Challefoux v. Ducharme

On the motion for rehearing. By the Court,

Conn, J.

This cause came before this court at the June term, 1855, upon *309the appeal from the decree of the circuit court dismissing the complainants’ bill for want of equity. On an examination of the case, and of the points raised and discussed by counsel, we were led to the conclusion that the bill had been improperly dismissed; at least as to the defendants, Ducharme. The decree of the circuit court was therefore reversed, and the cause remanded for further proceedings.

At the last term a motion was made for a rehearing of the cause; and in support of this motion several questions were discussed which were not alluded to on the former argument, to show that the court had misapprehended the case. But we think that this motion must be denied, as we are still of the opinion that the complainants have rights in the premises not conveyed to Shaler; though they may not, perhaps, be equitably entitled to the entire south half of the lot as intimated in the opinion on file. It has been suggested by the counsel who argued in favor of a rehearing that the defendants, Ducharme, might have been, and probably were, to considerable expense in paying taxes and assessments upon the common property before the sale, of a part of it, to Shaler; and that they had made valuable improvements upon the south half of the lot, which greatly enhanced its value; and that it would be inequitable and unjust to decree it to the complainants without making compensation for such improvements. Neither by the pleadings, or argument, when the case was upon hearing was our attention called to these claims of the defendants Ducharme, and of course they were not considered by us in disposing of the case. It is possible that such claims exist, and that from the oversight of counsel, they were not set up and inserted in the answers. And it may be permissible at this stage of the cause, for the circuit court to allow an amendment of the pleadings so that they might come in; though we express no opinion upon the point of practice. In deciding this motion we wish merely to *310qualify and limit any expressions in the opinion of the court, which would seem to give the south half of the lot absolutely to the complainants, to the prejudice of these claims of the defendants, Ducharme, if they exist; and if their answers now are, or can be so amended as to enable them to assert them.