since retained it for the use and benefit of the Sunday school of the Light Street Church (now known as the "First Methodist Episcopal Church"), and has paid no part thereof to the Eutaw Street Methodist Episcopal Sunday School of Baltimore City, a body corporate, for the benefit of the Sunday school of that ecclesiastical station. As the right to this legacy was vested in the Asbury Sunday School Society before the division of the Baltimore City Station, and as the legacy itself was unquestionably intended for the use and benefit of both these Sunday schools, we think that after the separation the "Eutaw Street Methodist Episcopal Sunday School," a body corporate, became entitled to a share of this legacy when it should be paid, for the use of the Sunday school of the Eutaw Street Station, of whose funds and property that corporation was then the proper custodian. A fair division of the fund with that corporation would in no wise be a diversion of the legacy from the purpose for which it was originally given, but, on the contrary, would be really enforcing the application of the fund to those purposes. According to the rule laid down by the courts in the cases cited above, the share of the common property, to be received by the respective parties to a divided ecclesiastical organization, is in proportion to their members at the time of the separation; but here, although the testimony shows that at the time of the separation of Baltimore City Station the Eutaw street congregation was somewhat the larger, yet as the claim of the complainants is for but a half interest in the legacies, we think a settlement of the dispute should be upon that basis.

There has been much delay in bringing this action, but no defense is made upon the ground of laches; and, considering the peculiar circumstances of the case, we are not disposed to refuse relief on that ground.

received by the Asbury Sunday School Society from the estate of Thomas Armstrong; but, owing to the unusual conditions surrounding the case, no interest will be allowed. We will therefore affirm the decree of the lower court in part, and reverse it in part, and remand the cause to the end that a decree may be passed in conformity with this opinion.

Decree affirmed in part and reversed in part, and cause remanded; costs to be paid equally by the three unsuccessful contestants.

(82 Vt. 123)

WILDER'S EXX v. WILDER et al. (Supreme Court of Vermont. Washington. March 3, 1909.)

1. EQUITY (§ 67*)—"LIMITATIONS"-"LACHES." The terms "limitations" and "laches," when applied to the period within which an equitable "Limitations" signify that fixed period speciright may be asserted, are not synonymous. fied in the statute, whether the statute is expressly applicable to suits in chancery or is followed in such suits by analogy, while "laches" signifies unreasonable delay independent of statute or any fixed period of time. "Laches" also involves prejudice, actual or implied, resulting from the delay. It does not arise from the delay alone, but from delay which works disadvantage to another, as the defense of laches is neither a limitation nor an estoppel, but partakes of the characteristics of both.

[Ed. Note.-For other cases, see Equity, Dec. Dig. § 67.*

For other definitions, see Words and Phrases, vol. 5, pp. 3969-3972; vol. 8, p. 7700; vol. 5, pp. 4164, 4165; vol. 8, p. 7707.] 2. LIMITATION OF ACTIONS (8 180*)—RAISING

DEFENSE-DEMURRER.

The statute of limitation may be availed of by demurrer, when the objection appears on the face of the bill.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 670-672; Dec. Dig. § 180.*]

3. EQUITY (8 219*)-LACHES-DEMURRER.
The defense of laches cannot be interposed
by demurrer, but the facts constituting it must
be pleaded.

REVIEW

-

[Ed. Note. For other cases, see Equity, Cent. Dig. § 498; Dec. Dig. § 219.*] 4. APPEAL AND ERROR (§ 173*) QUESTIONS NOT RAISED AT TRIAL. the allegations of the answer set up the deWhere it is not claimed at the trial that fense of laches, such contention cannot be raised on appeal.

