Hamilton v. Halpin

Citations

• 68 Miss. 99

Syllabus

<p>1. Trust-Deed. Sale by trustee. Possession not necessary.</p> <p>Although a trust-deed recites that upon default in the payment of the debt secured, it shall be the duty of the trustee to take into his possession all the property and sell the same, the taking possession is not a condition precedent to the power of sale. Tyler v. Herring, 67 Miss. 169 ; Vaughn v. Powell, 65 lb. 401.</p> <p>2. Chancery Pleading. Fraud. Answer. Sufficiency of denial.</p> <p>Where a bill seeks, among other things, to cancel a trust-deed, because of fraudulent conduct of the beneficiaries in procuring its execution, and especially to •have declared invalid a sale thereunder, because of fraud on the part of the trustee and beneficiary in concealing the time of sale and in making it without public outcry, and in his answer the purchaser, claiming to have bought in good faith, expressly denies “ all knowledge, belief or suspicion of fraud practised upon complainants,” and further says that, “ if fraud there was in the sale, the respondent is wholly without knowledge of the same,” this is sufficient to prevent the charges of fraud from being taken as confessed.</p> <p>3. Chancery Court. .Privilege tax; failure to pay. Cancellation. Complainant must do equity.</p> <p>Though under the statute no suit is maintainable to collect debts due a merchant who fails to pay his privilege tax, equity will not relieve a debtor who, as complainant, seeks cancellation of a trust-deed on this ground, unless he offers to pay all that is justly due. Who seeks equity must do equity. Deans v. Robertson, 64 Miss. 195, cited.</p> <p>4. Partnership. Homestead in partnership lands. Case in judgment.</p> <p>Nine men, desiring to embark in a farming venture, purchased a plantation, executing their joint and several notes therefor, taking title to themselves jointly, each cultivating a separate portion of the land, all under an agreement that the net earnings of each should be applied to paying for the plantation, e