Day v. Cole

Cooley, C. J.

This case comes before the Court on demurrer to a supplemental bill of complaint. The circuit court overruled the demurrer, and the parties demurring'appealed.

The original bill was filed September 12, 1881, against a large number of defendants, the leading purpose being to obtain payment of the purchase moneys on a certain contract for the sale and conveyance of lands, made between the Blendon Lumber Company, as vendor, and the defendant Edward Cole, as vendee,- and bearing date September 1, 1866. The case on its facts was exceedingly complicated. There were two collateral contracts assigned as security for the principal contract. The members of the lumber company, which was a partnership, were all dead, and there had been transfers of interests by personal representatives and heirs. On the hearing on the original bill, the court was satisfied that all parties *296 in interest were not before the court, and had directed the case to stand over for the bringing in of other defendants. This was done by the supplemental bill, and several of the parties brought in demurred for want of equity.

1. One ground assigned for demurrer in the brief for defendants is that the bill prays for a forfeiture, which equity will not grant. Crane v. Dwyer 9 Mich. 350 ; Wing v. Railey 14 Mich. 83 . But this is not the correct view to take of the bill. It is in the nature of a bill of foreclosure, and when the rights under the contract are determined, the court will have full power to provide for the protection of all equities, and to order a sale for the satisfaction of moneys due, if necessary. Fitzhugh v. Maxwell 34 Mich. 138 .

2. Another ground of objection to the bill is that it appears thereby that complainant is not owner of the title to all the lands contracted to be sold, but a part of them are owned by the defendant Jordan, who should have been joined as complainant. But if this objection is well grounded in fact, it is not good in law as a ground for general demurrer. If all the parties in interest are before the court it is sufficient; and they are before the court, either as complainants or defendants, if the allegations of the bill are true, as the demurrer admits them to be.

3. The claim upon the contract is said to have become, by the great lapse of time, a stale claim ; but the remedy upon it does not appear, in view of the recitals in the bill of the dealings of the parties, to have become barred by the statute of limitations or any rule applied by analogy. Besides, complainant, by his bill, claims to represent the title; and lapse of time would seem to tell rather against the purchaser, who has failed to demand and obtain a conveyance, than against the seller.

4. Complainant claims his rights under the contract through an assignment by executors, whose authority was derived through a will made and probated in another state; and the assignment is said to be ineffectual, not only because made by foreign exeentors, but also because it is not shown by the’bill that the condition of the estate was such as to *297 give the executors power to sell to the exclusion of the heirs. The first ground is without merit, because it appears that letters based upon the foreign probate were issued in this State; and the second, if of any force, might perhaps be ground for special demurrer, but not for general demurrer for want of equity. Mere technical defects in the statement of the case, which might be cured by amendment if specially pointed out, will be overlooked on general demurrer, and the court will examine the bill only so far as to see that the substance of a good case is set out, even though it be inartificially, or with technical faults and deficiencies. Clark v. Davis Har. Ch. 227; Farwell v. Johnston 34 Mich. 342 . The general demurrer challenges the equities, and not faults of pleading merely.

The order overruling the demurrer is afiirmed, and the record remanded, with leave to answer under the rules.

Campbell and Sherwood, JJ. concurred. Champlin, J. did not sit in this case.