Hester v. Thomson , 58 Miss. 108 ( 1880 )

Campbell, J.,

delivered the opinion of the court.

In order to ascertain the amount due Mrs. Hester, it was proper to inquire how much she had received of what was due her from her husband; and although the bill contains no averment or prayer on which to base such accounting, it was rendered necessary by the course of the litigation resulting from the claim asserted by Mrs. Hester in her answer.

The rules by which courts of equity adjust the rights of parties in cases like this are variant, and seem to depend .on the peculiar circumstances of each case, the principle being that justice shall be done according to the view taken of the relative positions and rights of the pai’ties. In the language of the Supreme Court of the United States, speaking of the ■different modes adopted by courts of law and courts of chancery in dealing with fraudulent conveyances, “ When the proceeding is in chancery, the jurisdiction exercised is more flexible and tolerant. The equity appealed to, while it scans' the transaction with the severest scrutiny, looks at all the facts, and, giving to each one its due weight, deals with the ■subject before it according to its own ideas of right and justice. In some instances it visits the buyer with the same consequences which would have followed at law ; [which are stated, in the opinion quoted from, to be a loss of the property by the buyer, without reference to the amount or application of what he has paid, and without a relief for him, either at law ■or in equity] in others, it allows a security to stand for the amount advanced upon it; in others, it compels the buyer to account only for the difference between the under price, which he paid, and the value of the property; in others, although he may have paid the full value, and the property may have passed beyond the reach of the process of the court, it regards him as a trustee, and charges him accordingly. Where he has honestly applied, the property to the liabilities of the seller, it may hold him excused from further responsibility. The cardinal principle in all such cases is, that the property of the debtor shall uofi be diverted from the payment of his debts, to the injury of his creditors, by means of the fraud.” Clements v. Moore, 6 Wall. 299.

We approve the foregoing view, notwithstanding what is said in the opinion in Bernheim & Co. v. Beer, 56 Miss. 149, upon a question not involved in the case. Bump’s Fr. Conv. 588 et seq.

After careful examination of the voluminous record, we find in it no error against Mrs. Hester, except as to an item of $90, committed in stating a sum due her; but it does not affect the result. No decree has been made against her, and she is not entitled to anything out of the land as against her adversaries in this suit.

Decree affirmed.