Opinion
02-14-1900
HOLMES et al. v. HOLMES.
Clark McK. Whittemore, for complainants. Charles H. Angleman, for demurrant.
Suit: by James B. Holmes and others against Jacob J. Holmes. Defendant demurs to the bill. Demurrer overruled.
Clark McK. Whittemore, for complainants.
Charles H. Angleman, for demurrant.
GREY, V. C. (orally). The bill in this cause shows that one of the complainants (James B. Holmes) is the grantor, and the others the grantees, of a lot of land; that the complainant James B. Holmes had previously made a deed to the defendant, Jacob J. Holmes, conveying the same premises, and had intrusted him with the deed, upon an agreement that it should not be recorded until the purchase money was paid. Without paying the purchase money, the defendant, Jacob J. Holmes, recorded the deed, and insists upon his right to possession. The complainant James B. Holmes has conveyed the property to the other complainants, and they seek to have a decree that the deed made to Jacob be canceled, or, if it be held not to be void, then that a vendor's lien for the purchase money may be decreed and enforced in favor of the complainant James B. Holmes. The bill contains an extended relation of the transfers of the title and of the dealings of the parties, and several special prayers for relief, but the above-stated equity is apparent upon inspecting the bill, taking its narrated facts to be true. To this bill the defendant has filed a general demurrer, without specifying any causes of demurrer. The complainant objects that, without some specifications of the cause of demurrer, he is not apprised of the grounds upon which the defendant criticises his bill. In Paper Co. v. Greacen, 45 N. J. Eq. 506, 19 Atl. 466, it was declared that, where the question as to sufficiency of the bill is manifest on its face, a general demurrer for want of equity, without any specification of grounds, would be sustained, but, where the defect is so obscure that it is not readily discernible on the face of the bill, a specification of the grounds on which the demurrer is found will be required. The demurrant in this case insists that the bill shows an apparent want of equity, because he claims that it asks both to set aside the deed to the defendant, Jacob J. Holmes, and recognizes its validity, in asking to have the purchase money in the same deed declared to be a lien, etc. There is shown in the bill a most confused condition of the title to the land, arising from the ignorance of the parties who conducted the business as to the effect of their action. The bill sets out all that was done, and claims that the making of the deed to Jacob was merely tentative, and not intended to pass title unless upon the happening of a certain stated event; that this event did not happen, and consequently the deed to Jacob was inoperative, and he had no right to record it, and the complainant has an equity to have a clearing of the record and a restoration of the title, exactly as if that deed had never been executed. The bill also asks, in the alternative, that if the first mode of relief should fail, and if for any reason that deed should stand, then the purchase money which should have been paid, and was not paid, may be declared a lien against the title so held to be in the defendant Jacob J. Holmes, and that it may be enforced against it. The remedies sought are within the general scope of the equity set forth in the bill. They are asked for successively, and not concurrently, as intimated by the defendant. Notwithstanding the somewhat confused statement of the complainant's claim, there may be found in the bill a sufficient allegation of a right to equitable relief to stand against a general demurrer, which goes to the whole bill, and cannot be sustained as to part only. Banta v. Moore, 15 N. J. Eq. 103; Brownlee v. Lockwood, 20 N. J. Eq. 257. The demurrer should be overruled, with costs.