As to the "Trustees of the Methodist Episcopal Church in the City and Precincts of Baltimore," one of the defendant corporations, neither of the complainants has shown any right of action against it, and the bill of complaint was properly dismissed as to that defendant, as well as to the other defendant corporation known as the "Society for the Relief of the Poor." The two appellant corporations known as the "Trustees of the Eutaw Street Methodist Episcopal Church of Baltimore City" and the "Society for the Relief of the Poor of the Eutaw Street Station Methodist Episcopal Church of Baltimore" were not necessary parties to this proceeding, but that fact does not deprive the successful complainant of its remedy, and for the reasons we have already assigned, we hold that the appellant corporation known as the "Eutaw Street Methodist Episcopal Sunday School of Baltimore [Ed. Note.-For other cases, see Appeal and City" is entitled to one-half of the legacy Error, Dec. Dig. § 194.*]

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1106, 1107; Dec. Dig. 173.*1

5. APPEAL AND Error (§ 194*)-SCOPE OF REVIEW-RESERVED QUESTIONS.

Where an exception to a paragraph of the answer was allowed without in terms reserving the question, and defendants amended their answer by striking out the paragraph in compliance with the chancellor's order, the question available on appeal. was not reserved by implication so as to be

6. PLEADING (8 419*)-RULINGS ON PLEAD - | 12. MORTGAGES (8 90*)-RECORD-NECESSITY. INGS-WAIVER OF ERror.

Where, after an exception had been sustained to a paragraph of the answer without reserving the question, a decree was rendered in accordance with an agreement of the parties, and no claim was made that the paragraph in question should be considered or covered by the decree, and it was not in fact passed on, any error in sustaining the exception thereto was waived.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 1407; Dec. Dig. § 419.*]

7. SUBROGATION (§ 7*)-SATISFIED MORTGAGE -RIGHT OF SURETY PAYING DEBT.

A husband, who was surety for his wife's debt secured by a mortgage on her separate property, after her death, leaving defendant and the husband as her sole distributees, paid the mortgage and continued to use the property as his own until he died, leaving plaintiff, his second wife, as his widow, to whom he devised the property. Held that, as against defendant's claim to the land as heir, plaintiff was entitled, as her husband's executrix, to subrogation to the rights of the mortgagee.

[Ed. Note.-For other cases, see Subrogation, Cent. Dig. § 17; Dec. Dig. § 7.*]

8. WITNESSES (§ 144*)-COMPETENCY-TRANS-
ACTION WITH PERSON SINCE DECEASED
"OTHER PARTY."

The execution and delivery of a real estate mortgage without record is enough to fix the rights of the parties thereto and their persona' representatives and heirs.

[Ed. Note. For other cases, see Mortgages Cent. Dig. § 199; Dec. Dig. § 90.*]

13. CURTESY (§ 12*)-MORTGAGED LAND-INTEREST-PAYMENT.

Decedent and his first wife resided on land belonging to her, which was subject to a mortgage on which decedent was surety. The first wife died February 8, 1878, leaving defendant as her sole heir, after which decedent continued to reside on the land and later paid the mortgage on January 27, 1880. He thereafter died, leaving a will devising one-half of the land to plaintiff, his second wife. Held, that since, after the death of decedent's first wife, he held the land as tenant by the curtesy, it was his duty to pay the interest on the mortgage, so that it was error for a decree subrogating plaintiff as decedent's executrix to the rights of the mortgagee as against defendant to include interest on the mortgage debt from the date of the death of decedent's first wife, until decedent paid the mortgage.

[Ed. Note.-For other cases, see Curtesy, Dec. Dig. § 12.*]

Appeal in Chancery, Washington County; George M. Powers, Chancellor.

Suit by George W. Wilder's executrix against George H. Wilder and others. From a decree for oratrix, defendants appeal. Modified, affirmed, and remanded.

P. S. 1589, provides that, in actions where one of the original parties to the contract or cause of action is dead, the "other party" may not testify in his own favor, except to meet or explain the testimony of living witnesses, etc. Held, that a decedent's executrix, in a suit to enforce subrogation to the rights of a mortThe master's report shows that the oratrix gagee in certain land as against an heir of decedent by his first wife, was not disqualified was the second wife of George W. Wilder, to testify as the "other party" to any contract deceased, was married to him May 8, 1884, or cause of action in issue, though she might and is the executrix of his will. His first benefit by a successful termination of the liti-wife was Maria A. Wilder, who died Febgation by force of the decedent's will.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. 8 638; Dec. Dig. § 144.* For other definitions, see Words and Phrases, vol. 6, p. 5089.]

