A preliminary injunction was issued on January 10, 1983, restraining Mrs. Aniello from proceeding with the foreclosure sale of Parcel One. After foreclosure of Parcels Two and Three on March 25, 1983, there remains due on the Sheehan note and mortgage, so Mrs. Aniello claims, about $30,000 plus interest from September, 1981. The trial judge made no finding about the precise amount of the deficiency on the second mortgage. The facts already summarized are set forth in a statement of agreed facts (not amounting to a "case stated") and in findings by the trial judge on evidence presented before him. He concluded that the case was governed by Stewart v. Bass River Sav. Bank, 3 Mass. App. Ct. 574 (1975), saying that "the house was not intended to continue as security under the . . . [second] mortgage once the [first] mortgage . . . was paid." He ordered judgment for Mrs. Sheehan restraining Mrs. Aniello permanently from foreclosing on Parcel One and directing her to release Parcel One from the second mortgage. From the judgment thus entered, Mrs. Aniello has appealed.
Tetrault v. Fournier, 72 N.E. 351, 351 (Mass. 1904) (finding that a mortgagor's claim was barred by laches where the mortgagor waited ten years after the sale to file suit and did not provide a sufficient reason for the delay); Learned v. Foster, 117 Mass. 365, 369 (1875) (finding that, because the "right to avoid the sale will be treated as waived unless asserted within a reasonable time," a suit brought thirteen years after a defective foreclosure sale is barred as untimely); Stewart v. Bass River Sav. Bank, 336 N.E.2d 921 (Mass. App. Ct. 1975) (dismissing a suit brought sixteen years after a foreclosure sale because the delay prejudiced the defendant and "[i]t would have been inequitable to permit the plaintiff the remedy he now seeks when the facts on which he based his later claim were known to him at the time he first brought the bill"). In this case, however, Plaintiffs brought suit within two days of the foreclosure sale of the Property.
Other states also recognize that a court, in its discretion, may invoke the doctrine of laches as a matter of law. See, e.g., Stewart v. Bass River Sav. Bank, 3 Mass.App.Ct. 574, 336 N.E.2d 921, 925 n. 2 (1975) ("Although not pleaded, a judge may sua sponte find and rule on the basis of laches where justice so requires") (emphasis added); Becker v. Becker, 56 Wis.2d 369, 202 N.W.2d 688, 691 (1972) (noting that the defense of laches must be pleaded in the answer as a matter of affirmative defense "unless laches appears obvious from the face of complaint"); Rutt v. Frank, 186 Neb. 842, 186 N.W.2d 911, 915 (1971) (asserting that facts constituting laches should normally be pleaded, but a court of equity may deny relief on the ground of laches when admissible evidence together with plaintiff's pleading shows laches); Wallace v. Timmons, 232 S.C. 311, 101 S.E.2d 844, 847 (1958) (stating that in a proper case, the defense of laches can be considered by a court on its own motion, even though not pleaded, since "[i]t is not necessary to set up laches in a formal manner"); Baslego v. Kruleskie, 162 Pa.Super. 174, 56 A.2d 377, 379 (Pa.Super.1948) (noting that where fact of laches appears in the eviden
Restitution can include the equitable remedy of reconveyance. Cf. Bakwin v. Mardirosian, 467 Mass. 631, 639 (2014) (ordering equitable remedy of reconveyance); Stewart v. Bass River Sav. Bank, 3 Mass.App.Ct. 574, 578-579 (1975), quoting Lonergan v. Highland Trust Co., 287 Mass. 550, 559 (1934) ("order of reconveyance was within the judge's equitable power as 'equity regards that as done which ought to have been done'").
There is no sound reason to vacate the stipulation. Compare with Stewart v. Bass River Savings Bank, 3 Mass.App.Ct. 574, 579 (1975). At the hearing on the present motions, this jurist pressed counsel for KOC as to what remedy he sought: was he asking the court to vacate the foreclosure sale? Counsel had no cogent response.
Even were the Kattars to prevail on all of the above issues, moreover, it is far from clear that plaintiffs should be entitled to the mandatory injunctive relief which they seek, i.e. restoration of their legal title to the property in addition to the monetary damages (which they were awarded by the jury on the breach of contract claim, and by Judge Roseman on the c. 93A claim). In Stewart v. Bass River Savings Bank, 3 Mass. App. Ct. 574, 579 (1975), the Court said in that respect: It has been said, however, that "[s]pecific performance is not a matter of absolute right. It ought not to be granted if it would result in imposing an undue hardship upon one party to an agreement or permit the other party to obtain an inequitable advantage.
Even were the Kattars to prevail on all of the above issues, moreover, it is far from clear that plaintiffs should be entitled to the mandatory injunctive relief which they seek, i.e. restoration of their legal title to the property in addition to the monetary damages (which they were awarded by the jury on the breach of contract claim, and by Judge Roseman on the c. 93A claim) In Stewart v. Bass River Savings Bank, 3 Mass. App. Ct. 574, 579 (1975) the Court said in that respect: "It has been said, however, that `[s]pecific performance is not a matter of absolute right. It ought not to be granted if it would result in imposing an undue hardship upon one party to an agreement or permit the other party to obtain an inequitable advantage.