Opinion
[No. 33, October Term, 1938.]
Decided November 30th, 1938.
Equity Pleading — Multifariousness — Misjoinder of Parties.
Where defendants both answer and demur to the bill, averments of the answer contradictory of those of the bill cannot be considered in connection with the demurrer, as the demurrer admits the truth of every well pleaded allegation of the bill.
On appeal from the dismissal of a bill against two corporations and the executors of a deceased person, after the sustaining of a demurrer to the bill, the Court of Appeals could not, in the absence of such an allegation in the bill, assume that the defendants were one and the same person or entity.
A defendant is not bound to answer a bill containing several distinct and several matters relating to individuals with whom he has no concern.
A bill which alleged that plaintiff borrowed money from an individual, for which plaintiff gave a mortgage at five and a half per cent. to a realty company of which the lender of the money was president, that on this loan the lender received a six per cent. commission, that plaintiffs created ground rents on the property by leases to a development company, that subsequently plaintiff permitted these two companies and the executors of the lender, all defendants to the bill, to take over and handle the mortgaged property as mortgagees in possession, that the realty company was used by the lender as a device to conceal the usury charged by him, and asked an accounting, was multifarious, since the claim against the executors for a refund of usury was available in a court of law only, while that against the corporations was as trustees for plaintiffs, maintainable only in equity, and there was no single issue against all defendants.
The bill was also demurrable as involving a misjoinder of parties.
Decided November 30th, 1938.
Appeal from the Circuit Court No. 2 of Baltimore City (LESER, J.).
Bill by Harry F. Shew and Annabelle F. Shew, his wife, against the Oakmont Realty Comany, the Columbia Development Company and Tilghman V. Morgan and Albert J. Curran, executors of the estate of John H. Morgan, deceased. From a decree dismissing the bill, plaintiffs appeal. Affirmed.
The cause was argued before BOND, C.J., URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.
Murray MacNabb, for the appellants.
Hilary W. Gans, with whom were James B. Diggs, Allen A. Davis, Jr., and Brown Brune, on the brief, for the appellants.
Unreported cases.