128 Mass. 466 | Mass. | 1880
The single point argued in support of the demurrer is that the declaration seeks to charge the defendants jointly instead of severally. But the deed which they have accepted is to them as tenants in common, and the description of the proportions in which they are to take does not affect their joint liability upon their promise therein stated. The demurrer of the defendant Lord was therefore rightly overruled, and for the same reason the third and fourth rulings requested by the other defendants were rightly refused.
The sale of the land to the plaintiff, under the power con tained in the mortgage, for less than the amount of the mortgage debt, did not satisfy or extinguish the whole of that debt. The plaintiff having been held to account for- the sum bid by her at that sale, and having been allowed to recover this surplus only, the defendants have not been prejudiced by her neglect to complete the purchase, or by the refusal to give the fifth ruling requested. Hood v. Adams, 124 Mass. 481, and ante, 207.
The only other objection argued is that stated in the first and second rulings requested, namely, that this action is brought by the plaintiff alone, without joining her husband. It is true that the deed to the defendants, having been executed by both husband and wife as grantors, conveying his right by the curtesy, as well as her title, the promise implied by law from the acceptance of the deed was to both, and this action should have been brought in the names of both, and not in that of the wife alone. Mellen v. Whipple, 1 Gray, 317. Prentice v. Brimhall, 123 Mass. 291. But as the merits of the case appear to have been fully tried, the plaintiff should be allowed to amend by joining her husband, taking no costs since the trial. Gen. Sts. c. .129, § 41. Whitney v. Houghton, 127 Mass. 527, and cases cited.
The proper entry therefore is that, upon such amendment being made in the Superior Court, the demurrer and the exceptions be overruled, and there be
Judgment for the plaintiffs.