93 Vt. 190 | Vt. | 1919
The plaintiff is a son of Nathaniel C. Page, late ■■of Plainfield, Vermont, deceased, and the defendants are the latter’s administrator, Lois (Page) Brown, a granddaughter of the intestate, and Russell Brown, husband of the said Lois. This cause was argued at the January Term, 1917, on a premature appeal, which was dismissed. See 91 Vt. 188, 99 Atl. 780. It was later heard in the court of chancery on the demurrer of Russell Brown to the bill of complaint. The demurrer was overruled, the bill taken as confessed as to him, and a decree entered against him in accordance with the prayer of the bill. From this decree the said Brown comes here on appeal.
The bill alleges in substance that the said Nathaniel C. Page died March 18,1895, leaving, among other heirs, the plaintiff and the defendant Lois Brown; that prior to May 25, 1892, the said Nathaniel was living on a farm owned by him in Plainfield, and, being in feeble health, had been cared for by an unmarried daughter; that said daughter became desirous of being married and terminating the care of her father; that on said last-named date the plaintiff and the said Nathaniel entered into an agreement by the terms of which the plaintiff was to care for and support his father during his lifetime, give him a suitable burial, and pay all of his just debts and funeral expenses; that in consideration thereof the said Nathaniel agreed to transfer all his property, real and personal, to the plaintiff, and, in case the plaintiff should carry out his part of the agreement, he was to have all of said property; that pursuant to said agreement the plaintiff moved onto and took possession of the farm and all of said Nathaniel’s personal property; that ever afterwards he
The objection that the agreement relied upon is within the statute of frauds, and so not enforceable, is not well taken. The court of chancery was justified in overruling the demurrer," so far as this objection is concerned, on the ground that it does not appear whether the agreement was in writing or not, since it will be presumed that it was in writing until the contrary is made to appear. Cooley v. Hatch, 91 Vt. 128, 131, 99 Atl. 784.
Nor can the demurrer be sustained on the ground of laches. It is too well settled here to admit of question that when one relies upon laches, as distinguished from the statute of limitations, to bar an action he cannot protect himself by demurrer, but must plead or answer the facts. Drake v. Wild, 65 Vt. 611, 617, 27 Atl. 427; Gleason v. Carpenter, 74 Vt. 399, 403, 52 Atl. 966; Wilder’s Exr. v. Wilder, 82 Vt. 123, 129, 72 Atl. 203.
Besides, the facts do not present a case on which laches will be imputed to the plaintiff as matter of law. In the circumstances there was no unreasonable delay on his part. He continued in peaceable possession of the property and enjoyed his rights in the premises unquestioned until a short time before the action was commenced. The possession afforded notice to all of his equitable rights and was a continued assertion thereof. In such circumstances, mere lapse of time will not defeat the remedy. Van Dyke v. Cole, 81 Vt. 379, 397, 70 Atl. 593; Gove v. Gove’s Admr., supra; Snell v. Hill, 263 Ill. 211, 105 N. E. 16; Low v. Low, 173 Mass. 580, 54 N. E. 257; White v. Patterson, 139 Pa. St. 429, 21 Atl. 360; D’Ellissa v. D’Amato, 85 N. J. Eq. 466, 97 Atl. 41, affirmed in 86 N. J. Eq. 244, 98 Atl. 1085.
The remaining grounds of demurrer are to the same point, viz.,that the facts alleged do not make a case for equitable relief. It is urged in support of this claim that failure to acquire legal title to the. premises through ignorance of the law does not furnish a basis of equitable jurisdiction, and Deavitt v. Ring,
Decree affirmed, and cause remanded. Let a new time be fixed.