187 Mass. 58 | Mass. | 1904
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. 865. 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 heen 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 delated without being excused from bringing this suit. The allegation
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.