Rush v. Pearson

• Decision Date: 02 March 1908
• Citation: 92 Miss. 153,45 So. 723
• Court: Mississippi Supreme Court
• Parties: PHILIP A. RUSH v. LELAND L. PEARSON ET AL

45 So. 723

92 Miss. 153

PHILIP A. RUSH v. LELAND L. PEARSON ET AL

Supreme Court of Mississippi

March 2, 1908

October 1907

FROM the chancery court of Tate county, HON. ISAAC T. BLOUNT Chancellor.

Rush the appellant was complainant in the court below; and Pearson, the appellee, and A. W. Shands, as cestui que trust and trustee respectively in a deed of trust executed by Rush were defendants there. From a decree unfavorable to the complainant he appealed to the supreme court.

The appellant, Rush, sued out injunction to restrain the appellees from selling certain real and personal property under a deed of trust which Rush had previously executed to Shands as trustee for the use of the appellee, Pearson. The appellant's bill averred that as a result of different transactions with appellee, Pearson, the appellant "under business compulsion" executed to the said appellee three promissory notes aggregating $ 5,437.50; that the indebtedness evidenced by these notes, and because of which foreclosure of the deed of trust securing the same was threatened, was tainted with usury; that only $ 2,700 was actually due by appellant to appellee as the true indebtedness evidenced by the notes; that he, appellant, had often offered to pay to said appellee such sum of $ 2,700 in full acquittance of the indebtedness now past due, but that said appellee contended always for the payment of the full face and interest of the notes; and that, as appellant's property was being advertised for foreclosure sale by the trustee acting at the request of said appellees, the aid of equity was necessary to protect appellant's rights. The appellant's bill further recited that "complainant (Rush) does not tender in court the amount actually due, for two reasons; first, because, as the defendant, Pearson, has refused to accept the same or to express any purpose to accept the same in satisfaction of his claim, complainant, Rush, could not close any transaction for a tender which would be permanent and continuous throughout the uncertain time when this case may go on, complainant's means of obtaining such sum being tied up by the defendant's usurious holdings; and, second, because since the defendant is about to have a sale made unlawfully, it is evident that the relief prayed should not depend on the making of any sort of tender. Appellee Pearson's answer denied that the indebtedness was in any way tainted with usury, and also denied that Rush had ever offered to pay even the alleged sum of $ 2,700 as charged in his bill. On the hearing of the cause on bill and answer and affidavits and motion by appellee Pearson to dissolve the injunction the court sustained the motion with the proviso that appellant, Rush, should be entitled to have the injunction continue in force until final hearing if he would pay over the amount he admitted owing. Instead of paying such amount, the appellant, Rush, prosecuted this appeal to the supreme court.

Affirmed and remanded.

Phil A. Rush, pro se.

The strict rule requiring tender of money, as applied to debtors wishing to avoid any question of liability for interest and costs, should not apply to a complainant seeking to restrain sale of his mortgaged property on account of a sale threatened to be made for the purpose of realizing a sum in excess of what is conceded by the complainant to be due to his mortgagee.

In a case such as this, even where the excess claim is small, and where no...