
    Elijah Carter v. Nicholas Longworth and others.
    Where a bill to redeem mortgaged premises charges that the mortgagor fraudulently stood by and witnessed a purchaser from the mortgagee making improvements, and concealed his lien, a demurrer to such hill can not he sustained.
    This was a suit in chancery, reserved for .decision by the Supreme Court in Hamilton county.
    The bill was filed in the court of common pleas, and set forth that the plaintiff, some time in 1816, purchased of one William Stewart, a certain lot of ground in Cincinnati, for the sum of one thousand five hundred dollars, and received from Stewart a deed of general warranty. At the time of the purchase, Stewart exhibited to the plaintiff a deed for the lot, from Longworth to himself, and assured the plaintiff that the purchase money was fully paid to Longworth. At this time the plaintiff, Longworth, and Stewart were residents of Cincinnati. The plaintiff, fully believing that the purchase money had been paid to Longworth, erected a dwelling house, and made other improvements upon the lot, to the value of six hundred dollars. Longworth knew that these improvements were making, yet fraudulently concealed from the plaintiff the fact, that, a,t the time, he held a mortgage on the lot for one thousand five hundred and seventy-five dollars, the whole amount of the purchase money due from Stewart for the lot. Some time in 1818, after these improvements were made, and before any steps were taken to foreclose the mortgage, Longworth took possession of the lot, and on Nobember 15, 1822, sold a part of it to the defendant, Jacob Flagg, for one thousand three hundred dollars, and the residue to one Matthew Yandusen, for one thousand dollars. Yandusen afterward relinquished his part to Longworth, who is still the’owner.
    *The defendants, Longworth and Flagg, continued in possession and received the rents and profits, to the amount of nine hundred dollars, until the year 1826, when Longworth sued out a. scire facias upon the mortgage, and upon the return of two nihils recovered a judgment by default for the whole amount of the purchase money, with interest, giving no credits for the rents and profits. The plaintiff was not made party to the scire facias.
    
    The bill charges that Longworth extended credit to Stewart — gave him a deed for the lot, and thereby enabled him to defraud the plaintiff, by inducing him to believe that the lot was paid for, when, in fact, it was not. That the plaintiff is the only person injured in the premises, and that injury was sustained by the fraud and combination of Longworth and Stewart. The bill did not state the date of the deed from Longworth to Stewart, or of the mortgage; nor did it appear that either of them were ever recorded. It did not appear that the lot had been sold under the judgment upon the scire facias. The deed of the plaintiff was duly recorded. Stewart is insolvent and a non-resident.
    The bill contained a prayer for redemption, account, and for general relief.
    The defendants, Longworth and Flagg, demurred generally to the whole bill.
    The defendant, Stewart, made no defense.
    The court below sustained the demurrer, and the plaintiff appealed to this court.
    The decision of the court rested upon other grounds than those argued by counsel.
    Longworth & Worthington,
    in support of the demurrer.
    Gaines, contra.
   By the Court :

If the defendants are bound to answer any part of the bill, the demurrer, being entire to the whole bill, must be overruled. A demurrer, bad in part, is bad in toto. 1 Ves. 248; 1 Atk. 450; 2 Atk. 44; Mad. Ch. 226; 1 Johns. Ch. 51; 5 Johns. Ch. 186.

*The main question intended to be presented by the demurrer, whether a scire facias binds subsequent incumbrances, need not be determined. The bill charges “ a fraudulent concealment of title, while the complainant was making improvement.” A demurrer to such charge of fraud is bad. In the case of Higingbothem v. Burnet, 5 Johns. Ch. 184, the bill charged that the party in interest stood by and saw great and costly improvements made upon the land, by persons claiming and believing themselves to be owners in fee, and never interposed any pretension of right or title. There was a demurrer to the whole bill, which was overruled, because the charge amounted to an imposition and fraud. Here the charge of fraud is direct and positive, and must be met otherwise than by a demurrer.

Demurrer overruled. 
      
       Contra, 2 Bibb, 484.
     