Swinney v. Cockrell

• Decision Date: 15 May 1905
• Court: Mississippi Supreme Court
• Parties: JOSEPHINE H. SWINNEY v. NATHANIEL L. COCKRELL

38 So. 353

86 Miss. 318

JOSEPHINE H. SWINNEY v. NATHANIEL L. COCKRELL

Supreme Court of Mississippi

May 15, 1905

April 1905

FROM the chancery court of Leflore county, HON. PERCY BELL Chancellor.

Cocktell the appellee, was complainant, and Mrs. Swinney, the appellant, defendant in the court below.

On September 27, 1904, appellant sold, by deed of general warranty, an undivided half interest in certain lands constituting a plantation in Leflore county to appellee, he owning the other half interest, and took his notes for some deferred payments, and a deed of trust was given by appellee on the property sold, to secure these payments. The first note fell due on February 1, 1905. On December 28, 1904 appellee paid the taxes on the land for that year, after requesting appellant to pay half of it. When demand was made on him for the amount of the note due February 1, 1905, he declined to pay it unless he received credit for one-half the taxes he had paid; and, the note being past due, the trustee in the deed of trust advertised the land for sale under the powers of the trust deed. Appellee then again offered to pay the note if credit was given him for one-half the taxes he had paid, which was declined, and a bill was filed by him praying for a writ of injunction restraining the sale under the trust deed. Mrs. Swinney and the trustee demurred to the bill, and made a motion to dissolve the injunction. The demurrer and motion set up substantially that appellee had no authority in law or equity to pay the taxes on December 28, 1904, and claim an equitable set-off or credit on the note, because the complaint did not charge fraud, accident, mistake, insolvency, irreparable injury, inadequacy of remedy at law, nor a state of case requiring equitable intervention to protect him in the enjoyment of his property, nor any real danger of its loss; that he was amply protected by the covenant of warranty, and had a remedy at law which was adequate; that appellant had until February 1, 1905, to pay the taxes; that appellee had no legal or equitable right to voluntarily pay the taxes and shut appellant off from testing the validity of the taxes. The demurrer was overruled, the motion to dissolve denied, and the injunction made perpetual upon condition that appellee pay the note, less the taxes. From a decree so adjudging the defendant appealed to the supreme court.

Affirmed and remanded.

McClurg, Gardner & Whittington, for appellant.

It is impossible to read the complaint without discovering the glaring absence of a single fundamental element of equitable jurisdiction. There is not a line or word charging fraud; not a syllable charging insolvency, irreparable injury, or inadequate remedy at law; no payment of any part of the large sum due, no legal tender of any part of it--nothing save a statement of wandering facts wholly insufficient to satisfy the mind of anything except that the note was not paid because the taxes for 1904 had not been paid.

Let it be confessed that the taxes should be paid by the defendant, and it does not follow that an equitable set-off arises for that reason against one against whom no fraud is charged, and who is entirely solvent, and subject to the process of the local courts of law.

The interests and rights of a perfectly solvent vendor who has warranted the title are not to be ignored by the vendee. He cannot "take the bits in his mouth" and act arbitrarily and regardless of the interests of a vendor who has made him a warranty deed and is amply able to make that warranty good. The mere fact that there was a lien for the unpaid taxes on December 28, 1904, did not endanger his title or in any wise breach the covenant of warranty. The first note was not due until February 1, and until that date the appellant was allowed by law to pay the taxes. The fact that damages in favor of the tax collector accrued after December 15th, or even that it might be advertised for sale after February 1st, did not endanger the title. In fact, the appellant, vendor, had by law at least until the first Monday in March, sale day, to save her covenant. Then two years thereafter must expire, or nearly so, before the title became actually imperiled; the law allows that time within which to redeem. It does not improve the vendee's case to say that he called upon the vendor to pay, for the law charged...