Robinson v. Thompson

1 S. & M. 454

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

This is a bill in the ordinary form to foreclose a mortgage, given by the defendant Thompson upon two negro slaves, to the complainant and the defendant M’Grew, to indemnify them as Thompson’s sureties, on a note payable to A. J. & G. W. Rembert, for the sum of twelve hundred dollars. The mortgage provides, that if Thompson failed to ,pay said sum of money, the mortgagees should be at liberty to sell the slaves, and apply the proceeds in discharge of their liability, as sureties of the mortgagor. It is further alleged, that Thompson failed to pay the note, except the sum of three hundred dollars ; and that he refused to deliver the slaves to bd sold in accordance with the terms of the mortgage.

It appears that the note upon which the complainant is surety, was given to the Remberts for the purchase of the same slaves, afterwards mortgaged to the complainant and M’Grew. The defendant (Thompson) resists a foreclosure of the mortgage, upon three grounds. 1. He insists, in his answer, that the note, against which the mortgage was given as indemnity to the complainant, has been extinguished by an agreement between himself and Rembert, that he should pay three hundred dollars, and deliver back the slaves to Rembert, in discharge of the remainder of the money due on said note. Although such an agreement may have been made, yet the proof falls short of showing a compliance therewith, on the part of Thompson. On the contrary, he is shown not only to have retained the possession of the slaves long after this agreement, but made oath that they were his property. Even, therefore, if such an agreement was made, it is clear that it was never carried into effect, and that the right of property in the slaves was not thereby changed. It would be a novel application of the rule of equity, to consider that as done which was agreed to be done, in favor of a party, who himself prevented the execution of the agreement.

2. The second ground taken, is, that the defendant Thompson has been garnisheed at law by the creditors of Rembert. I do not readily perceive what connection this fact has with the right of the complainant to foreclose his mortgage, and have himself discharged from his suretyship, by applying the proceeds of the slaves in payment of the debt for which he is bound, to any one who may show a legal right, thereto. A payment of the debt to Rembert’s creditor, if legally entitled thereto', would as fully discharge him, as if paid to Rembert himself. Such a state of things would only devolve upon the Court a different application of the money from that which would otherwise take place.

3. The third ground is, that no decree can take place in favor of the complainant, until the representatives of G. W. Rembert, who is alleged to be dead, aré made parties. The proofs disclose the fact, that A. J. & G. W. Rembert were partners, and, according to a familiar principle of the law of partnership, the right of administering the partnership effects survived to the surviving partner ; he, therefore, is the proper and only necessary party to represent the partnership interests. From this view of the case, I am of opinion, that the complainant is entitled to the relief which he asks, and shall accordingly direct a reference, to ascertain the amount now due from Thompson, and, upon a report being made, a decree of foreclosure and sale may be had on the usual terms. The decree must provide that the money when collected shall be brought into Court, subject to be applied as the Court may direct.