Grey, V. C.
The effect of the demurrer is to admit the truth of all the facts narrated in the complainants’ bill, which are well pleaded. It is sufficiently averred that the complainants raised all of the purchase-money to buy a tract of land; that the defendant did not contribute any portion of the purchase-money, but in writing agreed with the complainants that he would accept a conveyance of the land and would convey it to a corporátion which was, with his aid, to be formed; would receive the stock of that corporation to lie issued in payment for the conveyance, and would turn over the same to the complainants, or to the persons named in the written agreement.
It is also admitted by the demurrer, because sufficiently alleged in the bill of complaint, that, having under these circumstances received the conveyance of the title, the defendant, for the purpose of extorting money from the complainants, held the title and refused to convey the same in accordance with his agreement; that he refused to aid, as he had agreed to do, in the formation of the proposed corporation and to receive and distribute the stock in exchange for the conveyance of the title. That he continued to refuse until an action was brought by bill filed in this court; that he refused to. appear to the action in question and no jurisdiction was obtained over him because he was a non-resident.
The demurrer also admits that the defendant is financially irresponsible, and that he could not be compelled to convey the premises wrongfully withheld by him without resulting delays, [169]*169which he knew would subject the complainants by loss of interest .and the inability to use their property to great damage and injury; that in furtherance of his original purpose to extort money, to which he was not entitled, from the complainants, the defendant required and forced the complainants, in order to avoid the losses which would result from his willful delay in •carrying out the plan which he had agreed to aid, to consent to the deposit in escrow.of the instruments which he had originally agreed to execute and deliver without price, upon the terms that $500 should be paid to him in cash and that an additional $1,000 should be secured to be paid to him within six months thereafter by his retention of a portion of the lands to which he held the title and which he had agreed, as stated, to convey without price to the new company.
These facts are, all of them, pertinent to the relief sought by the complainants’ supplemental bill and may justly be said to be well-pleaded allegations. By admitting them to be true, the demurrant confesses that he received the title in question upon a trust, declared by him in writing, whereby he agreed to make a certain disposition of that title. He also admits that for the purpose and with the intention to extort from the complainants sums of money which they did not owe him, and which were in no manner or way due or payable to him, he has abused the confidence so reposed in him and has by such extortion actually received $500 in cash in breach of his trust, and has retained a part of the land, which by his trust he was obliged to convey without charge, as a means of extorting the payment of the additional sum of $1,000. The complainants, in their supplemental bill of complaint, designate the defendant’s demand for, and compulsion of payment of this money, as blackmail. It is difficult (taking the facts admitted by the demurrer to be true) to see wherein this designation is an injustice.
The- first ground of the demurrer alleges that it appears by the supplemental bill- that the matters and things in issue between the parties, set forth in the original bill, have been settled and the suit ended, and that there is not now any suit [170]*170pending on the original bill, &c. The counsel for the demur-ant in argument contends that the moneys paid, and secured to be paid, by the complainants, were by them expended or secured to settle a pending litigation, and that they are not recoverable even if the defendant’s claim (which was the cause of the litigation) could not be sustained, and that the litigation was ended by the arrangement between the parties.
This ground of demurrer is, however, untrue in fact, for it does not appear by the supplemental bill that the payment of $500 in cash and the retaining of part o£ the land as security for the $1,000, to be paid in the future, were agreed and arranged to be paid and secured in settlement of the suit, nor does the supplemental bill anywhere show that those steps ended the litigation pending when they were taken. On the contrary, the acts of the defendant with respect to these payments are, by the supplemental bill, alleged to have been part and parcel and in aid of his original purpose to retain the title to the land in question until he was, by any process available to him, able to> extort moneys from the complainants, which were in no way rightfully due or payable to him, and that the $500 and the promise to pay the $1,000 were forced from the complainants in pursuance of the defendant’s original purpose to cheat them. By the demurrer the defendant has admitted these allegations to be true.
It is the defendant who, by the demurrer itself, introduces the statement that the payment in cash of the $500 and the securing of the $1,000’by the retention of a part of the land were in settlement of the original suit and that said suit is no longer pending. Ilis pleading not only thus introduces a new fact into the record, but having so brought in the new fact, he makes it a ground for challenging the complainants’ bill.
