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72 Mass. 562

Conant v. Wareen

Massachusetts Supreme Judicial Court

Decided September 15, 1856

Massachusetts Supreme Judicial Court · decided 1856-09-15

<p>A demurrer to the whole of a bill in equity must be overruled if the plaintiff is entitled to relief as to any part of the bill.</p> <p>An injunction of a sale of land under a power in a mortgage thereof may be granted on a bill which does not contain a sufficient description of the land to enable it writ of possession to issue.</p> <p>A bill in equity by a married woman to redeem land held by her to her sole and separate* use under the St. of 1845, c, 208, from a mortgage made by herself and her husband, does not, by averring that the husband, at the date of the mortgage, “ was contingently entitled to an estate as tenant by the curtesy therein,” and that he had since applied for the benefit of the insolvent law, and an assignee of his estate been appointed, show such an interest in the husband or his assignee, as to make them necessary parties to the bill.</p>

Decided 1856-09-15

_ Thomas, J.

¶1This bill, among other things, seeks to restrain the defendant from making a sale under a power of sale in a deed of mortgage. It avers a tender and offer to pay all that was due upon the mortgage, to wit, the interest, and prays for an injunction, temporary and permanent, to stay a sale for the default in its nonpayment.

¶2The bill showing good ground for relief in equity, the demurrer Is not well taken. Where there is a demurrer to the whole *564bill, if, as to any part, the plaintiff is entitled to relief or discovery, the demurrer must be overruled. Wright v. Dame, 1 Met 241. 1 Dan. Ch. Pract. 605.

¶3It does not appear that, at the time of the filing of the bill, the husband or his assignee in insolvency had, or that either of them now has, any estate in the premises. Upon this demurrer we cannot make inferences, much less conjectures. But if the inchoate right of tenancy by the curtesy was in the husband or his assignee, it is by no means clear that the plaintiff, holding this estate under the St. of 1845, c. 208, to her sole and separate use, free from the interference and control of her husband, would be compelled to make the husband or his assignee a party to the bill. See § 5. Demwrrer overruled.

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