Bell v. Clark, Hood & Co.

Cooper, J., delivered the opinion of the court. The demurrer to the bill should have been sustained, and the bill dismissed. It is difficult to conceive of any interest in the controversy common to the complainants other than that of having the security of the defendants upon the lands of Mrs. Dozier canceled, and this is the specific relief prayed by the bill. That complainants were not entitled to secure this result is manifest. The utmost that Clark, Hood & Co. can claim, as against the deed of trust to Bell, is that their mortgage is prior in right, though junior in date, to his ; or, failing in this, that the decree of the chancery court in 'the case of Clark, Hood & Co. v. J. M. Dozier et al. should now be executed. They are not entitled to cancel the security of Bell, for he and they are simply creditors, having security [607] upon the same property. It is nothing to them whether the deed of trust under which Bell claims is or is not canceled if the priority they assert is allowed. Mrs. Dozier is not entitled to any relief against the defendants. She bound her lands for the payment of the debt named in the deed of trust by the deed; she bound herself by the note. Her personal liability has been discharged by lapse of time, but the death of Mr. Dozier, who-was also personally hound on the note, has preserved the liability.of his estate. The note, as to his estate, is yet alive,, and, because it is, the deed of trust upon Mrs. Dozier’s land for its security also lives. The specific relief prayed cannot be granted, and unless, under the prayer for general relief, a decree can be made in favor of the complainants, or some one of them, the bill should have been dismissed. It was formerly the rule in equity that no relief could be granted under the general prayer which was inconsistent with that specially prayed. Weymouth v. Boyer, 1 Ves. Jr., 416; Palk v. Lord Clinton, 12 Ib., 48; Walpole v. Lord Oxford, 3 Ib., 402; Grimes v. French, 2 Atk., 141; Kornegay v. Carroway, 2 Dev. Eq., 403. In modern practice the rule is more liberal, and under the general prayer any relief consistent with the bill and within its scope may be afforded, though it be inconsistent with the specific relief prayed. Dodge v. Evans, 43 Miss., 570; Mhoon v. Wilkerson, 47 Ib., 633. But the relief must yet be such as can be afforded on the facts stated, and it must appear that the defendant is fairly apprised by the bill that the relief is sought by the-complainant. Weeks v. Thrasher, 52 Miss., 142. Mrs. Dozier is entitled to no relief, and the only relief which could be afforded to Clark, Hood & Co. against the defendant would be incidental to that afforded them as against Mrs. Dozier, the mortgagor. But she is a complainant with them, and not a defendant against whom any relief is prayed. If the bill' as stated should be taken as [608] confessed, against the defendants, it is evident that no proper decree granting relief could be entered. Under such circumstances a demurrer should be sustained. Decree reversed, demurrer sustained and hill dismissed as to Mrs. Dozier, and remanded with leave to Clark, Hood § Co. to amend.