Wofford v. Ashcraft

Citations

• 47 Miss. 641

Syllabus

<p>1. Covenants of title — insolvency of vendor — eviction.—Equity -will not relieve a purchaser, in possession under warranty deed, from payment of the purchase money in the absence of fraud, on the ground of defect of title, unless there has been an eviction, or unless the covenants of title afford no indemnity by reason of the insolvency of the vendor.</p> <p>2. Equity — partial failure of consideration. — In equity, where the insolvency of the vendor is proven, an incumbrance should be treated as a failure of consideration, pro tanto, and the purchaser allowed a reduction therefor from the purchase money.</p> <p>3. Pleading — proof.—The burden of proving all affirmative allegations in an answer devolves upon the respondent.</p> <p>4. Decree. — Where the complainant held notes as collateral security for a debt due from the appellants, it was error to direct the payment of the full amount of the notes to him; the surplus, after paying the debt, should have been decreed to be paid directly to appellants.</p> <p>5. Practice — order of reference. — When a cause is referred to a master to state an account of the value of personal property, he should be instructed to take testimony on the question of value, or the testimony may be taken before the cause is referred.</p>