9. APPEAL AND ERROR (§ 1051*)-ADMISSION OF EVIDENCE HARMLESS ERROR.

Error in receiving testimony of witnesses to facts admitted by the answer was harmless. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4167; Dec. Dig. 1051.*] 10. HUSBAND AND WIFE (8 17*)-HUSBAND AS SURETY.

Certain real estate having been conveyed to decedent's first wife, she and decedent on the same day mortgaged the premises to the grantor to secure their note for $2,000 and payable to bearer on demand. Decedent and his wife went into immediate possession of the property and occupied it as their home until the wife's death, after which the executor of the creditor's estate required decedent to indorse on the note an agreement waiving the statute of limitations and promising to pay it which he did. Held, that the husband was a surety for his wife, and not the principal debtor.

ruary 8, 1878.

The defendant George H. Wilder is the son of George W. Wilder by his first wife, and is his sole heir. The other defendant is the trustee under said will of one-half the residuary estate.

On March 24, 1864, one William B. Hubbard conveyed to his daughter, the said Maria A. Wilder, the premises in question in this case. No money passed in the trans

action, but on the same day Maria A. Wilder and her husband, George W. Wilder, mortgaged the premises to Hubbard to secure the payment of a note of $2,000, signed by them and payable on demand to Hubbard, or bearer. The master finds that George W. signed this note as surety. Maria A. and George W. immediately went into possession of said premises and occupied them as their home until the death of Maria A. Since the marriage of the oratrix and George W. Wilder, they occupied said premises as their home till his death, April 16, 1901. The

[Ed. Note. For other cases, see Husband and mortgage debt had not been paid when Wife, Dec. Dig. § 17.*]

11. APPEAL AND ERROR (§ 907*)-FINDINGSEVIDENCE.

Where the evidence in support of a finding is not reported, it will be presumed on appeal to have been sufficient.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3673; Dec. Dig. § 907.*]

Maria A. Wilder died, and thereafter on March 20, 1879, George W. Wilder was required by the executor of William B. Hubbard's estate to indorse on the note an agreement signed by him waiving the statute of limitations and promising to pay the note. Subsequently, and before his marriage to the

a hearing had, and a report filed, to which the defendants filed exceptions. Thereupon, without a hearing in the court of chancery, a pro forma decree passed sustaining said fourth exception and denying the defendants the benefit of the statute of limitations under paragraph 28 of the answer, overruling the exceptions to the report and accepting the same, and subrogating the oratrix to the Hubbard mortgage to the amount paid thereon by the testator January 27, 1880, with interest thereon from the date of the testator's death, April 16, 1901, to July 16, 1906, less the net rents and profits of the mortgaged premises between said last-named dates, amounting by computation to $5,443.40, and providing, among other things, for a foreclosure unless the defendants paid said sum, with interest and costs, on or before a time limited. From this decree the defendants appealed.

oratrix, George W. Wilder paid the mort-, except the fourth were sustained by the changage debt, with his own funds, and the mort- cellor, and of these rulings only that susgage was then discharged. Thereafter George taining the fifth exception is here complained W. Wilder believed that, because of that pay- of. The chancellor held that the fourth exment, he became the absolute owner of the ception was not well taken, and reserved real estate in question, and no one ever made the benefit thereof till the hearing. The anany claim to the contrary till this contro-swer was amended according to the rulings versy arose. For more than 20 years prior of the chancellor, a master was appointed, to his death, which accrued April 16, 1901, said real estate was set in the grand list to George W. Wilder, and during all that time he paid the taxes thereon, and during all the time from said conveyance thereof to Maria A. Wilder till his death he occupied the premises as his home. Since the death of George W., the defendant George H. Wilder has neither paid nor offered to pay any of the taxes, insurance, water rents, or other charges on the real estate, but the same have been paid by the executrix out of the estate of the said George W., and, without objection from any one, said real estate has been set in the list to said estate. On March 11, 1891, George W. Wilder made his will, which, after making a few bequests not material here, disposed of the residue as follows: "To my wife, Caroline F. H. Wilder, one half of all the residue and remainder of my estate, including the homestead and place where I now live as a part of her share." The "homestead" refers to the premises in question. The other half of the residue was devised to a trustee to be appointed by the probate court for the benefit of defendant George H. Wilder, and the other defendant is that trustee. The oratrix always believed, till about February, 1902, when she learned the contrary, that the legal title to the premises in question was in George W. Wilder, and after his death belonged to his estate. About February, 1902, she requested George H. Wilder to convey to her, as such executrix, the premises in question, which he refused to do. The bill prays for a decree either ordering defendant George H. Wilder to deed said premises to the oratrix, or directing that she be subrogated to the rights of the mortgagee under the mortgage, and for general

