Stacy v. Barker

1 S. & M. 112

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

Opinion

Chancellor.

The only facts which I deem it necessary to notice, in connection with the demurfer, are these. In the year 1840, Charles S. Lee died in this State, leaving a large estate, situated partly in this State, and partly in Louisiana. The complainant took administration upon said estate, both here and in Louisiana. A number of negro slaves belonging to said estate, were sold by the order of the Probate Court of the latter State, at which sale the defendant Barker became a purchaser to the amount of upwards of twelve thousand dollars,. and gave his several promissory notes thereon, together with what, by the laws of that State, is called a special mortgage, to secure the payment of the notes. The bill states the failure of Barker to pay his several notes, and alleges that, he fraudulently removed the slaves so purchased and mortgaged, into this State, and that some of them are now in the Lands of the other defendants, who claim them by virtue of some pretended purchase from Barker, and prays that the mortgage may be enforced against the slaves, so transferred by Barker. The defendants, Scott and Dangerfield, have demurred, and have assigned different causes. The one principally relied on, is, that the bill does not allege that these defendants had any notice of the existence of the mortgage at the time of their purchase. This, I apprehend, was altogether unnecessary. It is sufficient that the complainant shows the existence of a mortgage upon the property ; his rights to enforce it will be presumed, until the contrary is shown. That a party is a bond fide purchaser, without notice, is purely a matter of defence, and must be set up by the party who would avail himself of it; whether notice be charged on the other side or not. Gallatian v. Cunningham, 8 Cow. 374. I apprehend that it is not necessary for the complainant, in such cases, to charge notice before it is denied on the other side ; but if it were otherwise, I should be inclined to regard the allegation, that the defendants hold by a pretended purchase, as equivalent to such a charge. What would be the effect of such a defence, in a case so peculiarly circumstanced as the present, is a question about which it is unnecessary to intimate any opinions in the present aspect of the case. I have no doubt, that, so far as the complainant’s title to sue is concerned, he shows sufficient to authorize him to maintain the suit in his character of administrator in this State. I have as little doubt, that Mrs. Lee is a proper party to the bill. Let the demurrer be overruled, with leave to the defendants to answer in thirty days.