Scully v. Dermody
| Decision Date | 03 October 1939 |
| Parties | EDWARD J. SCULLY v. WM. P. DERMODY ET AL |
| Court | Vermont Supreme Court |
May Term, 1939.
1. Status of Answer in Nature of Demurrer under Chancery Rule 15---2. Status on Appeal---3. Laches as Ground for Demurrer [110 Vt. 423] ---4. Statute of Limitations as Ground for Demurrer---5. Bill Held Not Demurrable under Statute---6. Bill Construed as Instituting Suit to Remove Cloud from Title---7. Demurrer on Ground Question of Title Involved---8. Jurisdiction of Equity Courts to Remove Clouds from Title---9. Jurisdiction When Instrument Void on Its Face---10. Jurisdiction Sustained Notwithstanding Rule---11. Possession by Plaintiff Essential to Equity Jurisdiction---12. Application of Rule---13. Bill Failing to Allege Possession in Plaintiff Demurrable---14. Actual Possession Contemplated---15. Bill Held Demurrable as Lacking Allegation as to Possession---16. Cause Remanded with Leave to Amend.
1. Under chancery rule 15 a defendant in a suit in equity may insist in his answer on any special matter that goes to the merits of the bill as if he had formally demurred to the bill, in which case the demurrer is for consideration as if it stood alone and must be brought forward for hearing before the case is heard on its merits or it is waived.
2. Where a defendant in a suit in equity included in her answer certain special matters followed by prayers appropriate for a demurrer and upon hearing the Chancellor ruled that it was proper to hear such special matter, treating it as in the nature of a demurrer under chancery rule 15, and ordered that the defendant's demurrer be sustained and the bill adjudged insufficient and dismissed, the case stood in Supreme Court on plaintiff's appeal from the chancellor's order as if appeal had been taken from a decree sustaining a formal demurrer.
3. The defense of laches cannot be raised by demurrer in a suit in equity.
4. The statute of limitations may be availed of by demurrer in a suit in equity when the objection appears on the face of the bill.
5. A bill in equity by which suit was commenced in 1937 and by which it was sought to have declared void two deeds executed in 1884 purporting to transfer title to real estate from a wife to her husband was not demurrable as being barred by the statute of limitations when the bill did not aver that the wife's possession of the property ceased prior to her decease in 1912 or that the husband thereafter held or claimed to hold the property otherwise than under his claimed vested interest as surviving husband and where, so far as appeared on the face of the bill, there was no claim of ownership adverse to the wife and her heirs until asserted by the husband's will, which spoke as of the date of his death in 1936.
6. A suit in equity in which the bill sought to have two deeds from a wife to a third person and from the latter to the husband, declared void because the husband did not join in the execution of the wife's deed, was to be regarded as essentially a suit to remove a cloud from title rather as a suit to try title.
7. That a question of title is incidentally involved in a suit in equity would not be ground for demurrer, since a court of equity which has obtained jurisdiction of a controversy on any ground or for any purpose will retain such jurisdiction for the purpose of administering complete relief.
8. Courts of equity have jurisdiction to remove clouds from title to real estate in proper cases.
9. A court of equity will not exercise its jurisdiction to remove a cloud from title when the instrument or proceeding involved is void on its face so that no extrinsic evidence is necessary to show its invalidity, but in such a case will leave the party to his remedy at law.
10. Notwithstanding the rule that a court of equity will not exercise its jurisdiction to remove a cloud from title when the instrument or proceeding is void on its face the court of chancery had jurisdiction of a suit to have declared void two deeds of real estate, from a wife to a third person and from the latter to the husband, where there was nothing in the questioned deed of the wife to indicate that she was not a feme sole at the time she executed it and that the instrument was defective because the husband did not join in its execution.
11. In order to maintain a suit in equity to remove a cloud from title when the title or interest concerned is legal in its nature, possession of the property by the plaintiff is necessary.
12. For the purpose of removing a cloud on title a plaintiff out of possession, holding the legal title, will be left to his remedy by ejectment under ordinary circumstances, but where he is in possession and thus unable to obtain any adequate legal relief, he may resort to equity.
