Bass v. Nelms

Simrall, C. J.,

delivered the opinion of the court.

The questions necessary to be considered in this case are somewhat obscured by the large mass of matter in which they are encompassed.

The complainant relies upon a series of acts commenced in 1868, and terminating in 1872, with which Nelms, the defendant, is intimately connected, charged in his bill to have been conceived in fraud, and contrived to defraud him of the quarter-section of land, the subject of controversy.

Eagan sold the land to Bass in 1862, for a cash payment, and two instalments, of $255 each, at one and two years; represented by notes at ten per cent interest. It appears from an exhibit, that, in 1869, Eagan obtained a decree in *506 chancery against Bass and L. Ragan, his assignee in bankruptcy, for a sale of the land to pay the balance of the purchase-money. This decree is assailed by the complainant, because, as alleged, the summons was not served personally, nor was a copy left with his wife, as the return upon it recited; and for the further reason that Ragan did not own the notes, but had assigned them to other persons, and thereby the equity of the vendor was lost; that the suit was brought in Ragan’s name as a mere device, to give the benefit of that lien to the assignees.

Under that decree, Nelms, the defendant, bought the land, and, instead of paying the money to the commissioner, presented the notes, and had entered upon them as a credit the amount of his bid.

The complainant further alleges that, by imposition, threats, and fraud, he was induced by Nelms, in 1872, to give the notes and trust-deed which Tipler, the trustee, is about to enforce by a sale of the land.

To the relief sought by the bill, the defendant Nelms interposes several matters in bar: —

First, that Bass, in 1870, filed a bill to enjoin the decree foreclosing the vendor’s equity and to restrain a sale, in which he claimed that, at the time the decree was rendered, he had been declared a bankrupt, by reason whereof he had been absolved from the debt and lien. That injunction, on motion, was dissolved.

Nelms insists that filing the bill and obtaining the injunction released all errors in the decree, under the statute. Code 1871, sect. 1047. And, further, that Bass cannot in this suit bring forward matters to avoid that decree which were then known to him, and which were not then set up in opposition to it. He ought, also, then to .have complained that he did not have notice of the suit, and that the return on the summons was false. He ought then to have preferred the objection that Ragan was a mere nominal complainant, and was asserting a lien for assignees who had none, and whose real *507 character as owners of the notes had been fraudulently concealed from the court.

The consequence of obtaining an injunction extends no further than to release ■ errors which might be assigned to the judgment in the appellate tribunal, but does not preclude the party from assailing the judgment for matters de hors the record, — as, that the judgment was obtained by fraud.

A party will not be permitted to split up his cause of suit, and litigate one part at one time, and another in a subsequent litigation. Especially ought this rule to be enforced in suits of injunction against the execution of decrees and judgments. If there existed several reasons why the decree of 1869-should not have been enforced, it behooved Bass to have combined them all (then Jcnown to him) in the bill which he filed that year. He must then have had knowledge that the subpoena had not been left with his wife, and that the return was false; Whether he then knew that Ragan had prosecuted that suit for the benefit of the assignees of the notes, he neither affirms nor denies in the bill now before us. He ought in this bill to have explained on that point.

But was it necessary that he should have been a party to the foreclosure suit? The complainant alleged that he had been declared a bankrupt, and that L. Ragan had been appointed his assignee. The fourteenth section of the Bankrupt Law vests in the assignee of the bankrupt all the ‘ ‘ personal and real estate,” “and all property conveyed by the bankrupt in fraud of his creditors.” As of the date of his application, the bankrupt is divested of all his estate, real and personal, and choses in action, except so much as may be-exempt to him, and property held in trust and beneficially belonging to others. The title to the quarter-section of land in question, at the time this bill was filed, had passed out of Bass, and he had no interest in it, unless to claim an exempt homestead. But that claim, if it had been asserted, would have failed, because the debt was for the purchase-money. Evidently, Bass had fallen into the error that the adjudication that he was a *508 bankrupt absolved him from this debt. That was the distinct ground assumed in his bill filed in 1869. The utmost extent of his right in the land was to a homestead exemption after the payment of the purchase-money, or to any surplus after such payment. He does not now controvert the fact that he never discharged that debt in full, and that the notes which he gave to Nelms are for the balance of that debt.

