FELLOWS et aZ.v. HYMAN etal. LOOKER
(Oircuit (Jourt, D. Oolorado. J anuarv 2, 1888.)
LACHES-'-WHAT CONSTITUTES-DELAY IN. BRINGING SUIT.
In an action to avoid a conveyance of mining lands. alleged to have been procured by fraud, from plaintiff's ancestor. it was shown that the ancestor died soon after. without knowledge of the fraud, and for 18 months prior to the suit plaintiffs lived in California, and knew. nothing of the land, or wh.at was going on in this state; but immediately on getting info.rmation of the fraud, proceeded to investigate it, ann brought suit in a few days-a little less than three years from the· date of the conveyance. Held. on demurrer·. that this was not such laches as ought to deprive of the right t08ue.
In Equity. On demurrer. . Bill filed by plaintiffs, Julia Fellows and others, against defendants, Danie}·M. Hyman and Charles Burns, to set aside a deed conveying an · interestin mining lands, made by the father of plaintiffs, since deceased. Defendants' demurrer overruled.· C. lWckwell, for complainants. C. J.,Hughe8,: Jr., for defendants. BREWER, J. In the case of Julia Fellows against Daniel,M. Hyman the demurrer was argued yesterday, in which the only question discussed was the one reserved by Judge HALLETT for consideration before· me, that of laohes. Complainants have filed an amendment to their Gomplaint, in which they stateIIlore at length the circumstances which delayed the bringing of this suit.. The defense of laches is one peculiar to a court of equity, and is enforced wherever, from the delay of the complainant in the bringing the suit, it would be inequitable to enforce the specific right. There is no fixed period of time which courts require as constituting laches. Each case stands on its own peculiar circumstances, and yet there are two kinds of cases between which there is a marked distinction. One is where the complainant was under a contract or other obligation to do something at a particular time,and omitted to do it at that time; as, for instance, where there is a contract to convey real estate, in which complainant has failed to make payment at the very time specified in the contract; there the complainant is at fault, and courts oftentimes will refuse specific performance, even though the delay has been short, 'if by reason of any changed condition in the relation of the parties, or the value of the property. it would be inequitable to enforce specific performance. The other case is where the defendant is at fault; where he is guilty of some fraud or other wrongful conduct by which he has obtained a title which, but for his fraud or misconduct, he would not have obtained. In cases like that, courts do not enforce the rule of laches with any great strictness, and certainly do not enforce it if the complainant commences his suit
within a reasonable time after the knowledge of the fraud or misconduct. Now, this case is in the latter Class. The bill charges that the defend· ant, by fraudulent representations, obtained, in January, 1884, the title to an interest in certain mining "pr.operty. This suit was not brought until nearly three years thereafter; but complainants show that within a 'few weeks after the making of the deed which was made by their an· cestor, he died, ignorant of the fraud which had been perpetrated, and that, for 18 months prior tothe:commencement of this suit, they have resided in. California, most of tb,'e' in the rural districts 'If that state; that they have had little communh:ation with Colorado, have not seen the papers'of this state, and ofwhat was transpiring with remained in ignorance until reference about the twenty-fifth day. of November, 1886, when information was friend here, which induced one of these received by letter from and immediately on makcomplainants to come and make ing investigations, and withi:n 12 days after, reaching this suit was brought. So thatit is' aica!l6ifnvhich the defimdant,by fraudulent · representtttions, by his own mi800nduct; obtained title to t4is property, and theoorilplainants; withins.'very few days after, ascertairiingthe fact of that fraud, and of these fraudulent representations, and of defendant's misconduct, instituted this suit. If it were an action at law; the familiar rule is that the statute of limitations does not commence to run until the discovery of the fraud; and in equity, it certainly will not do to apply a harsher "lfule, "and 'say that' lachijswill be imputable when. the ooinmences his suit hnmediatelyafter the discovery of the fraud. Not only docomplainaritsaverabsolute ignorance of the fraudulent