Wilcox v. Mills

1 S. & M. 85

• Court: Mississippi Chancery Courts
• Decided: June 15, 1842
• Status: Published

Opinion

Chancellor.

William Mills and James R. M’Dowell, being jointly indebted to Wilcox, Anderson, & Co., in several sums of money, executed respectively mortgages to secure the payment thereof, the mortgage of Mills being upon land and negroes in Warren county, and the mortgage of M’Dowell upon a tract of land in Carroll county.

One of the notes secured by these mortgages having matured, the complainants filed a bill to foreclose both the mortgages, making Mills and M’Dowell defendants to the bill, and praying that the land and negroes of Mills, and the land of M’Dowell, might be sold to pay the debt.

Mills and M’Dowell demur to the bill, for multifariousness in the joinder of distinct demands and causes of action against the defendants.

The demurrer must be overruled. The mortgages were made to secure the same debt. It is true, the mortgages are separate, but the debt is joint, and is a simple obligation of both the defendants. The mortgages are but incidents to the debt. If that is discharged, they are necessarily discharged, while that exists, they can be enforced. It is the debt and mortgages that give the Court jurisdiction, and neither alone. If both mortgages had not been joined in the bill, the defendants could have compelled it. I could not permit the complainants, by two separate bills of foreclosure, to coerce the payment of a joint note, when they could effect the same object by a single bill. If, then, at the instance of the defendants, I would have compelled a union of the two mortgages in the same bill, with what propriety can that union be the source of objection ?

I see nothing in it. A complainant coming into equity must present his whole case. That has been done in this instance. The demurrer must be overruled, and the defendants allowed ten days in which to answer. '