Bennett v. Rowland

Opinion. Campbell, C. <T., delivered the opinion of the court. The insuperable difficulty in the way of Mr. Thurmond in maintaining his defense is that the deed of trust executed by Bennett and on which Thurmond’s claim as a bona fide purchaser rests, was not valid because not signed by Bennett’s wife, and the subsequent signing of the deed by her, after the institution of this suit, did not have the effect to validate the incumbrance as against the complainants in the bill. Until signed by the wife the deed was not valid. When it was signed by her the suit was pending, and the right of Thurmond is subordinate to that of the complainants. There could not be a decree in favor of Thurmond for any excess arising from the sale of the land after paying complainants, because his answer was merely defensive to the bill, and was not made a cross-bill against his codefendant, Bennett, who had no opportunity to contest with him as to the deed of trust. If the bill had set forth the claim of Thurmond by virtue of the deed of trust, so that a decree between the defendants “ grounded upon the pleadings and proofs between the complainants and the defendants ” might be made, it might have been proper to have considered the right of Thurmond as against Bennett, “ but where the claim of one codefendant against another does not result from the recovery of the demand of the complainant against one - or both * * * the right of one codefendant to a decree against his codefendant in that suit,” cannot be justified. Arnold v. Miller, 26 Miss. 152. The equities between codefendants may be adjusted without a cross-bill by one against the other in certain kinds of cases, but this is not one in which a decree between the codefendants would be proper. As the claim of Thurmond is not set forth in the bill, and he did not make Bennett a defendant to his assertion of right under the-trust deed, no opportunity was afforded for any contest by Bennett with respect to the trust deed, and the-chancellor did right not to make a decree as between the co-defendants. We find no error in the decree, and it is, therefore, affirmed.