Spears v. Cheatham

Citations

• 44 Miss. 64

Syllabus

<p>1. Bill or disooveby — Insufficient allegations — Seevice of pbooess — Pbo-oonfesso — Chanoeby pbactioe_Defendant in error liad judgment at law against S., for $3,600. She filed hor bill against plaintiffs in error to subject to the satisfaction of her judgment, certain land specified in the bill. “ Complainant is informed and believes that Saunders (who is insolvent) purchased from King Prather and paid for the land, but no deed therefor is of record. Complainant has been informed and believes that Rebecca Spears has been paying taxes on the land, and claiming to have the right and title thereto; is informed and believes that Saunders procured a conveyance of the lands to be made to said Rebecca, alleging that the same is fraudulent, and intended to hinder and delay creditors. If mistaken in this, and - the title still remains in Prather, a trust results to her use, and his equitable interest is subject to the lien of her judgment. The prayer is, that the title, if in Mrs. Spears, or remaining in Prather, be displaced and the land subjected to the judgment. Decree pro confesso, was taken against all tho defendants; against Spears and Saunders, on personal service of subpoena, and Prather on publication of notice. Held: That Prather was a necessary party to the proceedings; that the allegations do not disclose where the cloud of title rested; that the allegations do not. mako out a sufficient ground for the relief sought, according to the settled rules of law and equity — tho neglect to answer amounting to nothing more than an admission of those allegations, and which cannot be broader than the allegations themselves ; and that a final decree of relief upon such pro confesso was erroneous, and must be set aside.</p> <p>2. Chahoeby Practice_Upon a decree pro confesso, all the facts sufficiently' stated, are to be taken as true to the same extent as if established by the evidence against the denial of the defendant; but the complainant can have only such relief as