Barlow v. Brittain

Cooper, J., delivered the opinion of the court. The first instruction for the defendant should not have been given. It is said by counsel that it was asked and granted upon the authority of Black v. Robinson, 61 Miss., 54. The learned judge must have considered that decision as authority for the rule that a court of law will marshal securities wherever, under the facts proved, such coui’se would be pursued in equity. This is a misconception of the principle of that case. In Hunt v. Shackleford, 55 Miss., 94, it had been held that the beneficiary in a deed of trust for the payment of debts, who was entitled to the proceeds of the property, could interpose his claim for the money as a set-off, when sued upoil an independent cause of action by a person who had converted the property to his use. In Black v. Robinson, supra, we recognized the rule announced in Hunt v. Shackleford, but held that .the equity of the defendant might [429] be opposed by another equity of the plaintiff springing out of the same transaction. In short, that when a court of law permitted an equitable defense to be made, it would try the equity upon equitable principles. In that particular case the equity of the plaintiff' was that of marshaling securities, but the decision was rather in limitation of the rule announced in Hunt v. Shackleford than in extension of the jurisdiction of courts of law over equitable matters. It is not authority for the proposition that a court of law, trying-legal titles, can marshal securities; its extent is that, when an equitable defense is permitted at law to which the rule of marshaling securities is a reply, the countervailing equity of the plaintiff will be considered, as well as that of the defendant! The judgment is reversed.