Scully v. Dermody

• Decision Date: 03 October 1939
• Docket Number: No. 120.,120.
• Citation: 8 A.2d 675
• Parties: SCULLY v. DERMODY et al.
• Court: Vermont Supreme Court

8 A.2d 675

SCULLY

v. DERMODY et al.

No. 120.

Supreme Court of Vermont. Bennington.

Oct. 3, 1939.

Appeal in Chancery, Bennington County; Charles A. Shields, Chancellor.

Suit in equity by Edward J. Scully, individually and as administrator of the estate of Mary G. Dermody, deceased, against William P. Dermody, Catherine Dermody, and others to set aside a deed, remove cloud from title to land conveyed, enjoin all persons from claiming interests therein, and recover possession of land. From a decree sustaining defendant Catherine Dermody's demurrer to, and dismissing, the bill, plaintiff appeals.

Reversed pro forma, and cause remanded with leave to plaintiff to apply for permission to amend the bill.

Argued before MOULTON, C. J, and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Edward J. Hall, of Bennington, for plaintiff.

Franklin P. Jones, of Bennington, for defendants.

BUTTLES, Justice.

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 quit claim 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 quit claim 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 quit claim 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 quit claim 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 thereunder 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 quit claim 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 insufficient and dismissed. From this order the substituted plaintiff duly appealed to this Court.

The benefit which the defendant may have under Chancery Rule 15 is in the alternative. He may insist in his answer on any special matter that goes to the merits of the bill with the same benefit 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, otherwise it is waived. Waterman v. Moody and Rogers, 92 Vt. 218, 226, 103 A. 325. Clearly this was the procedure followed below and the case stands in this Court as if appeal had been taken from a decree sustaining a formal demurrer.

Paragraphs B, C and D above referred to were in brief as follows:

B. That if the plaintiff ever had any such claim as he now sets up in the bill of complaint it accrued to him on the death of Mary G. Dermody, to wit, on June 4, 1912, and the same has long been barred by the laches of the plaintiff.

C. That the action described in plaintiff's bill by which he seeks to recover lands or the possession thereof accrued more than fifteen years prior to the commencement of this action, and that this defendant and her predecessors in title have not since July 15, 1884, said or done anything to take the action out of the Statute of Limitations.

D. Defendant insists that the action described in plaintiff's bill is an action to try the title to real estate.

As to laches it is sufficient to say that although the rule appears to be otherwise in many jurisdictions, it is well settled that in this state this defense cannot be raised by demurrer. Bufton v. Crane, 101 Vt. 276, 281, 143 A. 382; Collins v. City of Barre, 91 Vt. 343, 349, 101 A. 43; Page v. Cave, 93 Vt. 190, 193, 106 A. 774; Hall v. Windsor Sav. Bank, 97 Vt. 125, 136, 121 A. 582, 124 A. 593.

The defense of limitations sought to be raised by Paragraph C. stands somewhat differently from the defense of laches, since under our decisions it has been repeatedly held that the statute of limitations may be availed of by demurrer when the objection appears on the face of the bill. Sherman & Adams v. Windsor Mfg. Co., 57 Vt. 57, 59; Wilder's Ex'r v. Wilder, 82 Vt. 123, 129, 72 A. 203; Hall v. Windsor Sav. Bank, supra. It is necessary here to inquire whether the objection sufficiently appears on the face of the bill to make the defense of limitations under the statute available on demurrer. Defendant says in effect that the deed of Mary G. Dermody to Hugh Kelly dated July 15, 1884, even if it was defective was sufficient to give color of title and having been followed by possession thereunder adverse to the wife and her heirs for more than fifteen years the present action would be barred by the statute of limitations.

The bill avers "that the said Mary died June 4th, 1912 and that her husband Michael Dermody on her death by virtue of the law of descent of the State of Vermont, had a vested interest in any real estate of the said Mary and, in default of administration of her estate, remained in possession of the same to the time of his death May 8th, 1936." It is also alleged in the bill that the "said Mary and Michael lived thereon to the time of the death of the said Mary, June 4, 1912; and that the said Mary never ceased to live thereon and never parted with the possession of the said real estate from the date of her acquisition thereof to the date of her death; and that after the death of the said Mary, the said Michael Dermody continued to live thereon until his death May 8th, 1936. That said Michael Dermody who had a vested interest in the estate of the said Mary under the laws of descent of the State of Vermont as a widower, and as such had been entitled to live thereon, pending a settlement of her estate, which has never been settled, attempted to dispose of the said real estate by will and under a claim of ownership based upon said purported deeds from Mary G. Dermody to Hugh Kelly and from Hugh Kelly to Michael Dermody."

The objection that the claim of Michael and his heirs is barred by the statute does not therefore appear from the face of the bill since the bill does not aver that Mary's possession of the property ceased prior to her death in 1912, or that thereafter Michael held or claimed to hold the property otherwise than under his claimed vested interest as surviving husband in his wife's real estate. In short so far as appears from the face of the bill there was no claim of...