McDonald v. Kamper

42 So. 877, 89 Miss. 221

• Court: Mississippi Supreme Court
• Decided: November 15, 1906
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

The bill sufficiently shows on its face that the three notes secured by the trust deed, aggregating $1,665, were without consideration for the excess over $504, which sum it admits to be due. Facts are averred from which the court can see this equity, and so Tittle v. Bonner, 53 Miss., 584, has no application.

The bill was to enjoin a sale, which was to be made, according to the advertisement of the trustee, to pay all three of the notes, ■on the ground that, except as to the $504, they were without ;any consideration, and it contains, as to this and the legal interest on it, the averment that “complainant is willing and ready to pay in full settlement of the said notes and trust deed securing the same when due, and no part of even the $1,665 will be due on the date advertised for the sale.” The demurrer to this bill contains only this ground, viz.: “There is no equity on the face of said bill of complaint.” The chancery court sustained this demurrer, and dismissed the bill. This was error, because, as we have held above, there was equity in the bill.

Here the point is made, which does not appear to have been made in the chancery court, that there was no actual tender in court of the money admitted to be due. This is not' available here, nor below, because, if valid at all, the demurrer does not point out this, and gives no notice that this ground would be relied on. The general ground of “no equity on the face of the bill” is not enough in a case like this. Code 1892, § 530; Code 1906, § 581; Code l892, § 696; Code 1906, § T5-T.

We do not decide now whether- actual production of money in court is necessary, but think it proper that this case be

Reversed and remanded.