The second ground of demurrer is that it appears by the supplemental bill that
“the complainants did receive from this defendant the deed referred to, in consideration of the $500 cash and the further sum of $1,000, and that the supplemental bill does not allege any offer or readiness by said complainants to reconvey the said premises conveyed by this defendant to said complainants in exchange for said payment and agreement for further payment,”
[171]*171and that the complainants have thereby failed to offer to put the defendant in the position in which he was prior to the making of said deed, which in equity he must offer to do before he can obtain any relief in this court.
This ground of demurrer misrecites the facts narrated, in the supplemental bill. That bill does not state that the deed in question was received by the complainants, or that it ever came into their possession. All that is alleged regarding the actual delivery of the deed out of escrow is that “the deed of the property was obtained and the same is now recorded,” &c., but the bill does not state by whom it was obtained or recorded. It may have been, and presumably was, delivered to the grantee named in it.
The demurrer again misrecites the statements of the supplemental bill, for that bill does not allege that the defendant conveyed the property in question to' the complainants, as is stated in the demurrer; on the contrary, there is an express allegation that the deed conveyed it to the newly-incorporated company, the “Urban and Suburban Eealty Title Company.”
The demurrer, in the several particulars enumerated, restates facts differently from the allegations of the supplemental bill and makes the new facts thus introduced the ground of criticism of that bill.
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Grey, V. C.
The effect of the demurrer is to admit the truth of all the facts narrated in the complainants’ bill, which are well pleaded. It is sufficiently averred that the complainants raised all of the purchase-money to buy a tract of land; that the defendant did not contribute any portion of the purchase-money, but in writing agreed with the complainants that he would accept a conveyance of the land and would convey it to a corporátion which was, with his aid, to be formed; would receive the stock of that corporation to lie issued in payment for the conveyance, and would turn over the same to the complainants, or to the persons named in the written agreement.
It is also admitted by the demurrer, because sufficiently alleged in the bill of complaint, that, having under these circumstances received the conveyance of the title, the defendant, for the purpose of extorting money from the complainants, held the title and refused to convey the same in accordance with his agreement; that he refused to aid, as he had agreed to do, in the formation of the proposed corporation and to receive and distribute the stock in exchange for the conveyance of the title. That he continued to refuse until an action was brought by bill filed in this court; that he refused to. appear to the action in question and no jurisdiction was obtained over him because he was a non-resident.
The demurrer also admits that the defendant is financially irresponsible, and that he could not be compelled to convey the premises wrongfully withheld by him without resulting delays, [169]*169which he knew would subject the complainants by loss of interest .and the inability to use their property to great damage and injury; that in furtherance of his original purpose to extort money, to which he was not entitled, from the complainants, the defendant required and forced the complainants, in order to avoid the losses which would result from his willful delay in •carrying out the plan which he had agreed to aid, to consent to the deposit in escrow.of the instruments which he had originally agreed to execute and deliver without price, upon the terms that $500 should be paid to him in cash and that an additional $1,000 should be secured to be paid to him within six months thereafter by his retention of a portion of the lands to which he held the title and which he had agreed, as stated, to convey without price to the new company.
These facts are, all of them, pertinent to the relief sought by the complainants’ supplemental bill and may justly be said to be well-pleaded allegations. By admitting them to be true, the demurrant confesses that he received the title in question upon a trust, declared by him in writing, whereby he agreed to make a certain disposition of that title. He also admits that for the purpose and with the intention to extort from the complainants sums of money which they did not owe him, and which were in no manner or way due or payable to him, he has abused the confidence so reposed in him and has by such extortion actually received $500 in cash in breach of his trust, and has retained a part of the land, which by his trust he was obliged to convey without charge, as a means of extorting the payment of the additional sum of $1,000. The complainants, in their supplemental bill of complaint, designate the defendant’s demand for, and compulsion of payment of this money, as blackmail. It is difficult (taking the facts admitted by the demurrer to be true) to see wherein this designation is an injustice.
The- first ground of the demurrer alleges that it appears by the supplemental bill- that the matters and things in issue between the parties, set forth in the original bill, have been settled and the suit ended, and that there is not now any suit [170]*170pending on the original bill, &c. The counsel for the demur-ant in argument contends that the moneys paid, and secured to be paid, by the complainants, were by them expended or secured to settle a pending litigation, and that they are not recoverable even if the defendant’s claim (which was the cause of the litigation) could not be sustained, and that the litigation was ended by the arrangement between the parties.
