By the Court,
CoLR, J.
The first question presented for our consideration in this case, is one of practice. It is insisted by the counsel for the appellant, that the Circuit Court erred in proceeding to a hearing of the case upon the merits before the demurrer had been disposed of, and section 20, chapter 84 of the Revised Statutes, is relied upon to sustain this position. That section provides that, “If the defendant file a demurrer and answer, the complainant shall not proceed on the answer till the demurrer has been argued or disposed of.” It is a very familiar rule, we suppose, of chancery practice, that a defendant may demur to one part of a bill and plead and answer to other parts ; and this section requires that when a party does that, the demurrer shall be heard and determined before proceeding to a hearing of the case upon the merits. But we cannot see that this provision of the statute can have any application whatever to this case. Here the appellant Bell answered fully the bill, and in the answer raising some objections to the frame of the bill, and the sufficiency of the allegations therein contained, claims the same benefit from them as though he had demurred to the bill. Now, it must be perfectly obvious that the court could only consider these objections upon the hearing of the cause. If the appellant Bell had desired to take the judgment of the court upon any part of the bill, he should have put in a demurrer extending to that part, and answered to the other parts; [59]*59and then the provision of the statute above cited would have applied to this case; but now it is otherwise.
An objection is-taken to the bill, that it is defective for want of proper parties.
It is insisted that Slauson was a necessary party to the suit; 1st, because he signed the contract, a specific performance of which is sought to be enforced; and 2d, that without his being before the court, the avails of what is mentioned in the bill as having been trust property, might not be disposed of as equity would require, for the use and benefit of. Mrs. Norris, the cestui que trust. In reference to the first objection, it is answered that, at the time the contract was made and entered into, Slauson had no interest whatever in the premises to be conveyed, either equitable or legal; that he signed the same under a misapprehension, supposing the title was still in him, as it once had been, but that were it otherwise, and had he some kind of interest in the premises to be conveyed, and that the complainant might refuse to accept the deed unless executed by him with the other parties. Still, inasmuch as the complainant is willing to accept the deed made by Norris and wife, and relinquish all claim, if any he has, upon the contract against Slauson, that he ought to Rave the relief he prays for: in other words, that it is perfectly competent for him to accept less than he would be entitled to receive by a strict performance of the contract, while he makes full performance upon his part. This, it seems to us, he lias a perfect right to do. We suppose -it to be well settled that an objection at-the hearing, for want of a particular party, may be obviated by the complainant’s waiving' the relief he is entitled to against such” party, providing the rights of others are not prejudiced by it. Paulet vs. The Bishop of London, 2 Atk. 296; 1 Barb. Ch. Prac. 321. It appears .to be a clear and incontestable proposition, that if the complainant is content with the performance of this contract by Norris and wife, waiving all right to insist upon Slauson’s signing the deed, hé ought to be permitted to do so. He thus elects to abide.by a partial performance upon their part, although making a full performance upon his. The Attorney-General vs. Gower, 1 Ves. 218; Waters vs. Trovis, 9 J. R. 465; Story Eq. Jurs., § 779.
Neither can we see that it was necessary to make Slauson a [60]*60party in order to protect the rights of Mrs. Norris. The testimony in the case shows that the property was conveyed to Slau-son, by Norris, in trust for his wife, on the 12th of August, 1850. The consideration mentioned in ’the deed, is love and affection. It also appears that Slauson reconveyed the property to Norris on the 11th of June, 1851, and that this deed of conveyance was put upon record that day. It is hardly probable that Mrs. Norris was ignorant of this last conveyance, or that it was made without her consent. We presume she was fully cognizant of it, and we are greatly confirmed in this supposition by the circumstance that she and Norris on the same day executed the mortgage to Cram. We think it fair to presume that the property was conveyed by Slauson to Norris, at this time, with the full understanding of all parties,- for the purpose of making a loan of Cram-and giving the requisite security. But however this may be, whether this conveyance was made with or without the knowledge of Mrs. Norris, it is not sufficient that she who alone is interested in the proper disposition of this fund — if it be the avails of trust property-r-is now before the court? Had she made a separate answer to the bill, as she would, upon proper application to the court, have been permitted to do, setting up a claim to -this purchase money, hostile to the claim of her husband, and shown that she was fairly entitled to it, there would be no difficulty in securing it to her sole and exclusive enjoyment. But this she has not seen fit to do. Both she and her husband have Jet the bill be taken as confessed, so that in whatever aspect we consider the case, we cannot see that Slauson was a necessary party to the suit.
