Bush v. Vail , 2 Miss. Dec. 519 ( 1881 )

Opinion.

Campbell, C. J.:

If Bush obtained the chose in action of Mrs. Vail by means which constitute him her debtor therefor,^ she should have stated the facts out of which her right and his liability arose definitely and clearly. She has not done this. The allegations of her bill must be taken most strongly against her, and it is apparent that the failure of her husband to pay for the land, and its loss to him by the sale to pay Bush, suggested the claim of appellee to recover from Bush her means improvidently devoted by her to the partial payment of her husband’s indebtedness for the purchase • money of the land. If Bush perpetrated a fraud on appellee, whereby he obtained her means for the debt of her husband, it should be precisely charged — not by a general allegation that he obtained it by fraudulent means, but by a specific statement of the fraudulent acts done, so that he might meet the precise charge by a specific answer. The only specific statement of the bill on this subject is that Bush induced appellee to devote her separate estate to the partial payment of her husband’s indebtedness for the land, by representing to ber that by ber paying in part for tbe land conveyed to ber bnsband sbe would acquire an interest pro tanto in tbe land. There was no fraud in tbis, and calling it fraudulent in tbe bill does not make it such. There is no intimation in tbe bill that Bush agreed to relinquish any right of bis, with respect to tbe law, in favor of appellee, or that he guaranteed to ber any interest in tbe land as an inducement to ber to part with her claim on Blakely as a partial payment of ber husband’s debt. Tbe extent of tbe charge is, that Bush misrepresented to ber tbe consequence to ber of devoting ber estate to tbe partial payment for tbe land. But there was no misrepresentation, for if tbe land bad been fully paid for and secured to ber husband, Mrs. Vail would have been entitled to an interest in it to tbe extent that it was paid for by ber money.

Decree reversed, demurrer sustained, and bill dismissed.