Harper v. Lacey

Cooper, J., delivered the opinion of the court. By his bill complainant charges that Harper and Moore entered into a joint bond for title, conditioned to make a conveyance of the land upon the payment of the whole purchase-money, one-half of it to Harper and one-half to Moore. The only averment as to payment is that the one-half of the purchase-money due to Harper had been paid. If a pro confesso had been taken on the bill the complainant would not have been entitled to a final decree thereon, for the conveyance was to be made only upon the payment of all the [8] money. It is true the proof shows that as a matter of fact the sum due to Moore had also been paid previous to the institution of the suit, but there is no allegation in the pleading on which the evidence can be introduced. Carter v. Lyman, 33 Miss. 171; Chaffe v. Taliafero, 58 Miss. 544; Daniel’s Chancery, vol. 1, 361. When the case returns to the lower court the complainant can amend the bill by making Moore a defendant, and by inserting an averment that all the purchase-money had been paid. The objection to the testimony of the complainant is not well founded. The statute prohibiting a party in interest from delivering testimony to establish his own claim against the estate of a decedent was not intended to abrogate the common-law rule that a party in interest may testify to the loss of an instrument to lay the foundation for the introduction of secondary evidence of its contents. The proof abundantly sustains the complainant’s right to the relief granted. Decree reversed.