13. Where possession in the plaintiff is necessary to sustain a suit in equity to remove a cloud from title a bill which fails to allege that the plaintiff is in possession of the lands is demurrable.
14. Whenever possession is a condition precedent to the maintenance of an action to remove a cloud from title, actual possession or possession in fact as distinguished from constructive possession simply by virtue of legal title is usually contemplated.
15. Where a bill in equity seeking to have declared void two deeds of real estate, from a wife to a third person and from the latter to the husband, on the ground that the wife's deed was defective because the husband did not join in its execution, contained no allegation that the plaintiff was in actual possession of the property when suit was commenced, and where primary relief was not sought on other equitable grounds, a demurrer to the bill on the ground that it described an action to try title was properly sustained.
16. When a bill in equity in the nature of a bill to remove a cloud from title was held by the Supreme Court on appeal to be demurrable because it contained no allegation that the plaintiff was in possession of the property involved when suit was commenced and alleged no other ground of equitable jurisdiction, but where it did not appear from the record in whose possession the property was, the decree of the chancellor sustaining the demurrer was reversed pro forma and the cause remanded with leave to the plaintiff to apply for permission to amend the bill, as it was possible that the bill could be so amended as to show the facts regarding possession to be such that the court of chancery would have jurisdiction of the cause.
APPEAL IN CHANCERY. Bill in the nature of a bill to remove a cloud from title seeking to have declared void two deeds of real estate purporting to transfer title from wife to husband. Answer alleging by way of demurrer certain special matter going to the merits of the bill. Heard on the bill and said special matter in the answer at the June Term, 1938 Bennington County, Shields, Chancellor. Decree treating said special matter as a demurrer, sustaining the demurrer, and dismissing the bill. The plaintiff appealed. The opinion states the case.
The decree will therefore be reversed pro forma and the cause remanded with leave to the plaintiff to apply for permission to amend the bill. Should no such application be made within the time limited the chancellor will dismiss the bill with costs.
Edward J. Hall for the plaintiff.
Franklin P. Jones for the defendant.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
It appears from the bill of complaint in this suit in chancery that on July 15, 1884, Mary G. Dermody executed what purported to be a quitclaim deed to Hugh Kelly of a certain parcel of real estate in Bennington and on the same day said Hugh Kelly executed what purported to be a quitclaim deed of the same property to Michael Dermody. Michael, who was the husband of Mary, did not join in the execution of her said deed to Kelly and it is alleged that because of his failure so to join said deed was void and no title was conveyed by Mary's purported deed to Kelly or by Kelly's purported deed to Michael.
After the execution of said quitclaim deeds Mary G. Dermody and her husband Michael lived together upon the property here in controversy until the death of Mary on June 4, 1912, and thereafter Michael continued to live thereon until his death on May 8, 1936, and attempted to dispose of the same by will and under a claim of ownership based upon said quitclaim deeds which are claimed by the plaintiff to have been invalid.
The bill of complaint prays, among other things, that said deed from Mary to Kelly and all claims of title thereon or there-under be decreed to be void, that the title of the said land be decreed to the Estate of Mary G. Dermody, that the Probate Court be enjoined from decreeing said real estate under the will of Michael Dermody or otherwise than as a part of the estate of Mary G. Dermody, that all persons be enjoined from maintaining or claiming any interest in said real estate under and by virtue of said quitclaim deeds from Mary G. Dermody to Kelly and from Kelly to Michael Dermody, and that the possession of said real estate be decreed to the heirs of Mary G. Dermody.
The defendant Catherine Dermody answered the bill of complaint and included in her answer certain special matter therein designated paragraphs B, C and D, of Part I. These paragraphs were followed by prayers appropriate for a demurrer. Upon hearing the chancellor ruled that it was proper to hear such special matter contained in said paragraphs prior to hearing of the entire case on its merits, treating the same as in the nature of a demurrer under chancery rule 15, and upon such further hearing ordered, adjudged and decreed that the defendant's demurrer be sustained and the plaintiff's bill be adjudged...
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