It may be that the assignee in bankruptcy asserted no right to the land in the foreclosure suit, because there would be nothing left after that debt was made out of the land; or, if any thing, it would be covered by the homestead right; or, if that suit failed altogether, the land would be absorbed by the exemption.

But if Bass had satisfactorily proved that the foreclosure suit was conceived and prosecuted as a fraudulent device to set. up a lien, when none really existed, in favor of the beneficial owners of the notes, and if he were not at all embarrassed in this litigation by a failure to set up in his injunction suit of 1868 all the objections (which then existed and were known to him) to the foreclosure decree and its execution, he has condoned the frauds and covin of which he complains in this suit, by the compromise arrangement which he made with Nelms in 1872.

It is entirely competent and meritorious for a party who has been seeking redress in the courts from the consequences of the fraudulent practices of his adversary to enter into negotiations and come to a settlement with him. Although he might succeed, by prosecuting the litigation, in obtaining full relief, yet if he agrees ■ to abandon litigation, and comes upon terms of adjusting the matters in controversy, if the contract is fairly made, he is bound by it. Nor will he be permitted to reopen the matters of former difference, unless he can clearly and satisfactorily show that he was entrapped into the contract, by duress, or such fraudulent practices as will avoid it. Field v. Weir, 28 Miss. 69 ; Edwards v. Roberts, 7 Smed. & M. 555; Hanson v. Field, 41 Miss. 712 .

*509 The complainant fails to break the force of this contract of 1872. We think the weight of the testimony establishes the fact that Bass voluntarily, and with a full understanding of the subject, entered into it. Robinson, the county treasurer, was selected by the parties to write the papers. It would seem that the terms had been agreed upon before they came to his office. The amount to be paid by Bass was handed to him, stated on paper; he drew up the notes, deed of trust, and the quitclaim deed from Nelms to Bass. At first, Bass objected to that form of deed; but, on explanation by Robinson that it would pass whatever title Nelms had to the land, and that he claimed no other than such as he acquired by purchase under the decree of 1878,. Bass became satisfied. The papers were duly executed, and the deeds lodged in the clerk’s office for record. As Robinson understood the agreement, Nelms was to dismiss his suits — one to recover the land, the other the balance of the notes — and surrender his title. Bass was to give his notes for the balance of the debt, secured by a deed of trust on the lands.

Bass is proved to have been an illiterate man, but not of intellect so feeble as to be the easy victim of imposition. It has been proved that Bass and Nelms, throughout this protracted litigation, have been at enmity, and that Nelms had no influence over him.

But it is further insisted by the appellant that it was error to dismiss the bill, — that it ought to have been retained until the last day of the next succeeding term, under sect. 1048 of the Code. Commenting on the scope of the statute, in Maury v. Smith, 46 Miss. 83 , the court said it was “intended to secure to a complainant an opportunity of amending his bill, or supporting it by proof,” etc.

But where the motion to dissolve has been submitted long after the parties have come to an issue, and they have availed of full opportunity to take testimony, and have presented all the evidence that either party desired or could attain, and where the only relief sought, or that could be granted, would be to *510 perpetuate the injunction, the case, it seems to us, has been disposed of on its merits if the injunction is dissolved. The dismissal would follow as a matter of course, unless the complainant applied to have the cause retained to take further testimony, or for other good cause. Such, it seems to us, was the view of the court in Drane v. Winter, 41 Miss. 519 . The. statute was designed to give the complainant an opportunity to amend his case, or (to prove it as stated in, the bill, and to apply to reinstate the injunction. If that was not done, the bill would stand dismissed at the last day of the next term.

Bass made no suggestion that he desired to take more testimony, or make any improvement or addition to his case.

The decree is affirmed.