George v. Solomon

Citations

• 71 Miss. 168

Syllabus

<p>1. Chancery Pleading. Decree pro confesso. Relief. Sufficiency of bill.</p> <p>Notwithstanding a decree pro confesso has been entered against a defendant, no final decree should be rendered thereon, unless the bill states a case entitling to relief. Garland v. Hull, 13 Smed. & M., 76.</p> <p>2. Same. Bill of discovery. Liability as between several.</p> <p>A bill alleged that complainant had rented a wife’s land from her husband, and paid rent to him, he claiming authority to collect it, and that, after his death, complainant also paid the same rent to the wife, who repudiated her husband’s authority; that complainant does not know whether the husband had such authority or not, but that the one or the other was liable to refund. The prayer was that the personal representatives of the husband and wife be required to show which should repay the amount, and for a personal decree accordingly. Held, that the demurrer of the personal representatives to the bill should have been sustained, it being a mere fishing bill, and not containing averments essential to fix liability on either estate.</p> <p>3. Same. Contract to supply evidence. Breach.</p> <p>The additional averment in the bill that payment to the wife was made under a written contract that complainant should propound his claim for repayment out of the husband’s estate, and that she would “ substantiate ” the fact that her husband had no authority to collect the rent, was insufficient to show liability on the wife’s estate, for no breach of the contract was averred. If the agreement meant that she was to supply sufficient evidence of the claim, there should have been an averment of a proceeding against the husband’s estate, affording her or her representative opportunity to comply with her contract.</p>