Hawkins v. Clermont

15 Mich. 511, 1867 Mich. LEXIS 47

• Court: Michigan Supreme Court
• Decided: July 9, 1867
• Status: Published

Opinion

Per Curiam.

There are two objections to the demurrer. A general demurrer will not lie, if any relief whatever is warranted by the bill. Even if this bill could not be sustained as a foreclosure bill, it nevertheless makes out a case for an injunction to restrain a threatened transfer in fraud of the unrecorded mortgage, and, therefore, can not be demurred to generally for want of equity.

But we think it a good foreclosure bill. The mortgage was given to secure the payment of the complainant’s debt, by boarding and supporting her during five years. This boarding and care are the very method of payment contemplated, and the performance of this condition is distinctly secured. Complainant had a perfect right to require it, and any failure would be a 'breach which would justify proceedings under the mortgage. Defendant had no option in the matter, and could not refuse to support complainant in the manner provided for. — Phans v. Norris, 6 Midi. 369.

The decree dismissing the bill must be reversed with .costs of both courts, the demurrer must be overruled, and defendants must answer the bill within the time fixed by the rules.