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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 14   View pdf image (33K)
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14 HIGH COURT OF CHANCERY.
themselves by admissions, or by evidence, if they are inca-
pable of doing so, from minority or other cause.
In (his case, the bill does allege that the real estate is not
susceptible of partition, and that it will be for the interest and
advantage both of the defendants and complainants to sell the
same, and divide the proceeds thereof between the parties, in
proportion to their respective interests.
This allegation is clearly sufficient to give the court jurisdic-
tion. In the case of Tomlinson vs M'Kaig, 5 GUI, the
Court of Appeals say the bill could not be sustained, as found-
ed on the Act of 1785, chap. 72, because of the absence of
this very allegation; and the case was remanded to the county
court for such proceedings as are there indicated.
In this bill, however, the necessary averment is made, and
if it be established bv the answers, or by evidence, the power
of the court to decree a sale is unquestionable.
This fact is admitted by the demurrer, as are all other facts
which are relevant and well pleaded. Strong's Eq. PI,, sec.
452.
The demurrer, then, admits that the land is held by the
plaintiffs jointly, or in common with the defendants, and that
it will be for the interest and advantage of all of them that it
be sold, and the proceeds divided between them, in proportion
to their respective interests,
Now, if this be true, and for the purpose of this argument,
it is admitted to be true, the case appears to be within the pro-
visions of (he Acts of Assembly referred to, and the authority
of the court to decree a sale is clear.
Though parties in certain cases have the right to resort to
demurrer, and there may be cases in which it is quite proper to
do so, it is very certain, that this mode of defence is viewed
with suspicion and disfavor, as indicative of an unwillingness
fairly to meet the plaintiff's case. Story's Eq. PI., sec. 434,
note 4.
In the case now under consideration, the bill alleges that
this defendant, William Mewshaw, has been in possession of
the property in question since the year 1834, receiving the
profits thereof to his own use, refusing to surrender possession,

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 14   View pdf image (33K)
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