Conant v. Wareen

72 Mass. 562

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1856
• Status: Published

Opinion

_ Thomas, J.

This 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.

The bill showing good ground for relief in equity, the demurrer Is not well taken. Where there is a demurrer to the whole bill, 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.

It 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.