74 Mo. 561 | Mo. | 1881
Lead Opinion
This case will be considered from three points of view: The laches of Kelly in bringing this suit; the equitable estoppel which, in consequence of his conduct, has arisen against him, and his failure in the ejectment suit to urge those matters, as matters of defense, which are now relied on as grounds of equitable and affirmative relief.
I.
And first, as to the laches of Kelly. The case of Hurt v. Kelly, 43 Mo. 238, was decided by this court in January, 1869. Kelly, in the following March, surrendered possession of the premises to Hurt. The present proceeding was not begun until January, 1874, nearly ten years after the •sale, and over five years after the surrender- of possession, and about four years after defendant, with the knowledge ■of Kelly, had taken possession of the premises thus surrendered. This conduct on the part of Kelly, and other ;acts detailed in this record, are sufficient to preclude him from successfully appealing to a court of equity for relief. Nor does his petition for such relief set forth any grounds ■excusing his delay.
Courts of equity when enforcing legal or analogous rights, as in administering remedial justice they are sometimes called upon incidentally to do, will generally adopt that limit of time which is prescribed by the statute of limitations. Adams Eq., 227. But when the relief sought is based upon a right purely equitable, where it is cognizable alone in a court of conscience, then that court acts •solely upon its own inherent rules altogether outside of, and independent of the statute of limitations. As was
We need not discuss this branch of the subject at. greater length, both because its discussion is but that of discussing an elementary, familiar and fundamental prin
II.
But apart from the acquiescence and delay of Kelly, from which equity, in circumstances like the present, will deduce cogent presumptions of waiver and abandonment of a right, (Kerr on Eraud and Mistake, 308,) let us discuss the second branch of our subject. Hurt was clearing the land bought; paying taxes, both back and current; making valuable and lasting improvements, and expending large sums of money in so doing, while Kelly, cognizant of all, remains supinely and apparently indifferent. This conduct must estop him and thwart his claim for relief. Abundant authority establishes the correctness of this position. Evans v. Snyder, 64 Mo. 516; Collins v. Rogers, 63 Mo. 515; Stevenson v. Saline Co., 65 Mo. 425; Follansbe v. Kilbreth, 17 Ill. 522; Dickerson v. Colgrove, 100 U. S. 578.
We are thus brought to the third point proposed for discussion. In the frequently cited case of Foster v. Wood, 6 Johns. Ch. 86, Chancellor Kent, in considering the question whether a party, against whom judgment had been recovered at law, was entitled to come into a court of chancery for relief, said : “ The rule is, that chancery will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defense, or unless he was prevented from availing himself of the defense by fraud or accident, or the act of the opposite party, unmixed with negligence or fraud on his part.” The gist of the rule thus tersely enunciated is, that he who is sued at law and is cognizant of a defense to the action — a defense cognizable at law — cannot, if he neglect to interpose such defense, obtain in a court of equity, redress based on that, which, if pleaded in the former proceeding, would have afforded him ample and adequate protection. Let us see whether this rule will apply to the case at bar.
Our code provides that: “ The defendant may set forth by answer, as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” R. S. 1879, § 3522.
This language is identical with that of the code of New York, from whence our code was derived. Our own code, also, as well as that of New York, authorizes affirmative relief to be given by the judgment to a defendant in the action. R. S. 1879, § 3673> In that state it is held that under the present judiciary system, the functions of the courts of the common law and chancery being united in the same tribunal, the distinction between actions at law and suits in equity and the forms of such suits and actions abolished, that the defendant may by answer set
In Winfield v. Bacon, 24 Barb. 154, the court say : “It is also true, as a general rule, that the defendant who has an equitable defense to an action, being now authorized to interpose it by answer, is bound to do so, and shall not be permitted to bring a separate action for the purpose of restraining the prosecution of another action pending in the same court.” In Savage v. Allen, 54 N. Y. 458, the doctrine just quoted is approved, and it is there held that there should not be a second suit for relief where it can be obtained by defense in the first; that a proceeding to enjoin an action to restrain the prosecution of an ejectment suit, could not be maintained; that if plaintiff had any title, legal or equitable, it might and should have been interposed as a defense in the ejectment suit. In a still later case, that of Mandeville v. Reynolds, 68 N. Y. 528, the principles enunciated in Savage v. Allen, supra, are spoken of approvingly,
These, then, being the principles ordained by the code, how do they apply to, or in what manner affect, this cause T They do so in precisely this way. Before equitable defenses were cognizable at law, a party, as we have already seen, who had, and was cognizant of, his defense at law and failed to plead the same, (and in consequence judgment, was recovered against him,) could not, afterward, successfully apply to a court of chancery for relief, and this upon the obvious ground, of his remedy at law having been adequate and ample. No necessity existed for invoking the-extraordinary powers and processes of a court of chancery,, the principle being that he had his day in a court of competent jurisdiction; had a complete defense to the action was aware of that defense, and owing solely to his own negligence he failed to avail himself of it. In consequence of the changes effected by the code, as already noted, what was formerly denominated an equitable defense, is just as available, just as potent, in precluding a recovery against the party pleading it, as was a legal defense in a court of common law. The term equitable defense, as heretofore seen, is of even a broader scope and more comprehensive nature, because it includes all matters which would before have authorized an application to a court of chancery for
In the case at bar, Kelly, the defendant in the action of ejectment, was aware of and could have availed himself of the same matters of equitable defense upon which the present proceeding is now bottomed. He failed to seize the opportunity presented, and that opportunity cannot be-resuscitated by resorting to a separate suit. This is true whether we abide by the evident behests and theory of the code, or whether we apply those principles of equity jurisprudence which deny that relief which could have been obtained elsewhere. Nor is this application of those principles a novelty in this court. In Shelbina Hotel Association v. Parker, 58 Mo. 327, a suit was brought in the nature of a bill in equity to set aside an award on the ground of mistake. The plaintiff' had opportunity to have prevented the judgment on the award going against him, but he failed to do this, and in deciding that case we remarked: “After
IV.
It must not be understood by the foregoing remarks that we hold that Kelly would have been entitled to recover, even had'his equitable defense been pleaded in the original action. It is very questionable from a consideration of all the evidence, whether the sale took place in such circumstances, or was attended by such results, as would authorize its being set aside,, because it was a sale in gross, instead of one according to the smallest legal subdivisions. Benkendorf v. Vincenz, 52 Mo. 441; Carter v. Abshire, 48 Mo. 300; German Bank v. Stumpf, 73 Mo. 311. "We are not prepared, therefore, to hold that there was any error committed on this point, and so we affirm the judgment.
Dissenting Opinion
We dissent from the propositions sought to be established in the first paragraph or subdivision of the foregoing opinion. We adhere to what was said by this court on the subject of the statute of limitations and the staleness of the plaintiff’s claim, when this case was first here, (61 Mo. 463, 466,) and to