Monahan v. Harvard Brewing Co.
George F. Monahan & others v. Harvard Brewing Company & others
Opinion of the Court
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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’ loches, 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 loches 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’ loches, it was not so clearly stated in the bill as to make it demurrable. See Story, Eq. PI. §§ 446, 448. It does not appear from the bill that the plaintiffs’ claim was barred by the statute of limitations, *292 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 It. 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.
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