Another objection taken to the bill is, that there is no allegation or proof that the complainant ever paid the mortgage to the state, or paid or tendered payment to Slauson the purchase money of the premises or the sureties therefor. The bill alleges, with all necessary certainty, that the notes described therein, were tendered to Norris, and this allegation is fully sustained by the proof. Indeed, under the circumstances of the case, it is very questionable whether any tender was necessary, for the twofold reason that, in the most favorable view that can be taken of this contract for the defendant Norris, it appears to be as much his duty to tender the complainant a deed executed according to [61]*61its terms, as it was that of Bull to tender the notes and mortgage; a'nd further, bj conveying the property to Miller, Norris had placed dt out of his power either to perform his part of the contract or to insist upon its performance by the complainant. The complainant avers his readiness now to perform upon his part, and whether a proper tender was made before the bill was filed, in any event could only affect the question of costs. Furthermore, we think that if any tender was necessary, that the one made was sufficient. The notes were'made payable to the order of. Slauson, in strict and literal conformity to the contract, and tendered to Norris, since it had been ascertained that Slauson had no earthly interest' in the matter.
The counsel for the appellant indulged in a good deal of in-' genious and refined criticism in endeavoring to show that the contract set forth in the bill was too ambiguous and uncertain in its terms to be enforced. Perhaps it is not drawn with as much fullness and legal precision as it might have been, and yet there is no difficulty whatever in arriving at the meaning and intention of the parties who made it.
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By the Court,
CoLR, J.
The first question presented for our consideration in this case, is one of practice. It is insisted by the counsel for the appellant, that the Circuit Court erred in proceeding to a hearing of the case upon the merits before the demurrer had been disposed of, and section 20, chapter 84 of the Revised Statutes, is relied upon to sustain this position. That section provides that, “If the defendant file a demurrer and answer, the complainant shall not proceed on the answer till the demurrer has been argued or disposed of.” It is a very familiar rule, we suppose, of chancery practice, that a defendant may demur to one part of a bill and plead and answer to other parts ; and this section requires that when a party does that, the demurrer shall be heard and determined before proceeding to a hearing of the case upon the merits. But we cannot see that this provision of the statute can have any application whatever to this case. Here the appellant Bell answered fully the bill, and in the answer raising some objections to the frame of the bill, and the sufficiency of the allegations therein contained, claims the same benefit from them as though he had demurred to the bill. Now, it must be perfectly obvious that the court could only consider these objections upon the hearing of the cause. If the appellant Bell had desired to take the judgment of the court upon any part of the bill, he should have put in a demurrer extending to that part, and answered to the other parts; [59]*59and then the provision of the statute above cited would have applied to this case; but now it is otherwise.
An objection is-taken to the bill, that it is defective for want of proper parties.