relief.

Argued before ROWELL, O. J., and TYLER, MUNSON, WATSON, HASELTON, POWERS, and MILES, JJ.

T. J. Deavitt and Edward H. Deavitt, for appellants. Plumley & Plumley and Hogan & Hogan, for appellee.

1. In paragraph 28 of the answer to which the oratrix's fourth exception applied, it is alleged that the cause of action did not accrue within 15 years and 30 days before the testator's death. The exception is that the bar of the statute of limitations, as therein set forth is not available to the defendants,

as the essential facts appear on the face of the bill, and therefore that question was raised by the demurrer; and, the demurrer having been finally disposed of, the question cannot again be raised. The defendants do not deny that this result follows if the question was raised by the demurrer.

The terms "limitations" and "laches," when applied to the period of time within which an equitable right must be asserted, do not denote the same thing. The former signifies that fixed period specified in the statute, and this is so whether the statute is expressly applicable to suits in chancery, or is followed in such suits by analogy. The latter signifies unreasonable delay, independent of the statute or any fixed period of time. See Drake v. Wild, 65 Vt. 611, 27 Atl. 427. "Laches" also involves prejudice, actual or implied, resulting from the delay. It does POWERS, J. When this case was here on not arise from delay alone, but from delay the demurrer (Wilder's Ex'x v. Wilder et al., that works a disadvantage to another. Chase 75 Vt. 178, 53 Atl. 1072), it was held that on v. Chase, 20 R. I. 202, 37 Atl. 804; Farr v. the case made by the bill the court of chan- Hauenstein, 69 N. J. Eq. 740, 61 Atl. 147; cery had jurisdiction, and that the oratrix Hartford v. Mechanics' Sav. Bank, 79 Conn. was entitled to subrogation to the Hubbard 38, 63 Atl. 658; Parker v. Bethel Hotel Co., mortgage to the extent that the testator was 96 Tenn. 252, 34 S. W. 209, 31 L. R. A. 706; bound to pay to protect his life estate in O'Brien v. Wheelock, 184 U. S. 450, 22 Sup. the mortgaged premises. The cause was re- Ct. 354, 46 L. Ed. 636; 5 Pom. Eq. § 21; manded, the defendants filed their answer, Coleman v. Whitney, 62 Vt. 123, 20 Atl. 322,

66 Atl. 888.
on the one hand, limitations, nor, on the
other, is it estoppel, though it partakes of
the characteristics of both. Under our prac-
tice these two defenses are not governed by
the same rule of pleading. It is expressly
held in Sherman & Adams v. Windsor Mfg.
Co., 57 Vt. 57, that the statute of limitations
may be availed of by demurrer when the ob-
jection appears on the face of the bill; while
in Gleason v. Carpenter, 74 Vt. 399, 52 Atl.
966, it is just as expressly held that the de-
fense of laches cannot be interposed by de-
murrer. The case of Drake v. Wild, supra,
has sometimes been thought to be out of
harmony with these cases, but it is not. It
is therein held that the statute of limitations
did not apply, but there is no intimation that
the question was not properly raised by the
demurrer; while it is expressly held that
the defense of staleness cannot be so raised.
"When a defendant," says the court, "relies
upon lapse of time, or a presumption aris-
ing therefrom, but not upon the absolute bar
of the statute of limitations, he must plead
or answer the facts"-thereby drawing the
very distinction which the writer is attempt-
ing to point out. It is sometimes said that
the reason for requiring the defense to be
pleaded is to give the plaintiff an opportun-
ity to amend his bill and excuse the delay.
16 Cyc. 176. It follows that the defendants'
opportunity to avail themselves of the stat-
ute of limitations passed when the demurrer
was disposed of. It is not claimed that we
should construe the allegations of the answer
as setting up the defense of laches-and it
could not well be, considering the form of the
allegations and the fact that it is apparent
from the decree that no such claim was
made in the court of chancery.

