85 W. Va. 46 | W. Va. | 1919
By three successive but vain efforts made in 1912 and in June and November of 1918 plaintiff endeavored to obtain a decree declaring a deed made by him to his brother, David T. Browning, for 50 acres of land in Logan County to be a mortgage to secure' the payment of $600 to the grantee, rather than a grant to him of the land in fee simple absolute, as on its face it purports to be. The deed, the acknowledgment and recordation thereof bear date as of August 7, 1903, the consideration expressed therein being “one dollar and other considerations” in hand paid, the receipt of which is acknowledged. Sometime during the early part of October, 1912, it appears from the allegations of the bill demurred to, plaintiff tendered defendant $600 and the interest that had accrued thereon in the meantime, and demanded a reconveyance of the land “pursuant to the agreement and understanding” had between them in 1903, but the grantee declined to accept the money tendered and to execute the re-conveyance demanded. Thereupon ensued the first suit, which on November 4, 1912, plaintiff voluntarily dismissed, reserving in the dismissal order the right to institute ■ and prosecute another suit based upon the same cause and for the same relief. This dismissal, according to the allegations of the bill, was due to the intercession of the father of the grantor and grantee with the expectation of effecting a compromise and amicable settlement of the matters in controversy between them, but which they failed to consummate. Plaintiff then brought this suit at July rules, 1918, and to the bill then filed defendant demurred, and the court sustained the demurrer and dismissed the suit without reservation. Later in the same year plaintiff filed a bill of review for error apparent upon the face of the record, which terminated likewise upon defendant’s demurrer thereto. Bfence this appeal.
The only ground assigned as cause of demurrer to the second bill, as appears from the order of dismissal, and the only
Whether this equitable doctrine does or does not apply to defeat enforcement of the right asserted is not always to be determined merely by a consideration of the time that has elapsed since the accrual of the right to sue. Cranmer v. McSwords, 24 W. Va. 594; Depue v. Miller, 65 W. Va. 120. Unless accompanied by circumstances affording a reasonable basis for presuming an intention on the part of the plaintiff to abandon the claim asserted in the suit, or such as makes the transaction out of which the claim is said to hg.ve arisen obscure, or renders it difficult, if not impossible, to produce evidence to defeat the claim and thereby prevent injustice, the mere postponement of the assertion of the claim does not ordinarily warrant refusal of relief in equity. Tazewell v. Saunders, 13 Gratt. 354; Tidball v. Shenandoah Nal’l Bank, 100 Va. 741. If no substantial obstruction probably will appear to defeat a fair investigation of the merits of the claim preferred, and a just ascertainment of the rights of the parties with respect thereto, the doctrine of laches, does not apply. Whitlock v. Johnson, 87 Va. 323, 333. While it is a sound and salutary rule that he who resorts to a court of equity to enforce his rights must do so within a reasonable time, all things considered, and if he negligently, unreasonably and unjustifiably delays the prosecution of his demand until there is such a change or alteration in the condition or situation of the parties, as by death or loss of evidence incident thereto, or such as may work injustice to either interested jparty by reason of insolvency or other untoward circumstances, or where to enforce the claim would operate to the prejudice of purchasers .for value without notice, actual or constructive, the bar does apply (Smith v. Thompson, 7 Gratt. 112; Despard v. Despard, 53 W. Va. 443), yet the rule is not inflexible.
Such procrastination continued for seven years was held in Pethtel v. McCullough, 49 W. Va. 520, to be insufficient to warrant the dismissal- of a suit on the ground of lack of due diligence in prosecuting it, where the parties to the transaction still survived; and in some cases the same rule may apply though one or both parties thereto may be dead. Alexander v. Byrd, 85 Va. 690; Beverly v. Rhodes, 86 Va. 415. And while it is un
Was there such a recognition of the validity of the claim of the plaintiff as these authorities say excuses the delay now relied on to defeat the relief sought by plaintiff in this suit? David T. Browning, the grantee in the deed, seems to have died sometime in the year 1915 (see Record p. 28,) leaving surviving Minerva Browning, his widow, and Millard P. Carson, Oakey, Dewey, Tweel and John R. Browning, his children and heirs at law, all of whom are defendants' to this suit, the five children last named being infants and represented by Ira P. Hager, guardian ad litem duly appointed by the court.
Though David T. Browning did refuse in ,1912 to accept the money tendered him by the plaintiff, and to reconvey the land when such conveyance was demanded by the plaintiff, according to the allegations of the bill, yet it likewise appears from the bill that plaintiff was required to join, or for some reason did join, in the execution of a deed conveying a railroad right of way through the 50 acres to Cole and Crane in February, 1913. This he did inferentially, as we may presume, because of the claim now set up respecting the nature and purpose of the negotiations terminating in the deed of August 7, 1903, between the two brothers. Indeed plaintiff’s joining in the execution of the Cole and Crane deed, ten years after the deed of 1903, is not and perhaps cannot be explained on any other hypothesis than that he then insisted upon his right to the consideration agreed upon by the parties to that transaction. That he did so at that time and for that reason and none other is emphasized by the further fact that
Besides, the bill explicitly charges and the demurrer admits that the $600 paid to Alderson was “'to be held by him-in trust and eventually paid to the party legally adjudicated to be the rightful owner of said lands,” and that, although later directed by the court to be paid to Minerva Browning, the widow and administratrix of David T. Browning, said sum and interest thereon accrued and to accrue is the money of the plaintiff, and to be accounted for to him or credited upon the debt secured by the" deed from him to his brother treated as a mortgage, when the amount thereof is ascertained.
As said in Depue v. Miller, 65 W. Va. 120, “if the right of the plaintiff is clear and not dependent upon oral evidence, and no injury or prejudice to the defendant has resulted' from the delay, as by the death of parties, change of conditions, loss of evidence, or the like, the cause of action is not barred by laches unless the lapse of time and circumstances are such as to raise a presumption of intent on the part of the plaintiff to abandon or relinquish the right.” Store the death of the grantee in the deed of 1903 out of which has arisen this controversy operates to some extent alike to the prejudice of both parties. Neither of them can explain the circumstances under which the negotiations leading up to the deed occured or the purpose which it was intended to serve, that is, whether it is what it purports to be, a conveyance of the fee simple title without any incon
. And while David, T. Browning and his wife on January 15, 1915, granted to the defendant A. J. Dalton another part but not all of the residue of the tract, and they alone joined as grantors therein, the bill alleges and the demurrer admits that Dalton had full knowledge and notice that plaintiff claimed title to the tract subject only to the payment of the debt to his brother. If plaintiff can by proof establish the fact to be as he has alleged, Dalton cannot complain if he loses the benefit of his purchase, for such knowledge effectually disqualifies him to invoke the aid of the rule which seeks to protect a purchaser for value without notice.
The observations respecting laches are to be understood only .as made in the light of the allegations of the bills considered •upon defendants’ demurrers. What the proof may develop, if the cause proceeds to final hearing upon the merits, we cannot of course foresee, and therefore do not pretend to say whether the laches of the plaintiff, if any, is such as precludes the grant to 'him of the relief he seeks. We are therefore of opinion to reverse the decrees entered in the cause, the first at the October term, 1918, the second on ^February 4, 1919, of both of which
Reversed. Demurrers overruled. Cause remanded.