INTERLOCUTORY DECREE ON DE

This cause came on to be heard at this sitti of the defendant and was argued by counsel consideration thereof, it is ordered, adjudged demurrer be and hereby is sustained on the s therein.

And now come the plaintiffs in the above e to the Supreme Judicial Court from the inter ing the demurrer to the Bill.

THE bill prayed an account of rents and profits of certain premises; it stated the plaintiff to be entitled thereto as heir at law, and the defendant to be in possession. The bill then suggested that the defendant pretended to claim under some fine and demise, and charged that if any such existed, the testator was insane at the time; which the defendant at other times admitted, &c.

The defendant demurred.

The Court held the bill to be bad. The whole equity of the case consists in the pretences, the charges in answer to those pretences, and the admissions; there ought first to be a case averred, and then the pretences and charges are properly introduced to support it. The demurrer was allowed.2

1 It is not attempted in this chapter to present materials for a complete study of equity pleading and procedure under the classical system. The chapter deals mainly with those aspects of adjective equity which are still of large importance in those states which retain a separate equity procedure or which have been carried over to a greater or less degree into the practice of those states which have a unified procedure.

2 In Houghton v. Reynolds, 2 Hare 264 (Ch. 1843), Wigram, V. C., said (pp. 267–268): "I do not impeach the decision in Anstruther [Flint v. Field]: but that case is not an authority for the proposition, that a fact introduced by way of a charge in the bill is not as well pleaded as if it were introduced in the shape of what is technically called a statement: it merely decides that an allegation, that the Defendant sets up certain pretences, followed by a charge that the contrary of such pretences is the truth, is not of itself an allegation or averment of the facts which make up the counter statement. I have no doubt that such a form of pleading not specifically averring the facts themselves, would be defective, but there is no rule that every material fact must precede what is termed the charging part of the bill."

WRIGHT v. WRIGHT.

COURT OF CHANCERY, NEW JERSEY. 1849.

4 G. B. Halsted 143.

THE CHANCELLOR [Oliver Spencer Halsted].' It is a bill for dower; this is the substantial relief prayed. The bill anticipates that a decree for divorce, obtained by the husband, in his lifetime, will be set up as a defence; and asks dower notwithstanding that decree; alleging that it was fraudulently procured, and setting out the facts on which the allegation of fraud is founded. The complainant might have filed her bill for dower saying nothing of the decree for divorce, and left that to come up in defence. But I see no objection to framing a bill as this is framed; and I think the defence should be by plea and answer, and not by demurrer. The grounds of demurrer, therefore, which go to the matter of the bill are not well taken. As to these, the demurrer will be overruled.2

The want of prayer for process, and of signature of counsel, are defects which require amendment. As to these the demurrer is allowed.

Order accordingly.3

BAKER v. UPDIKE.

SUPREME COURT, ILLINOIS. 1895.

155 Illinois 54.

Mr. JUSTICE BAILEY delivered the opinion of the court. This was a bill in chancery, brought by Joseph S. Baker, administrator of the estate of Middleton W. Updike, deceased, against Daniel J. Updike, administrator, and Nancy J. Updike, Sylvester Updike, Elmer Updike, Bird Updike, Joanna Updike, Dora Updike and said Daniel J. Updike, the heirs-at-law of James R. Updike, deceased, to reform and correct a deed and to foreclose a mortgage.* . . .

1 A detailed summary of the bill and demurrer thereto is omitted.

2 See Freichnecht v. Meyer, 39 N. J. Eq. 551, 553–554 (1885). Compare the rule as to anticipating defenses in a declaration at law, pp. 176-177, 249-252, supra.

As to meeting by plea a defense thus anticipated in the bill, see Foley v. Hill, 3 Myl. & C. 475 (Ch. 1838).

3 As to the necessity for naming the defendant or defendants in the prayer for process, see Fawkes v. Pratt, 1 P. Wms. 593 (Ch. 1719).

4 A detailed summary of the pleadings and testimony is omitted. The plaintiff failed to prove at the trial that a mortgage had been given, but did prove a contract for the sale of the land by his intestate and the conveyance of the land to James R. Updike pursuant thereto. The lower court dismissed the bill.

But it is contended, on behalf of the complainant, that if no mortgage is established, the evidence is sufficient, at least, to show the conveyance of the land and that the purchase money remains unpaid, and therefore that the complainant is entitled to a vendor's lien, and that such lien should have been declared and enforced by the decree. To this contention it is perhaps sufficient to say that the bill is not framed upon that theory, but alleges the execution and delivery of the mortgage and its existence as a valid lien on the land, and prays for its foreclosure, and a sale of the mortgaged premises to satisfy the amount, principal and interest, due thereon. The complainant must abide by the case made by his bill, and can not make one case by his bill, and at the hearing seek to obtain relief upon a wholly different theory.

It requires no argument to show that if the allegations of the bill are true there is and can be no vendor's lien. A vendor's lien is not recognized by our statute and is entirely unknown to the common law, but has been engrafted upon the equity jurisprudence of England from the civil law. It is based upon the implied agreement between the vendor and vendee that the former shall hold a lien on the lands sold, for the payment of the purchase money. Accordingly, where the vendor, parting with the legal estate, takes security other than the personal liability of the purchaser for the payment of the purchase money, he thereby waives his lien. (Conover v. Warren, 1 Gilm. 498; Richards v. Leaming, 27 Ill. 431; Warner v. Scott, 63 id. 368; Kirkham v. Boston, 67 id. 599; Ilett v. Collins, 103 id. 74; Beal v. Harrington, 116 id. 113.) The execution of a mortgage on the land sold, thereby creating an express lien thereon, is inconsistent with and excludes the theory of an implied lien. So here, the bill, by alleging a mortgage, alleges, in effect, a waiver of an implied or vendor's lien, and excludes the possibility of the existence of such lien; and the complainant can not, on failing to prove his allegations as to a mortgage, abandon them and treat the case as though such allegations had not been made, and seek to obtain a decree upon a theory which his bill, as drawn, expressly excludes.2.

Decree affirmed.3

1 This form of lien, more properly called a grantor's lien, exists in about half of the United States. See 3 Pomeroy, Equity Jurisprudence (4th ed. 1918) § 1249. The term "vendor's lien" is more properly reserved to describe the right of one who has contracted to sell land to retain legal title until the purchase price is paid. These matters are more fully considered in the course on Equity.

2 The remainder of the opinion, dealing with other questions, is omitted.

3 See, accord, Price v. Berrington, 3 MacN. & G. 486, 498-499 (Ch. 1850) (suit for rescission, allegation of fraud, proof of insanity of plaintiff); Burk v. Johnson, 146 Fed. 209 (C. C. A. 8th, 1906) (suit for rescission, allegation of fraud, proof of mutual mistake). Cf. Levy's Estate, 273 Pa. 148 (1922). In Storm Waterproofing Corp. v. L. Sonneborn Sons, 28 F. (2d) 115 (D. Del. 1928), Morris, J., said (p. 117) : “. the plaintiff must frame his pleading