Wood v. Myer , 98 Miss. 603 ( 1910 )

Anderson, J.,

delivered the opinion of the court.

Appellee Mrs. Alice Lee Myer, as -administratrix for her husband, J. P. Myer, and D. F. Taylor, trustee in a deed of trust executed by appellants, C. J. Wood and his wife, P. J. Wood, in favor of said decedent, J. P. Myer, filed a bill in the chancery court against the appellees to reform said deed of trust, and foreclose it as reformed. Appellants answered the bill, making their answer a cross bill, to which appellees demurred, which demurrer the court sustained, rendering a decree granting appellees the relief prayed for in their bill, from which appellants appeal.

The bill alleges substantially the following facts: That appellants were indebted to J. P. Myer in the sum of nine hundred and eighty-six dollars, and on the 7th of March, 1907, executed their note to him for that amount, due October 1, 1907, and . a • deed of trust to the appellee Taylor as trustee to secure the same on their land,- the N. W. % of the N. E. % of section 9, township 8, range 12; that by mistake of the parties the land was described as N. W. W of N. E. % of section 9, township 8, range 11, which was not owned by appellants; that the note so secured was overdue, nothing having been paid on it. <

Appellants in their answer and cross bill do not deny the alleged mistake in the description of the land, bnt do deny that they are indebted to the estate of J. B. Myer in the amount claimed in the bill; and set up these facts: That they are both ignorant and unlettered; that at the time of the execution of the note and deed of trust in question they were informed by the justice of the peace, who came to them representing Myer, and who induced their execution, and took the acknowledgments, that the amount of the note was only three hundred and fifty dollars, and they signed them with that understanding, but insisting that even that amount was more than they justly owed, in response to which the .justice of the peace stated that Myer would correct any mistake; that whatever sum they were due Myer when the note was executed was for balance due on accounts for merchandise covering a period of several years; that it was impossible for appellants to state what they were actually due, because they .never had been able to procure from Myer, though they had often requested it, itemized statements of their accounts, showing the debits and credits; that an account, not itemized, had been furnished them since this suit begun, which itself shows that they did not owe the amount claimed by appellants; that the accounts which were merged into the note contain charges of usurious interest. The prayer is that appellants produce an itemized statement of' their account, that all improper charges be stricken from it, and that it be purged of all usury, etc.

The court below erred in sustaining the demurrer to the cross bill, and decreeing the relief asked for by appellees. The cross bill should have been answered, and the case heard on proof. Though the "matters of defense relied on are not as definitely set out in the answer and cross bill as they might be, there is sufficient excuse shown for not so doing; the facts being more within the knowledge of appellees than appellants.

Reversed and remanded.