Bentley v. Jones , 4 How. Pr. 202 ( 1849 )

Harris, Justice.

The plaintiff having omitted to file a notice of the pendency of his suit for partition, neither the defendant, Allen, nor Zebulon Jones, can be charged with having constructive notice of that suit when they took their conveyances. They are not, therefore, to be affected by the decree in the partition suit, unless they purchased under such circumstances as would amount to actual notice of the suit and its object. Such actual notice, if alleged, is not admitted, and, for the purpose of this decision, it is to be assumed, that neither Allen nor Zebulon Jones is thus chargeable with notice. As between the plaintiff and Allen and Zebulon Jones, the plaintiff is at liberty, on the one hand, to insist that the undivided half of the mortgaged premises conveyed by the deeds executed by Silas L. Jones to Allen and Zebulon Jones, is equally chargeable with the payment of the entire amount of the mortgage. On the other hand, they are at liberty to insist that the plaintiff is in equity bound to pay one-half of the mortgage. Neither party is concluded by the decree in partition. So, also, as between themselves, Allen and Zebulon Jones may each insist that the portion of the premises conveyed to the other is ¡orimarily chargeable with the payment of that part of the mortgage which Silas L. Jones, as between him and the plaintiff, was bound to pay, or that the premises conveyed to each, are alike liable to contribute to such payment. As the case stands upon the pleadings, these, and perhaps others, are open questions which the parties have yet the right to litigate, and have determined upon equitable principles. And if this be so, it follows that Zebulon Jones is a necessary party to the litigation. Without having him before the court, no complete determination of the rights of the parties can be made. I think Allen had a right, therefore, to take the objection that Zebulon Jones should have been made a party to the action.

To avoid this objection, the plaintiff has denied that “ Zebulon Jones has any interest whatever in the mortgaged premises.” Whether he has or not is a question of law which the court is to determine, when the facts are before it. I have just had occasion to hold, in' Russell v. Clapp, that an allegation in a pleading that a party to an action is not the real party in interest, is bád upon demurrer. It is so, for the reason that the allegation does not involve a traversable fact, but merely a conclusion of law. I think the question presented by this demurrer is within the principle of that decision. "What is the issue which the plaintiff here tenders ? It is, whether or not Zebulon Jones has any interest in the mortgaged premises. To determine this, it must be ascertained whether the conveyance to him by Silas L. Jones is valid, and if it is, whether he has been legally divested of the interest thus acquired. The facts which are to be established in order to determine these questions, are the proper subjects of pleading and not the inferences which the court may derive from those facts, when properly pleaded and proved.

My conclusion is, that the defendant Allen is entitled to judgment upon the demurrer, but the plaintiff is to be at liberty to amend his reply within ten days after notice of this decision upon payment of the costs of the demurrer and subsequent proceedings.