It is insisted that Slauson was a necessary party to the suit; 1st, because he signed the contract, a specific performance of which is sought to be enforced; and 2d, that without his being before the court, the avails of what is mentioned in the bill as having been trust property, might not be disposed of as equity would require, for the use and benefit of. Mrs. Norris, the cestui que trust. In reference to the first objection, it is answered that, at the time the contract was made and entered into, Slauson had no interest whatever in the premises to be conveyed, either equitable or legal; that he signed the same under a misapprehension, supposing the title was still in him, as it once had been, but that were it otherwise, and had he some kind of interest in the premises to be conveyed, and that the complainant might refuse to accept the deed unless executed by him with the other parties. Still, inasmuch as the complainant is willing to accept the deed made by Norris and wife, and relinquish all claim, if any he has, upon the contract against Slauson, that he ought to Rave the relief he prays for: in other words, that it is perfectly competent for him to accept less than he would be entitled to receive by a strict performance of the contract, while he makes full performance upon his part. This, it seems to us, he lias a perfect right to do. We suppose -it to be well settled that an objection at-the hearing, for want of a particular party, may be obviated by the complainant’s waiving' the relief he is entitled to against such” party, providing the rights of others are not prejudiced by it. Paulet vs. The Bishop of London, 2 Atk. 296; 1 Barb. Ch. Prac. 321. It appears .to be a clear and incontestable proposition, that if the complainant is content with the performance of this contract by Norris and wife, waiving all right to insist upon Slauson’s signing the deed, hé ought to be permitted to do so. He thus elects to abide.by a partial performance upon their part, although making a full performance upon his. The Attorney-General vs. Gower, 1 Ves. 218; Waters vs. Trovis, 9 J. R. 465; Story Eq. Jurs., § 779.
Neither can we see that it was necessary to make Slauson a [60]*60party in order to protect the rights of Mrs. Norris. The testimony in the case shows that the property was conveyed to Slau-son, by Norris, in trust for his wife, on the 12th of August, 1850. The consideration mentioned in ’the deed, is love and affection. It also appears that Slauson reconveyed the property to Norris on the 11th of June, 1851, and that this deed of conveyance was put upon record that day. It is hardly probable that Mrs. Norris was ignorant of this last conveyance, or that it was made without her consent. We presume she was fully cognizant of it, and we are greatly confirmed in this supposition by the circumstance that she and Norris on the same day executed the mortgage to Cram. We think it fair to presume that the property was conveyed by Slauson to Norris, at this time, with the full understanding of all parties,- for the purpose of making a loan of Cram-and giving the requisite security. But however this may be, whether this conveyance was made with or without the knowledge of Mrs. Norris, it is not sufficient that she who alone is interested in the proper disposition of this fund — if it be the avails of trust property-r-is now before the court? Had she made a separate answer to the bill, as she would, upon proper application to the court, have been permitted to do, setting up a claim to -this purchase money, hostile to the claim of her husband, and shown that she was fairly entitled to it, there would be no difficulty in securing it to her sole and exclusive enjoyment. But this she has not seen fit to do. Both she and her husband have Jet the bill be taken as confessed, so that in whatever aspect we consider the case, we cannot see that Slauson was a necessary party to the suit.
Another objection taken to the bill is, that there is no allegation or proof that the complainant ever paid the mortgage to the state, or paid or tendered payment to Slauson the purchase money of the premises or the sureties therefor. The bill alleges, with all necessary certainty, that the notes described therein, were tendered to Norris, and this allegation is fully sustained by the proof. Indeed, under the circumstances of the case, it is very questionable whether any tender was necessary, for the twofold reason that, in the most favorable view that can be taken of this contract for the defendant Norris, it appears to be as much his duty to tender the complainant a deed executed according to [61]*61its terms, as it was that of Bull to tender the notes and mortgage; a'nd further, bj conveying the property to Miller, Norris had placed dt out of his power either to perform his part of the contract or to insist upon its performance by the complainant. The complainant avers his readiness now to perform upon his part, and whether a proper tender was made before the bill was filed, in any event could only affect the question of costs. Furthermore, we think that if any tender was necessary, that the one made was sufficient. The notes were'made payable to the order of. Slauson, in strict and literal conformity to the contract, and tendered to Norris, since it had been ascertained that Slauson had no earthly interest' in the matter.
