Carter v. Longworth

4 Ohio 351 | Ohio | 1829

By the Court :

If the defendants are bound to answer any part of the bill, the demurrer, being entire to the whole bill, must be overruled. A demurrer, bad in part, is bad in toto. 1 Ves. 248; 1 Atk. 450; 2 Atk. 44; Mad. Ch. 226; 1 Johns. Ch. 51; 5 Johns. Ch. 186. ^(a)

*The main question intended to be presented by the demurrer, whether a scire facias binds subsequent incumbrances, need not be determined. The bill charges “ a fraudulent concealment of title, while the complainant was making improvement.” A demurrer to such charge of fraud is bad. In the case of Higingbothem v. Burnet, 5 Johns. Ch. 184, the bill charged that the party in interest stood by and saw great and costly improvements made upon the land, by persons claiming and believing themselves to be owners in fee, and never interposed any pretension of right or title. There was a demurrer to the whole bill, which was overruled, because the charge amounted to an imposition and fraud. Here the charge of fraud is direct and positive, and must be met otherwise than by a demurrer.

Demurrer overruled.

(a) Contra, 2 Bibb, 484.