Jenkin v. McCully , 1 Morris 447 ( 1845 )

Per Cilriam,

Mason, Cnis-F Justice.

McCaliv sold a tract of land to Jenkin, giving him a-title bond and receiving a note for the purchase money. Jenkin sold the land and transferred the bond to Lyon, and Lyon transferred in the same manner to Rickey. McCully filed his bill against the three defendants to enforce a vendor’s lien. A rule was taken upon all the defendants to plead answer or demur by a particular day. Lyon demurred to the whole bill for want of equity.. The other defendants failing to comply with this rule, default was taken against them. A final decree was entered in effect against ail the de* fendants, and the land directed to be sold.

It is very questionable whether a decree could have been regularly entered up against the parties in default, while the demurrer of the other defendant, going to the whole merits of the bill, remained undisposed of. Such would certainly have been the case where one of the defendants had answered to the merits of the bill. 3 Eq. Dig. 243. The same reason would seem to apply to demurrers.

But at all events the decree was irregular and improper as against Lyon who was not in default, and his demurrer, if sustained, will prove a complete defence to Jenkin and Rickey. The decree will therefore be set aside and the case remanded to Henry county for further proceedings.