Sewell v. Peavey

SAYRE, J. Appellant in brief points out some defects in the form of the bill which need not be considered, since they were not pointed out by the demurrer. The bill, which seeks to have a deed executed in pursuance of the contract between the parties, avers payment of the agreed purchase price. Appellant seems to urge that the bill should allege payment precisely when due, not later. But if appellant accepted payment when past due, he waived the default, and must' [324] now execute the consideration upon which the payment was made and accepted. This is plain equity. If complainant have been in possession all the while, as they allege the case to be, they might, without conceivable hurt or wrong to defendant, defer their bill indefinitely. Nor could their delay, in these circumstances, be construed as an abandonment of their right to have the legal title. Complainants being in possession, limitation, laches, and prescription were running-in their favor and against defendant. The burden of action was on defendant. The rule that the bill must be construed against the pleader does not require the court to assume the existence of defensive matter, as, for example, that the possession into which complainants were let at the time of the contract, and presumptively in pursuance of the contract, has been since converted by another and different agreement into a tenancy. The bill has equity, and is thus proof against the general demurrer. We do not find that it is open to any special objection taken by the demurrer, and the chancellor’s decree will be affirmed. Affirmed. Anderson, C. J., and McClellan and de Graffenried, JJ., concur.