Cross v. Hedrick

Cooper, J., delivered the opinion of the court. The appellee is precluded of all relief sought by her on the facts stated in her bill by the lapse of time and her acquiescence in what was done by the creditor, Myrick, in securing the payment of the account as rendered by him to the appellee and her husband. The deed of trust given to secure the payment of the account to be thereafter contracted, designated both herself and her husband as parties to whom the goods were to be sold ; the accounts were kept by the merchant in their joint names, and were by him so rendered to them. No objection was then made that the debt was due by the husband alone, nor was the sale under the power in the deed prevented by resort to the courts. Having permitted the execution of the trust, she cannot, after the lapse of so many years, impeach the validity of the sale by evidence that by an arrangement between her husband and herself he was conducting business on her farm for his own exclusive benefit, by reason of which the debt secured was his debt and the security given on her other lands bound only the income and not the corpus of her estate. This point is settled by the cases of McDougal v. The People’s Bank, 62 Miss. 667 ; Walker v. Ross, 65 Miss. 523. If it be true as alleged in the bill that the goods sold were charged at exorbitant prices, that some of them were in fact never delivered and that credits to which she was entitled were omitted from the account, the reply is, that these objections should have-been made when the accounts were rendered or at least while the matter was in fieri. There is no suggestion that any of these facts [68] were concealed from her by the creditor. She must have known them then, for if they be true they were shown by the face of the accounts or were in her knowledge. With such knowledge, she submitted to the sale of the land under the deed ; was defeated in an action of replevin tried subsequently to such sale, in which it devolved on the creditor to establish the fact that there remained a balance due on the debt after credit had been given for the price of the land ; was defeated in a possessory action for the land itself, and only after the lapse of nearly nine years does she seek relief against the wrong done her. If she desired to protect her property from sale on any one of the grounds upon which she now complains, she should have tendered the sum really due, and if that had been refused as satisfaction, either to have enjoined the sale or have given notice of her purpose to contest its validity. The creditor (who became the purchaser at the trustee's sale) was bound by it and she was entitled to a credit on the account for the sum bid by him. If there were other credits which should have been previously given and were not, there was a right in her of her husband to rev cover to the extent thereof in an action at law. Having lost that right by lapse of time, she cannot revive the demand and secure an indirect recovery by annulling the sale to the end that credit may be given on the account. There is no equity in complainant's cause. Wherefore the decree is reversed and bill dismissed.