terms, and required an answer, though none was filed with the demurrer to the original and first supplemental bills, nor, in fact, ever filed. Besides the many other charges of the bill, it avers that C. and H. Rosenbaum entered into a combination or scheme whereby they were to secure the mastery over the complainants and their home and plantation, and by a long continued series of illegal and fraudulent acts be, at length, enabled to overpower complainants and wrest their property from them and convert it to their (respondent's) own use and profit. The bill alleges that, as part of this scheme, H. Rosenbaum was to be made the supply merchant of the complainants, sell them goods at unusual and extortionate prices, charge usurious interest on balances, keep complainants in ignorance of the state of the accounts with him by withholding and refusing to make up and furnish complainants with statements and itemized accounts of their dealings, and, at the end, falsely pretend that C. Rosenbaum had become the owner of the accounts thus made by complainants with H. Rosenbaum, whereby they (the respondents) were enabled to incorporate into the note given for the $ 600 actually loaned at the start by C. Rosenbaum, the store account indebtedness of complainants to H. Rosenbaum, and have complainants secure payment of that, with grossly usurious interest, in the same trust deed upon the home and plantation of complainants which inexorable necessity had constrained them to give to secure payment of the $ 600 loan.

The bill avers that, taking advantage of J. H. Aust's ignorance of business affairs, and of his sickness, and of his reliance upon the good faith of respondents, and of his reliance upon their agreement and promise to correct any errors which might thereafter appear in the store accounts, the store accounts, to the sum of several hundred dollars, were incorporated in the renewal note for the loaned money, and their payment secured by the trust deed which secured payment of that loan. The bill then avers that, despite repeated requests for itemized accounts of their accounts with the store of H. Rosenbaum, they have persistently been refused and denied, and that complainants, by reason of such misconduct on the part of H. Rosenbaum, in refusing to make up and furnish complainants with copies of their accounts, itemized, are unable to say what they really and truly owe upon such accounts, but they aver that, independently of usurious interest, they owe a greatly smaller sum than that whose payment respondents are demanding, and that the difference between the sum really and honestly due and that which respondents claim to be due, grows out of extortionate charges for goods, false charges for goods never purchased by complainants, and failure to give complainants proper credits for payments made; and so they pray a discovery and an accounting first, and then for redemption when they have been enabled to see what their indebtedness really is, after purging the whole debt of its glaring usury.

The bill admits the indebtedness, after being purged of usury and after false...