The counsel for the appellant indulged in a good deal of in-' genious and refined criticism in endeavoring to show that the contract set forth in the bill was too ambiguous and uncertain in its terms to be enforced. Perhaps it is not drawn with as much fullness and legal precision as it might have been, and yet there is no difficulty whatever in arriving at the meaning and intention of the parties who made it. Will any one seriously pretend that upon a fair and reasonable construction of the language o'f this contract, that it is unintelligible or doubtful as to what the parties meant by it ? Is not the land to be conveyed described with all convenient certainty ? And is there any room for doubt as to the terms upon which the sale was made? It seems that Norris and wife understood the contract in the same way that the complainant does, and proceeded to execute the deed according to its conditions. We think that the contract is sufficiently clear and .explicit, that there can be no mistake about the intention of the parties who made it, and that it is equitable and just that it should be enforced against the defendants Norris and wife. It therefore remains to be considered whether it should be as against Miller'and Bell, and whether they have established their defence of being innocent purchasers for valuable consideration without notice. This is the defence which they set up in their answers, which are not sworn to. And first, how does the case stand as to Miller ? Can he be protected as a bona fide purchaser for valuable consideration without notice? We think that he cannot. The contract for the sale of the property was made on the 9 th of May, 1853. It appears that the complainant [62]*62went into possession of the property some time that month, and rented the property to Hicoelc. He also exercised other acts of ownership over it, by building some picket-fence and removing some manure from the barn. Miller’s store was about fifteen rods from the premises, and in passing to it from the house, the. nearest way was by them. Now, it is incredible to suppose that MiJJer could have remained in ignorance of the complainant’s possession, and of these various acts of ownership exercised over the property, and under his very eyes, until he purchased on the 29th of September following. ‘From these circumstances alone we should be warranted in concluding that he had notice of complainant’s rights. But that is not all. The witness Patte testifies that he conversed several times with Miller about Bull’s purchase. , Prom this it appears that he had full and actual notice of the complainant’s rights, and can in no sense of the word be considered au innocent purchaser without notice.
The same observations in reference to Miller’s having notice of the complainant’s rights apply with almost equal force to Bell. He lived within forty or fifty rods of the premises during the summer of 1853 ; and his place of business was about the Same distance from them. He must have known of the complainant’s possession. Besides, Wetherel swears that he was present at a conversation between Bell and the complainant, when the latter’asked the former what lie thought about his purchase of this property, and Miller’s coming in and taking it. And Bell replied that he considered it a shabby action. The witness might have been, and probably was mistaken as to when this conversation occurred, but he could not have been mistaken about the fact of there being such a conversation. He swears positively to it; and if it was not so, he very well knew it, and he was guilty of wilful perjury. We can discover no possible motive for him to commit such a crime. Another circumstance not to be overlooked, is the fact that the deed from Miller to Bell according to its date, was made while a former suit was pending between the complainant and Norris and Miller, for the enforcement of this contract, and placed upon record the day that suit was dismissed. We have no doubt but Miller and Bell took their respective deeds with full knowledge of the rights of [63]*63the complainant, and consequently they should be set aside as fraudulent and void as against him.
We are unable to approve in all respects of .the decree rendered in the court below. Why should the complainant be exonerated from, paying interest upon the purchase money according to the terms of the contract? 'That contract is very definite as to when the interest should commence, and the rate per cent. It would seem equitable and just that the complainant pay it as agreed upon. Moreover, we do not think it right to permit the complainant .to pay to Butterfield the sixty-nine dollars out of the purchase money. Why should he do that? Butterfield acted as the agent of Norris in making the sale. Let him settle with him then for his services. The Cram mortgage should be discharged out of the purchase money, and also the judgments mentioned in the bill.
The surplus, if any there shall be after discharging these liens, should be paid over to Bell. If Norris and wife had appealed, and their interests were before us for our consideration, we might and probably should have required the complainant to either pay off the mortgage to the state, or secure Norris and wife from all personal obligation accompanying that mortgage, if any such exists. .The deed left with Butterfield to be delivered to ■complainant, and decreed to be a valid deed to convey all the interest which Norris and wife had in the premises at the time the contract was made.-
The cause will have to be remanded to the Circuit Court for the purpose of ascertaining of said liens, and for discharging them, and for a final decree according to law.