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and the railroad company filed a bill against S. B. Thomas, sheriff, and others, to enjoin the collection of said taxes. Defendants' demurrer was sustained, and a decree entered for the amount of the taxes due, etc., from which the complainant appeals.

W. P. & J. B. Harris and C. V. Gwin, for appellant. T. M. Miller, Atty. Gen., Calhoon & Green, Hooker & Wilson, Rush & Gardner, and Nugent & Me Willie, for appellees.

ARNOLD, C. J. Statutes exempting persons or property from taxation, being in derogation of the sovereign authority and of common right, are, according to all the authorities, strictly construed. As taxation is the rule, and exemption the exception, the intention to create an exemption must be expressed in clear and unambiguous terms; and it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain. Legislation, which relieves any species of property from its due proportion of the burdens of government, must be so clear that there can be neither reasonable doubt nor controversy in regard to its meaning. Cooley, Tax'n, (2d Ed.) 204; Bailey v. Magwire, 22 Wall. 215; Railroad Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. Rep. 625; Frantz v. Dobson, 64 Miss. 631, 2 South. Rep. 75. In the light of these principles, we are unable to find anything in the charter of appellant to warrant the exemption claimed in this case. It is quite plain to us that the exemption created by section 8 of appellant's charter (Acts 1882, p. 847) was intended to commence from and after the completion of a railroad to the Mississippi river, and was to continue thereafter for 20 years, if the road was completed to the river in 5 years from the date of the approval of the act, but liable to be diminished by whatever time beyond 5 years was consumed in the completion of the road to the river. At the time appellant's charter was enacted railroads in process of construction were not taxable under the general laws of the state, (Code, § 608,) and this may account for the charter providing exemption from taxation after the completion of the road, and none during the period of its construction. Affirmed.

ADAMS v. BALL et al.

(Supreme Court of Mississippi. November 12, 1888.)

1. EQUITY-JURISDICTION-ENJOINING SUIT-FRAUD.

Where defendant sold complainant's property under a deed of trust, and sued for the balance alleged to be due on the note secured by it, the chancery court has jurisdiction of a bill charging fraud in the sale, and usury in the note, and praying that the prosecution of defendant's suit be restrained.

2. INJUNCTION-PRELIMINARY-EVIDENCE-RETURN OF PROPERTY,

A preliminary injunction is proper in such case, but an order for the restoration of the property is improper.

3. SAME-DAMAGES ON BOND-FINAL HEARING.

A decree for damages on the injunction bond before final hearing is improper. Appeal from chancery court, Yazoo county; WARREN COWAN, Chancellor. Bill by James Adams against W. M. Ball and C. H. Clark. Adams bought two mules from Ball, giving his note for the price. To secure payment of the note, and to get supplies to make his crop, Adams gave a deed of trust on the mules to Clark for the benefit of Ball. But part of the note was paid, and Ball directed Clark to take possession of and sell the mules, and the latter did so. There still being a balance due Ball, he sued Adams therefor. Thereupon Adams exhibited this bill, charging that the mules were fraudulently sold at an inconvenient place, and that the note was usurious, and prayed for an injunction against the prosecution of Ball's suit. An injunction was granted, and an order was made comm inding that the mules be restored to Adams. At the hearing, Ball demurred to the bill, pleading want of jurisdiction in the chancery court to settle the controversy. The chancery court

maintained its jurisdiction, refused to dissolve the injunction, vacated the order commanding the restoration of the mules, and awarded damages on the injunction bond. Both parties appeal.

Hudson & Holt, for complainant. Hudson & Hudson, and T. H. Campbell, for defendants.

PER CURIAM. We approve and affirm the decree refusing to dissolve the injunction, and vacating the illegal order of the judge granting the injunction, for the surrender of the mules, and reverse the decree awarding damages, because the whole matter should stand over for the final hearing. Penny v. Holberg, 53 Miss. 567. That was an action at law on the injunction bond, but the views announced by the court seem to furnish the rule which we here apply.

HEBRON V. YERGER et ux.

