Kane v. Laughlin

Opinion by

Mr. Chief Justice Sterrett,

The only specification of error in this case is that, “The learned court below erred in sustaining the demurrer and dismissing the bill.”

The bill avers in substance that the plaintiff, being indebted to the defendant in about the sum of $2,750, transferred to him certain real and personal estate and two judgments as collateral security; that the defendant realized $4,000 from the personal property, and is largely overpaid; that he still holds the real estate and the judgments, and refuses to render any account; that a written agreement signed by the defendant (exhibit “ A ”) falsely states the true amount of the indebtedness. The prayers are:

1. For decree reforming said agreement so as to make it conform to the truth.

2. For an account of the moneys received from the sale of the personal property, etc., and

3. For a decree that the defendant reconvey the real estate ; and that, in the mean time, he be restrained from transferring or in any way incumbering said real estate, etc.

The defendant demurred to the bill, and assigned, inter alia, for cause of demurrer, that “ the plaintiff has not in and by his bill shown any ease entitling him to the relief prayed,” and that lie “ has a full, adequate and complete remedy at law.”

Without filing any opinion or giving any reason for its action the learned court below sustained the demurrer and dismissed the bill, hence this appeal.

The effect of the demurrer was to admit the truth of all the averments of fact well pleaded. No one can read and consider the averments of fact properly set forth in the bill, without coming to the conclusion that a proper case for equitable relief is therein set forth. It is not our purpose to discuss the question. It is too plain for argument that, so far as anything appears on the record before us, the demurrer should not have been sustained. It follows that the decree must be reversed and the case remanded to the court below for further proceedings.

Decree reversed at appellee’s costs, and it is ordered and decreed that the demurrer be and is hereby overruled and the defendant is ordered to answer; and it is further ordered that the record be remitted to the court below with instructions to proceed to final decree in accordance with the rules regulating equity practice.