Equity Pleading and Practice, Demurrer. Equity Jurisdiction, Laches, Statute of limitations, Tender.
A demurrer to a bill in equity on the ground of lathes will not be sustained if the laches do not appear from the allegations of the bill itself.
A demurrer to a bill in equity on the ground that it is barred by a statute of limitations will not be sustained unless the allegations of the bill clearly show that the statute is a bar.
A demurrer to a bill in equity to enforce specific performance of an agreement to reconvey real estate to the plaintiff in accordance with the provisions of an agreement in writing, which is based on an assertion that no sufficient tender was alleged in the bill, will not be sustained if the bill contains an allegation that the plaintiff was ready to pay the other party to the agreement any and all sums due him in accordance with its terms.
A bill in equity against a corporation and two individuals alleged in substance that the plaintiff permitted the corporation to foreclose a mortgage upon his real estate and allowed it to be purchased by one of its employees, a second defendant, at an inadequate price, that the corporation agreed in writing to reconvey it to the plaintiff on the payment of a certain sum and that the plaintiff offered the sum required, but that the corporation had conveyed the property to the third defendant who took with notice. The bill sought a reconveyance upon payment of the sum required by the agreement in writing. The defendants demurred on the ground of a want of equity. Held, that the demurrer should be overruled.
CARROLL, J.
In this bill in equity, the plaintiffs prayed that the defendant Brown be restrained from selling or mortgaging the real estate described in the bill, and that all the defendants be ordered to convey the property to the plaintiffs, on payment of the amount found to be due the Harvard Brewing Company, one of the defendants. The defendant Brown demurred on the ground of the plaintiffs' laches, the statute of limitations, and that the offer of the plaintiffs alleged in their bill did not constitute a legal tender as required by law in proceedings for the redemption of mortgaged property. In the Superior Court the demurrer was overruled and the case reported to this court.
If the laches of the plaintiffs was apparent on the face of the bill, this was good ground for demurrer. Turners Falls Fire District v. Millers Falls Water Supply District, 189 Mass. 263, 266. Sampson v. Sampson, 223 Mass. 451, 457. It did not however appear on the bill itself, and while the defendant could allege in his answer facts tending to show the plaintiffs' laches, it was not so clearly stated in the bill as to make it demurrable. See Story, Eq. Pl. §§ 446, 448. It does not appear from the bill that the plaintiffs' claim was barred by the statute of limitations, and the contention that the proceedings were not brought within six years after foreclosure by sale and entry, is not, for this reason, open to the defendant on demurrer.
The defendant Brown also demurred on the ground that a sufficient tender under R. L. c. 187, § 21, was not made and that this appeared on the face of the bill. Even in a bill to redeem it is not always necessary to allege that a tender has been made under R. L. c. 187, §§ 19, 20, 21. A strict tender may not be required, but a general offer to pay the balance due is sufficient under the statute. Donohue v. Chase, 139 Mass. 407, 409. In addition to this, the plaintiffs' bill was not one to redeem only; it was in part a bill for specific performance.
We see no reason why the defendant's demurrer should be sustained. The decree of the Superior Court overruling it must be affirmed.
Ordered accordingly.