As a defense "laches" is not, | 77 Vt. 123, 59 Atl. 197, 107 Am. St. Rep. 754;
but the practice there referred to has not
been extended to exceptions to answers, and
the rule is that, if the matter is improperly
ordered to be expunged as impertinent, the
party against whom the order is made is
without remedy, though the other party is
not so situated, for he could take advantage
of the impertinence at the hearing. Davis
v. Cripp, 2 Younge & C. 443. There is an
added reason why, in this case, the defend-
ants' position is untenable, and that is that
the decree below was according to the agree
ment of the parties, and it appears that no
claim was then made by the defendants that
paragraph 30 should be considered or covered
by the decree, and it was not in fact passed
upon. So the defendants must be held to
have waived it.

3. The master's report established enough of the material allegations of the bill to make a proper case for subrogation, and to bring the case well within the former decision. The defendants filed exceptions to the report which require brief consideration:

(1) The oratrix was admitted as a witness, and the defendants then objected and now insist that she was incompetent under P. S. 1589. It is true that she will or may be benefited by the result of this litigation, but that benefit will come, if it comes at all, through the will of George W. Wilder. She is not, in any proper sense, the "other party” to any contract or cause of action here in issue and on trial. These all relate to matters which transpired long before she came into the Wilder family.

(2) We need not stop to inquire whether or not Ellen Blanchard or her husband, Willis Blanchard, were competent witnesses, for all the facts to which their testimony relateswith one exception too unimportant on the

ticed-are expressly admitted by the answer to be true. So proof thereof was unnecessary, and the error in receiving the testimony of these witnesses, if any, was harmless.

(3) The finding that George W. Wilder was a surety on the mortgage note is fully sustained by the evidence. The very circumstances of the original transaction between Hubbard and the Wilders compel the conclusion that, as between Wilder and his wife, the debt was hers to pay. Stevens v. Goodenough, 26 Vt., at page 683.

2. The defendants insist that they are entitled to have the fifth exception passed up-question of the right of subrogation to be noon. Paragraph 30 of the answer set out certain facts, apparently independent of those alleged in the bill, which it was claimed gave rise to an equity in favor of the estate of George W. Wilder to have a decree for certain real estate standing in the name of the widow, Caroline, the oratrix in this suit, which equity, it was claimed, should be adjusted in these proceedings, and the defendants asked leave to file a cross-bill in respect thereto. The fifth exception was taken to this paragraph, and, while it has not been furnished us, it is plain enough that it was put upon the ground that the matters alleged were not pertinent to the case made by the bill. The exception was allowed, and the question was not in terms reserved. The defendants amended their answer by striking out the paragraph referred to, in compliance with the chancellor's order. They now claim that the question was reserved by implication, and call attention to the rule relating to demurrers announced in Westminster v. Willard, 65 Vt. 266, 26 Atl. 952, and affirmed

(4) The master's failure to find that the conveyance to Maria was not to her sole and separate use is not important or harmful. An inspection of the instrument discloses that her estate was not so limited, and it is a question for the court to decide. Besides, all agree that this is the effect of the deed as drawn.

(5) The exception to the finding that George W. paid off the mortgage to protect his own estate is without merit. The evidence on

must be presumed that it was sufficient. The finding itself is not inconsistent with the other facts found or with the testimony recited. The same may be said of the exception to the finding that the payment was not intended as an advancement.

(6) Neither the validity of the mortgage nor the rights of the oratrix thereunder depend in any degree upon its record. Its execution and delivery were enough to fix the rights of the parties to it, and their representatives here.

