30 W. Va. 182 | W. Va. | 1887
Suit in equity commenced in January, 1884-, in the Circuit Court of Hampshire county, by Elizabeth Curlett against
It is unnecessary to consider or decide whether or not W. C. Newman could appeal from said decree, since the right of Elizabeth Nesmith to maintain this appeal is 'unquestionable ; and as her interests and those of said Newman are identical, the reversal of the decree as to her must operate
The matter complained of by the plaintiff' is, that the name of Elwood Parsons was- not mentioned in the deed as-oné of the grantees, and that,.by the fraud of John C. Newman, he alone was made grantee. The plaintiff, of course,, was incompetent to testify as to the execution of the deed in this cause, and a fortiori it was incompetent to offer the testimony of other witnesses as to her declarations respecting-that transaction. Excluding the proof of such incompetent declarations, there is really no evidence of any misrepresentation, imposition or-fraud in the procurement of the deed. On the contrary, the only witness who testifies on the subject of the execution of the deed is the justice who took the acknowledgment, and he says, that when he^called, at the instance of John 0. Newman, at the house of the plaintiff to take her acknowledgment of the deed, “ there was something said as to the nature of the deed, but very few words, as well as I can recollect. She stated, that she knew what she was signing, her interest in that estate to John C. New-matil” .'-And on cross-examination, he says he is certain that the plaintiff said the deed was to John 0. Newman. In none of the testimony is there anything to show, that Elwood Parsons was to be a grantee in the deed, or that there was any mistake or fraud in its procurement or execution. It seems, however, from the recitals in the decree of the Circuit Court, that the deed was set aside because of the situation and relation of the parties at the time it was made. It is shown, that John C. Newman was the nephew of the plaintiff, and for a number of years had resided in her family, managed the farm and her other business affairs, and that she had great affection for and confidence in him. The-counsel for the appellee insists, and such appears to have-been the conclusion of the court below, that these facts establish Such intimate and confidential relations between the grantor and grantee of the deed as would render the deed voidable in law at the will of the plaintiff. In other words,, it is claimed, that the relation of the parties- here was such-as to bring this deed within the doctrine of this Court, as-
But there is another fatal objection to the success of the plaintiff in this suit. Delay in the assertion of right, unless satisfactorily explained, operates in equity as evidence of assent or waiter; and especially is such the case in suits to set aside contracts on account of fraud or infancy. Courts of equity, which are never active in granting relief upon stale demands, will always refuse relief where the party has slept upon his right and acquiesced a great length of time, and until the death of the party charged with the fraud. Pusey v. Gardner, 21 W. Va. 469; Trader v. Jarvis, 23 W. Va. 100. The‘deed here sought to be impeached was made in July, 1879; the grantee who is now charged with fraud in its procurement lived more than four years there
Upon the whole case, I am clearly of opinion, that the decree of the Circuit Court is erroneous, and should be reversed and the plaintiff’s bill dismissed.
DISMISSED.