Equity Jurisdiction, Laches. Equity Pleading and Practice. A bill to redeem real estate from a foreclosure under a mortgage, voidable because of fraud and mismanagement by the mortgagee while in possession, cannot be maintained if filed more than ten years after the foreclosure, of which the mortgagor had knowledge during the whole of that period.
Where laches appears on the face of a bill in equity that defence can be set up by demurrer.
It is not a sufficient excuse for the laches of the heirs at law of a mortgagor, in delaying for ten years to bring a suit in equity to redeem real estate from a foreclosure alleged to be voidable by reason of fraud and mismanagement by the mortgagee while in possession, that "the plaintiffs have been delayed in the bringing of this action by the negligence and misconduct of certain attorneys whom they have employed to protect their interests therein, but who have either done nothing or have so unskilfully managed the said action that the plaintiffs have wholly failed to secure the relief to which they are and were entitled; said attorneys being at no time able to respond in damages for their said negligence and misconduct." The foregoing allegation in a bill in equity otherwise bad for laches is too general to put on the defendants the burden of a trial.
LORING, J.
The case made by the bill as originally filed (assuming that the allegations were sufficiently precise to state a case) is that both foreclosures are voidable because of fraud and mismanagement of the mortgagee while in possession, and of a refusal to account on demand. It is not pretended that the mortgagor or her heirs, the present plaintiffs, were ignorant of the fact that the mortgage had been foreclosed. It appears that more than ten years have elapsed since the date of the later foreclosure. That convicts the plaintiffs and their ancestor of laches. Learned v. Foster, 117 Mass. 365. Fennyery v. Ransom, 170 Mass. 303. See also Bancroft v. Sawin, 143 Mass. 144. Where laches appears on the face of the bill, the defence can be set up by demurrer. Snow v. Boston Blank Book Manuf. Co. 153 Mass. 456, 457.
This defect has not been cured by the amendment. To escape from the imputation of laches it was incumbent on the plaintiffs to allege such facts as showed an excuse. The allegation here does not go far enough. It is: "The plaintiffs have been delayed in the bringing of this action by the negligence and misconduct of certain attorneys whom they have employed to protect their interests therein, but who have either done nothing or have so unskilfully managed the said action that the plaintiffs have wholly failed to secure the relief to which they are and were entitled; said attorneys being at no time able to respond in damages for their said negligence and misconduct." Such an allegation is too general a one to put the defendants to the burden of a trial. The plaintiffs may have been delayed without being excused from bringing this suit. The allegation here is like a general allegation of fraud, which it is well settled is not enough to put on a defendant the burden of going to a trial. As to this, see Nye v. Storer, 168 Mass. 53, where the demurrer was a general demurrer; Wallingford v. Mutual Society, 5 App. Cas. 685. See also Nichols v. Rogers, 139 Mass. 146; Garst v. Hall Lyon Co. 179 Mass. 588; Fogg v. Blair, 139 U.S. 118; Van Weel v. Winston, 115 U.S. 228; United States v. Atherton, 102 U.S. 372, 374.
The allegations in the fifteenth paragraph also are open not only to this objection but to the further objection that they do not cover three years and four months of the ten years or of the twelve years, as one or the other method of foreclosure is taken to be under attack.
It is not necessary in this case to consider the cases relied on by the plaintiffs, Denton v. Noyes, 6 Johns. 296, Dinwiddie v. Self, 145 Ill. 290, Whitridge v. Whitridge, 76 Md. 54, Boing v. Raleigh Gaston Railroad, 88 N.C. 62, or those relied on by the defendants, Ayres v. Morehead, 77 Va. 586, Callaway v. Alexander, 8 Leigh, 114, Ives v. Sargent, 119 U.S. 652.
Decree affirmed.