Kimbrough v. Curtis

Citations

• 50 Miss. 117

Syllabus

<p>1. Chancery Practice — Amendments to Bills. — The practice in this state, under the liberal rules of amendments of pleadings authorized by statutes, is to entrust to the courts of original jurisdiction a very large discretion over the pleadings. It is no abuse of that discretion to allow a defendant to withdraw an answer and put in a demurrer to the bill, especially if the bill does not state a title to the discovery and relief sought.</p> <p>2. Same — Contract — Mutual and Dependent. —Where a conveyance is to be made upon payment of the purchase money, the respective acts are dependent and neither party can insist upon the performance of the thing stipulated to be done by the other without performance or an offer to perform upon his part. A mere allegation in the bill of an offer and readiness to make a deed will not do. JClyce v. Broyles, 37 Miss. Bep. 524. Bobinson v. Harbour, 42 Miss., 800.</p> <p>3. Same — Necessary Parties, etc. — Where the administrator of the vendor is the complainant, asserting against the assignee of the vendee, the security held by him for the debt, the heirs of the vendor are necessary parties, so that their title may be divested. That must be so unless the administrator tenders a proper deed from the heirs.</p> <p>4. Samb — Remedy inEquity op the Assignee op a Note. — The assignee of a note for the purchase money can maintain a bill against the vendor and vendee or their respective representatives, to enforce the lien and for specific performance of the contract of sale, and it is no objection to the bill that a deed was not tendered, for the title did not reside in the complainant and he could only reap the benefit of his equity by demanding that the parties to the contract of sale shall be held to the performance of their respective covenants.</p>