This ground of demurrer is, however, untrue in fact, for it does not appear by the supplemental bill that the payment of $500 in cash and the retaining of part o£ the land as security for the $1,000, to be paid in the future, were agreed and arranged to be paid and secured in settlement of the suit, nor does the supplemental bill anywhere show that those steps ended the litigation pending when they were taken. On the contrary, the acts of the defendant with respect to these payments are, by the supplemental bill, alleged to have been part and parcel and in aid of his original purpose to retain the title to the land in question until he was, by any process available to him, able to> extort moneys from the complainants, which were in no way rightfully due or payable to him, and that the $500 and the promise to pay the $1,000 were forced from the complainants in pursuance of the defendant’s original purpose to cheat them. By the demurrer the defendant has admitted these allegations to be true.
It is the defendant who, by the demurrer itself, introduces the statement that the payment in cash of the $500 and the securing of the $1,000’by the retention of a part of the land were in settlement of the original suit and that said suit is no longer pending. Ilis pleading not only thus introduces a new fact into the record, but having so brought in the new fact, he makes it a ground for challenging the complainants’ bill.
The second ground of demurrer is that it appears by the supplemental bill that
“the complainants did receive from this defendant the deed referred to, in consideration of the $500 cash and the further sum of $1,000, and that the supplemental bill does not allege any offer or readiness by said complainants to reconvey the said premises conveyed by this defendant to said complainants in exchange for said payment and agreement for further payment,”
[171]*171and that the complainants have thereby failed to offer to put the defendant in the position in which he was prior to the making of said deed, which in equity he must offer to do before he can obtain any relief in this court.
This ground of demurrer misrecites the facts narrated, in the supplemental bill. That bill does not state that the deed in question was received by the complainants, or that it ever came into their possession. All that is alleged regarding the actual delivery of the deed out of escrow is that “the deed of the property was obtained and the same is now recorded,” &c., but the bill does not state by whom it was obtained or recorded. It may have been, and presumably was, delivered to the grantee named in it.
The demurrer again misrecites the statements of the supplemental bill, for that bill does not allege that the defendant conveyed the property in question to' the complainants, as is stated in the demurrer; on the contrary, there is an express allegation that the deed conveyed it to the newly-incorporated company, the “Urban and Suburban Eealty Title Company.”
The demurrer, in the several particulars enumerated, restates facts differently from the allegations of the supplemental bill and makes the new facts thus introduced the ground of criticism of that bill. All the objections made to the bill, whether in the statement of the grounds of the demurrer or in the argument of the defendant’s counsel in support of it, depend for their force not upon the allegations of the complainant in the supplemental bill, but upon the new facts introduced by the demurrant himself, in the demurrer. He thus makes the case to which he demurs.
It is a principle of correct pleading, that a demurrer can only be founded on a fact or omission appearing in the bill. It cannot set up a fact or omission not appearing in the bill and thereupon demur. Black v. Shreve, 3 Halst. Ch. 458. Such a pleading is a speaking demurrer, which cannot be sustained. Edsell v. Buchanan, 2 Ves. *83; Story Eq. Pl. *448.
Aside from this somewhat technical examination of the demurrer in question, the complainants, in view of the facts [172]*172pleaded in the supplemental bill and admitted by the demurrer, are under no obligation to tender a reconveyance of the land to the defendant as an incident of their application to this court for relief. The demurrant has, by his demurrer, admitted that he was lawfully and equitably bound to convey to the proposed new company the whole of the land in question. He has in the same manner admitted that he has wrongfully retained a portion thereof as security for a sum of money which he seeks to extort from the complainants. There is no legal or equitable obligation on the part of the complainants, taking these admitted facts to be true, to restore to the defendant the property which he- admits does not belong to him, and which he also admits he was rightfully bound to convey to the corporation which now holds the title.
The complainants’ supplemental bill must therefore be held to state a lawful cause of action against the defendant. The demurrer must be overruled, with costs, with leave to the defendant to answer the complainants’ bill within twenty days, or in default thereof the bill will be taken as confessed.