J.:epre. sentatiana, but they show a state of affairs which renders their continued" ignorance wholly reasonable, and such as might be expected ·. They. were absent from the state while that litigation, which has becmne notorious, · here, was pending; and, by their 'residence, and their lack of comJl1u· not well be nicationswith Colorado, they were so situated that it otherwise than that they should remain in ignorance of what was going on·. Now, under circumstances like that, the fact that since, the sale of the' property; through, perhaps, the active efforts of the defendant, has become enormously valuable, isnotauch a change in the of. affairl" as relieves defendant fromfresponsibility tor his misconduct or., for his liability to place the parties back in the situation in which they would have been but for his misconduct. The bill setsQut at lengtb. two lawsuits which havebeefi.pending in regard to this propgrty,-one a controversy' affecting the title to part of it"a controversy depending upon the validity ofthe location made by the ancestor of these complain... ants" in conjunction with others; a litigation pending yea.rs before the, sale was made and which is still unfinished. Now I the existence of that litigation was a matter which was known totha parties at the time of the, sale. The fraudalent representations charged had no relation to the facta involved in that litigation; itsexilltence, in no manlier, would tend to create a suspicion of unfairness. There was nothing in it which would disclose or suggest any misconduct on the part of the defendant, or throw.
SHEFFEY V. BANK. OF LEWISBURG.
upon complainants, or their ancestor, the duty of investigating to see whether there was misconduct on defendant's part. The other litigation -that which affects the value of the property, in which, as averred, there l;Jas been large expenditures by defendant-was a litigation whioh llrOse after complainants had left the state, and has been carried on during ·their absence; and of which they were ignorant. Now, while it may be true tliat all this litigation, this enormous expenditure of money, this development of the pl"operty, has made it very valuable, yet that bas happened without the slightest imputation of neglect, omission, or fault on the part of the complainants; and surely that changed situation, brought about by defendant, in no way relieves him from the consequences of his own wrong-doing years before this change has taken place. It seems tome, .upon the facts as stated in the bill, it cannot be held that complainants have been guilty of any laches in bringing this suit, and I shall therefore have to differ with my Brother HALLETT in his conclusions .on the bill; conclusions reached, however, it must be noticed, when he dill not have the full detail of facts, as stl.tted in the amended 'complaint, before him. I; shall therefore overrule the demurrer to the ,bill. Defendants have 30 days to answer. The case of Moker v. Hyman et al. is kindred in its nature, and the ,same order will be entered. The demurrer will be overruled, and leave to answerin 30 days.
'D. l3ANK OF LEWISBURG
(DiBtrict Oourt, D. Weat VWginia. December 1,1887.)
88-FINAL DECREE. Equity rnle88 provides that "no rehearing shall be granted after the term at which the fina decree shall have been entered and recorded." A decree of foreclosure was entered, leaVing nothing to be done but execute its provisions. At the next term of the court a petition for rehearing was filed, and upon hearing the decree was ordered to be vacated. Held that, as it was a final decree. it was not affected by the order.
'2. DEED-REooBI>ING-P!troRITY. One G. a deed of trust to secure certain debts to the complainants, who recorded It. The same day defendants, five hours later, recorded a deed of trust on the same property from G., given them a month before. Held, that in the absence of actual notice of tlie existence of the former trust deed to the complainants, their deed of trust had the priority. 8. SAME. One G. made a trust deed to complainants for the benefit of his creditors, for v,endor's lien judgments and other paraproviding as preferred mount liens. 'Ile had given a trust deed on some of his real estate to defend· ants. who had not recorded it. Held. that it was not a paramount lien at the date of execuiion of the deed to complainants.
In Equity. Bill to restrain sale of land under a trust deed. Sheffey and Bumgardner; filed a bill against the Bank of Lewisburg and others. defendants, to restrain a sale of real estate·under a trust deed, claiming they had a prior lien on the land.