4. The decree below was too large. It included interest on the Hubbard debt from the

sion of whether he was custodian of money and
lost it, only raised the question of the sufficiency
of the evidence to sustain the verdict.

Error, Cent. Dig. § 1644; Dec. Dig. § 274.*]
[Ed. Note.-For other cases, see Appeal and

Exceptions from Superior Court, Belknap
County.

Action by Emma L. Wilmot, executrix, against Edwin L. Vannah. Verdict for plaintiff, and case transferred from the superior court on defendant's exceptions. Exceptions overruled.

The plaintiff claimed that the defendant date of the death of Maria A., February 8, wrongfully took the money from Mrs. Van1878, to the date on which George W. actual-nah during her last sickness, or that the ly paid it, January 27, 1880. During that in- deceased constituted the defendant custodian terval the interest on the debt was Wilder's of the money, and that he was negligent in to pay. After the death of Maria he was caring for the same, and that he refused to tenant by the curtesy, and it was therefore pay it to the plaintiff. The plaintiff's evihis duty to keep down the interest. Doane dence tended to sustain these claims. v. Doane, 46 Vt. 485. So the basis of the defendant denied that he had any money in his hands belonging to the estate, and claimed that it had been stolen by his

decree should have been the amount due on

brother.

The

the Hubbard mortgage at the date of the death of Maria A. That part of the decree which calls for a conveyance is inapt and At the close of all the evidence, the deunnecessary. In all other respects the defendant's motion that a verdict be directed in

cree is correct.

his favor was denied, subject to exception. The pro forma decree is affirmed, and the The court instructed the jury that if the decause remanded, with directions to alter the ceased constituted the defendant the custodecree so as to exclude therefrom the inter- dian of her money, and he negligently lost est on the Hubbard note from February 8, it, he was liable. The defendant excepted to 1878, to January 27, 1880, and the provision the submission of this proposition to the therein for a conveyance from the defend-jury, on the ground that there was no eviants. Let the interest and the net rents and profits from July 16, 1906, to the date of the altered decree be adjusted, and a new time of redemption fixed. The defendants to recover costs in this court.

(75 N. H. 164)

WILMOT v. VANNAH.

dence to warrant it. Upon the jury returning a verdict in favor of the plaintiff, they were inquired of by the court upon what ground they based their verdict, and they reported orally that they found that the defendant did not wrongfully take the money of the intestate, but that she had constituted him the custodian of the money, and that it was lost by his negligence. The

(Supreme Court of New Hampshire. Belknap. defendant moved to set aside the verdict

Jan. 5, 1909.)

1. DEPOSITARIES (§ 11*)-ACTIONS AGAINST
BAILEE-SUFFICIENCY OF EVIDENCE.
In assumpsit to recover money claimed to
have been delivered to defendant's custody for
keeping, evidence held to show that the money
was delivered to his custody and was lost
through his negligence.

[Ed. Note.-For other cases, see Depositaries, Dec. Dig. 11.*]

2. APPEAL AND ERrror (§ 274*)—EXCEPTIONS QUESTIONS RAISED.

Defendant's exception to a charge that if decedent made defendant custodian of her money and he negligently lost it, he was liable, on the ground that there was no evidence to warrant the charge, only raised the question of the sufficiency of the evidence to sustain the verdict.

Subject to the defendant's exception, the plaintiff was allowed to introduce evidence tending to show that at the time she made an appraisal of the estate she asked to have a certain trunk and contents appraised as the property of the intestate, but that the defendant objected thereto, claiming the trunk and the contents as his private property, while she claimed that it contained effects of the estate; that finally he was compelled by the appraisers to open the trunk, and that

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1631; Dec. Dig. § 274.*] 3. APPEAL AND Error (§ 274*)-EXCEPTIONS- It contained certain articles which the plainQUESTION RAISED.

tiff claimed belonged to the estate, and which the defendant claimed belonged to him.

Where a verdict against defendant was based upon a finding that he was custodian of money and negligently lost it, his exception to the denial of a motion to set it aside, on the ground Arthur A. Tyler and Stanton Owen, for that the evidence did not warrant the submis- plaintiff. Walter S. Peaslee, for defendant.