Bowen v. Duncan

Opinion. Campbell, J., delivered the opinion of the court: It appears that Duncan caused the property in Memphis to be sold, and bid for it $1,000 at the sale. Afterward he abandoned his purchase, but fails to show a state of case entitling him to- do so. Ilis claim is that the amount of his bid is appropriable to the payment of taxes due on the property, and that nothing is left to go as a credit on the notes, but there is in the record no evidence of taxes due on the property, or o-f other circumstances giving Duncan the right to subject the land in Mississippi notwithstanding his bid of $1,000 for the lot in Memphis. This answer is not evidence, and the only evidence he offered on this point was suppressed. It is shown that after the sale of the lot in Memphis, Bowen continued for eight months to collect rent for it as he had done before, but it is not shown that he had knowledge of the purpose of Duncan to- abandon his purchase and acquiesced in his course or in any way precluded himself from holding him to his bid. The mere receipt by Biowen of rent after the sale of the lot was not an estoppel to him to claim that Duncan’s bid should inure to the payment of the notes. We think it quite probable that a condition of things existed which made the receipt of rent by Bowen amount to acquiescence in-the course pursued by Duncan, and it is true that no- part of the $1,000 bid by Duncan will be left after paying taxes and costs, or little of it, but on the presentation by the record before us the injunction should not have been dissolved. Reversed, injunction reinstated, and cause remanded. Footnotes [1] Statements in a sworn answer directly responsive to interrogatories in a-bill are to be accepted as true unless disproved. Fulton v. Woodman, 54 Miss. 158. Where a bill to quiet title calls on defendant for discovery as to the muniments of his alleged title, an unsworn answer setting up a tax sale is not evidence thereof. Bank v. Railway Co., 72 Miss. 447, 17 So. 7. In an answer which admits the allegations of the bill, averments as to [401] affirmative matters not responsive, but by way of avoidance, are not evidence. Henee, where distributees of the estate of a wife allege that defendant, her husband, appropriated the personal estate of the wife, and has not accounted therefor, if he admits this, an averment in the answer that his wife gave him her estate, not being responsive, is not evidence. Dyer v. Williams, 62 Miss. 302; Parmele v. McGinty, 52 Miss. 483; Park v. Bamberger, 52 Miss. 565; Rodd v. Durbridge, 53 Miss. 694. See also authorities cited in the brief for appellant.