(Supreme Court of Mississippi. November 12, 1888.)

LIMITATION OF ACTIONS-RUNNING OF STATUTE-BREACH OF WARRANTY.

Where one conveys land with warranty of title, and debts owing by him are afterwards charged on the land by decree, and the land is sold therefor, and purchased by the grantee, the grantee's right of action against the grantor for the amount paid at the latter sale accrues, and the statute of limitations begins to run, from the time of payment. He need not delay suit until confirmation of the sale. Appeal from circuit court, Hinds county; T. J. WHARTON, Judge. Action by John L. Hebron against James R. Yerger and wife. Defendants sold to plaintiff a plantation, with warranty of title; plaintiff paying the price, and taking possession. Afterwards Yerger's creditors filed a bill in the federal court to charge the land with the debts due them, and obtained a decree ordering the land to be soid therefor. A sale was made, and plaintiff purchased the land for the amount charged against it by the decree, which amount he paid to the creditors entitled to it. The commissioner did not report the sale to the court, nor was it confirmed till one year after it was made, and the money paid. This suit was brought, for the amount so paid, more than six years after the payment, but within six years from date of confirmation of the sale. Defendants pleaded the six-years statute of limitations, and their plea was sustained. Plaintiff appeals.

Brame & Alexander, for appellant. Nugent & McWillie, for appellees.

CAMPBELL, J. A right of action accrued to Hebron as soon as he discharged the incumbrance on the land, and he was not bound to wait until his purchase at the sale was confirmed, as would have been the case if his claim was based on an investiture in himself of the title of the land by his purchase. His claim is for reimbursement of money expended to discharge an incumbrance fastened on the land by the decree, and as soon as the decree was paid his right of action accrued. The form of the transaction was a purchase of the land, but the substantial thing was the discharge of a claim. Confirmation by the court of the sale was not material. No one could have objected to it, as no one was interested in it. The creditors were paid and satfied. Hebron was purchaser, and the Yergers had sold and warranted the land to Hebron, so that whether it brought little or much, or was fairly or unfairly sold, did not concern them. The real parties were those entitled by the decree to the money, and Hebron, and neither could complain of the sale of any interest in it after the money was paid and received. Therefore confirmation of the sale was not necessary, as no rights depended on it. The defense of the statute of limitations was rightly sustained. Affirmed.

Ross v. BALDWIN et al.

(Supreme Court of Mississippi. November 19, 1888.)

HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-LIABILITY OF WIFE.

Code Miss. 1880, § 1177, declaring that a husband doing business with his wife's means acts as her agent, as to persons dealing with him without notice, unless the contract between husband and wife is filed, etc., does not prevent the wife from making the agency of the husband, by her conduct, broader than that provided for by the statute.

Appeal from circuit court, Madison county; T. J. WHARTON, Judge.

Action by F. M. and O. H. Baldwin against Mary J. Ross for balance due on open account. Defendant owned a plantation, and all the stock, etc., used in its cultivation, and she and her husband lived on and cultivated it together. In 1885 the husband bought and paid for two mules with his money, and, as he and his wife testified, rented an adjoining field, called the "Jones Field," on his own account. During the year 1885 defendant and her husband made an account with plaintiffs, which was paid when due. In 1886 the husband again rented the Jones field, and he and his wife again bought supplies for the making of their crops from plaintiffs, on credit; but the husband having made a failure in the cultivation of the Jones field, a balance of the account was left unpaid. The husband stated that his wife's place and the Jones field were cultivated separately, though his chief laborer lived on his wife's place; and this laborer stated that the two places were cultivated in common. Defendant purchased two-thirds or more of the supplies sold by plaintiffs, but she alleged that she kept separate accounts of the supplies used on her place and those used in her husband's venture. Plaintiffs did not know that Ross was cultivating the Jones field on his own account, and understood that they were giving credit to his wife. Plaintiffs alleged that the goods sold to Ross were sold to him as the agent of his wife. This defendant denied, and she refused to pay the balance due, for which this action was brought. Plaintiffs asked instructions to the effect that the jury should find for plaintiffs whatever amount they believed from the evidence was shown to have been sold the defendant and her husband in good faith by plaintiffs, believing defendant to be responsible therefor, if the goods sold were such as she could be bound for under the statute. Code, 1880, § 1177. Defendant based her instructions on the statute. Verdict and judgment for the plaintiffs, and defendant appeals. Code, 1880, § 1177, provides that "it shall not be lawful for the husband to rent the wife's plantation," implements, etc., "and with them, or any of her means, to operate and carry on business in his own name, or on his own account; but all the business done with the means of the wife by the husband shall be held to be on her own account, and for her use, and by her husband as her agent and manager in business, as to all persons dealing with him without notice, unless the contract between the husband and wife, which changes this relation, shall be" in writing, acknowledged, filed, etc.

