Stewart v. Masterson
131 U.S. 151 (1889)

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U.S. Supreme Court

Stewart v. Masterson, 131 U.S. 151 (1889)

Stewart v. Masterson

No. 287

Argued April 25, 1889

Decided May 13, 1889

131 U.S. 151

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT OF TEXAS

Syllabus

A demurrer to a bill in equity cannot introduce as its support new facts which do not appear on the face of the bill, and which must be set up by plea or answer.

Where there is matter in the bill which is properly pleaded, and is properly

Page 131 U. S. 152

ground for equitable relief, and requires an answer or a plea, a demurrer to the whole bill will be overruled.

Where a bill is taken as confessed by one of two defendants before a decree is made dismissing the bill on demurrer as to the other defendant, the latter can appeal from the decree although it does not dispose of the case as to his codefendant.

In equity. Decree dismissing the bill. The case is stated in the opinion of the court.

MR. JUSTICE BLATCHFORD delivered the opinion of the Court.

This is a suit in equity brought in the Circuit Court of the United States for the Eastern District of Texas by James Reid Stewart. The original bill was filed against James L. Tait and his wife and Branch T. Masterson. Tait and wife demurred to the bill, among other things, for multifariousness, as did also Masterson. On a hearing, the demurrers were sustained with leave to amend the bill. The plaintiff then filed an amended bill against Masterson and Tait. It was taken as confessed as to Tait, and an order made that the cause be proceeded in ex parte as to him. Masterson demurred to the amended bill, and the demurrer was sustained and the bill as against him was dismissed. The plaintiff has appealed to this Court.

The allegations of the amended bill are substantially as follows: on the 10th of May, 1878 at Glasgow, Scotland, Stewart and Tait entered into a written agreement. By that agreement, Stewart's son and Tait were to proceed together to Texas, and Tait was to purchase 2,560 acres of land, in such place as might seem to him most advantageous at a price not to exceed 12 shillings per acre, title deeds to be made out and recorded in the name of Stewart, and he to authorize payment of the purchase money on delivery of the title deeds to the order of such party as might be named therein, money for improvements to be furnished by Stewart as required by Tait,

Page 131 U. S. 153

he to give receipts as acting for Stewart, and the farm to be worked on equal shares, and profits to be equally divided between Stewart's son and Tait, the agreement to remain in force for five years from the date of purchase of the land, a further tract of 2,560 acres to be purchased in the names of Tait and Stewart's son on a credit of four years, payment to be made out of realized profits, and until such additional land should be paid for, but not exceeding five years, Stewart should not require the repayment of moneys advanced, interest to be paid for such moneys at the rate of six percent per annum, Tait to do his best as to supervision and guidance of Stewart's son, and to have the management and be responsible to Stewart, the amount to be advanced by Stewart not to exceed in all

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