Walker-Durr Co. v. Mitchell

52 So. 583, 97 Miss. 231

Opinion

Anderson, J.,

after stating the facts as above, delivered the opinion of the court.

The decree of the court below must be affirmed, even though the levy of the attachment writ, the replevin bond, and the judgment sought to be enjoined are void (which we do not decide). The equitable maxim that “he who seeks equity must do equity” applies. It was incumbent on Walker-Durr Company to allege in their bill and prove that they had a valid defense to the demand on which the judgment was founded. This they failed to do. It is alleged, but not proven. On the contrary, the evidence indisputably shows that they purchased from the tenant cotton raised on the leased premises of sufficient value to pay the rent, thereby under the law becoming indebted to the landlord, Mrs. Mitchell, for the amount of such rent,, which is the demand on which the judgment is founded. They will not be permitted to invoke the aid of a court of equity and at the same time withhold from Mrs. Mitchell the value of the cotton in their hands, due her for rent. Stewart v. Brooks, 62 Miss. 492; Newman v. Taylor, 69 Miss. 670, 13 South. 831.

Comenitz v. Bank, 85 Miss. 662, 38 South. 35, does not overrule the Stewart and Newman cases, supra. This question was not decided in that case.

Affirmed.