F. B. Pratt, for appellant. Smith & Powell, for appellees.

CAMPBELL, J. This case is distinguished from Porter v. State, 64 Miss. 421, 1 South. Rep. 487, by the fact that here the principal was known, and not undisclosed, as in the other case, and the credit was given to the principal, the wife. Section 1177 of the Code makes the husband the wife's agent in the state of case it mentions, and, as a wife is not under any disability to contract, she may by her conduct make the agency of her husband broader than that provided for by section 1177. She may do this expressly or by a course of dealing. In this case the plaintiffs might have asked and obtained instructions broader than those given, and those refused to the defendant are too

narrow, because they are confined to section 1177, and exclude the larger agency of the husband from the acts of the wife. The result reached is clearly right, upon the facts and law applicable, and the judgment is affirmed.

LEWIS et al. v. CLINE et al.

(Supreme Court of Mississippi. November 19, 1888.)

1. PARTNERSHIP-ACTION BY FIRM-PLEADING-NAMES OF PARTNERS.

A bill brought by a copartnership, in the firm name, is demurrable for want of certainty as to the complainants; it being necessary to allege their individual names.

2. CREDITOR'S BILL JURISDICTION-REMEDY at Law.

In Mississippi, a judgment creditor may sue in equity to remove obstructions to a fair sale of the debtor's property liable to execution, though he has not exhausted his remedy at law.

Appeal from chancery court, Lauderdale county; S. EVANS, Chancellor. Bill by Lewis & Neblett and others against J. F. Cline and others, to subject property of Cline to the satisfaction of complainants' judgments. Demurrer by defendants, which was sustained, and complainants appeal. Cochran & Cochran, for appellants. Witherspoon & Witherspoon, for appellees.

ARNOLD, C. J. The bill was demurrable for want of certainty as to the names of the complainants. Partners cannot sue or be sued in their copartnership name. It is necessary that the names of the individual members of the firm shall be alleged. Blackwell v. Reid, 41 Miss. 102.

But the record and argument of counsel show that the demurrer was sustained, and the bili dismissed, on the fourth cause assigned in the demurrer, to-wit, that the remedy at law was complete and adequate. In this there was error. Independently of section 1843 of the Code, and of the concurrent remedy at law, equity had jurisdiction. There is no room to doubt that a judgment creditor, in this state, may resort to equity, not only for the purpose of subjecting property to his judgment which cannot be reached by execution, after he has pursued the remedy at law to a return of nulla bona on his execution, but also before he has exhausted the remedy at law, in order to remove obstructions to a fair sale of property liable to his execution. Vasser v. Henderson, 40 Miss. 519; Fowler v. McCartney, 27 Miss. 509. The other causes of demurrer assigned are without merit. The decree is right, not on the ground on which it was placed, but for the cause above stated; and, there being no application in the court below to amend as to the names of the complainants, the decree is affirmed.

JEFFRIES et al. v. JEFFRIES.

(Supreme Court of Mississippi. November 26, 1888.) PLEADING-VARIANCE-AMENDMENT AT HEARING.

A bill to enjoin a sale of land under execution against one of the complainants, the other claiming by conveyance from her, and the execution creditor alleging that such conveyance was voluntary, alleged that the lands were acquired by the proceeds of a policy on the life of complainants' testator, in which complainants were both equally interested under the will. A deposition showed that the land was bought at foreclosure sale after the testator's death, and paid for by crediting it on the mortgage, which was held by testator, and in which complainants were equally interested by the will. Held, under Code Miss. § 1881, allowing amendments "on liberal terms," that an amendment, making the bill conform to the proof, should be permitted, though not asked for until the hearing; it appearing that the variance was not noticed until then, and that the deposition had been on file less than a week.

Appeal from chancery court, Noxubee county; T. B. GRAHAM, Chancellor. Bill by Kittie A. Jeffries and Mary A. Stewart, against Frances A. Jeffries, to enjoin a sale of certain land under an execution issued on a judgment held

by defendant against Mary A. Stewart. Injunction granted as to part of the land, and bill dismissed as to the balance. Both parties appeal. Bogle & Bogle, for complainants. Rives & Rives, for defendant.

COOPER, J. The real controversy between the complainants, Kittie A. Jeffries and Mary A. Stewart, and the defendant, Frances A. Jeffries, is this: These complainants hold under conveyances from Mary A. Stewart, the judgment debtor of Frances A. Jeffries, which are prima facie voluntary; wherefore the lands conveyed to them are subject to be sold for the payment of his judgment against the grantor. The complainants charge, however, that only the legal title was in the grantor, and that the beneficial or equitable interest was in them before the conveyance. Stating the history of their right, they say that James A. Stewart, their father, died testate, devising and bequeathing his estate in equal parts to his widow, Mary A. Stewart, and his children, but giving her power to sell any part of the estate, and to change its form, from time to time, as she might deem best for the interests of all parties; that as the children came of age she was directed and requested to portion them with such parts of the estate as she might think could be given off without prejudice to the support of herself and the younger children, and, when the youngest child should come of age or marry, the whole estate was to be divided. The lands conveyed to them, they say, were acquired by the investment of the proceeds of a life-policy on the life of their father, in which the widow and children were equally interested under the will. They aver that the widow took title to herself, but, recognizing the equitable rights of the children, conveyed portions of the land to them in severalty as they became of age, and that the conveyances under which they claim were in truth in execution of the will of their father, and were not donated by their mother, the grantor. The evidence developed the fact that the lands belonged to the tes tator at the time of the execution of his will, but were afterwards sold by him, and the notes of the purchaser given for the price were secured by mortgage on the land. After his death the lands were sold under foreclosure of the mortgage, and were bought in by the widow, who paid her bid by crediting the same on the debt secured by the mortgage. The facts relative to the purchase were proved by the attorney who had represented the widow in securing the sale and in acquiring the deed. This attorney is now a non-resident of this state, and his deposition disclosing the facts was filed in court only a few days before the final hearing. The cause, having been set for hearing, came on for argument, and, the chancellor having intimated that there was a variance between the averment of the bill and the proof, the complainants asked leave to amend their bill by striking out the allegation that the land had been paid for from the proceeds of the life policy, and to substitute therefor a statement in conformity with the evidence on the subject. This the chancellor declined to permit, but dismissed the bill as to the complainants without prejudice. We think the amendment should have been permitted. The Code declares that "amendments shall be allowed in the pleadings and proceedings on liberal terms, to prevent delay and injustice." Code, § 1881. It is true the application came at a late stage in the proceedings; but the record suggests that the variance had not been noticed until the chancellor remarked upon it during the argument. The deposition of the witness had been on file less than a week before the hearing was had, and in no event could the amendment have been made at an earlier term, unless an order had been obtained in vacation. The cause made by the bill as exhibited, and as it would have been by the amendment, is practically the same. The fact in real controversy was whether complainants were volunteers, or held the land by the terms of their father's will. In the one case the execution creditor must succeed; in the other, the complainants would prevail. The amendment would only serve to change a specific allegation as to what particular part of their father's estate v.5so.nos.7-9-8

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