88 W. Va. 194 | W. Va. | 1921
This appeal seeks reversal of a decree of the circuit court of Wood county, which decreed to sale, in satisfaction of a judgment in favor of plaintiff’s intestate against John Cornell, a tract of 16% acres of land lying near the city of Parkersburg, claimed by the heirs of J. A. Anderson, upon the ground that said tract of land was really the property of said John Cornell, and was concealed in the name of J. A. Anderson in fraud of plaintiff’s rights.
It appears that prior to the year 1892 John Cornell was extensively engaged in the business of purchasing and manufacturing ties and other lumber, and incidentally in the general mercantile business. In that year he failed in business, and according to the allegations of the bill he has never accumulated any property since, and has never actively engaged in any business. The debt claimed by the plaintiff was contracted prior to 1892. In the year 1892 plaintiff’s decedent instituted a suit in the circuit court of Wirt county to recover the amount of the debt from said Cornell. Cornell appeared to this.suit and filed his plea of non-assumpsit, and the same was continued from term to term until the year 1897, when, in the absence of Cornell, and without the intervention of a jury to try the issue joined, a judgment was rendered against him for the sum of $4,200.00, with interest from 1892, and this judgment is the basis of the plaintiff’s claim for relief.
. Cornell and J. A. Anderson were brothers-in-law, Anderson having married a sister of Cornell. It appears, however, that Anderson’s first wife, the sister of Cornell, died long before the institution of this suit, and he had married a second time. It is not contended that any funds belonging to Cornell went into the purchase of any land in the name of Anderson after 1892, at the time of his business failure, for it clearly appears
At the time of the purchase of these lands by Anderson as above stated there was interested with him in one piece thereof a man by the name of W. B. Dillon. It was the understanding, according to Dillon, that he was to have a one-half interest in this piece of land. The title to all of the land was held by Anderson, but it appears that Dillon lived on a piece of it, and that Cornell lived with him. In 1899 this land was sold and a tract of 288 acres was purchased in Calhoun county. Dillon claims that he still had his half-interest in this 288 acres. At any rate, he and Cornell went upon this land and
It appears that in 1909 the 161/4 acres of land in Wood county was conveyed to Anderson in consideration of $8,750.00, of which consideration the Calhoun county 288 acres was taken for $5,000.00. Anderson assumed a mortgage which was on the land for $3,000.00, and the other $750.00 was paid in cash. The party who conducted this transaction for the former owners states that Cornell approached him in regard to the sale of the 288 acres of Calhoun county land, stating that Anderson desired to dispose of it on account of its remoteness from his residence and his inability for that reason to give it proper attention. He says that he informed Cornell that he had the 16%-acre tract, and
The bill charges that this 16% acres is, in fact, the property of Cornell upon the theory that at the time of Cornell ’s failure he transferred certain of his property as above indicated to Anderson, and that as a result of this Anderson procured the 288 acres in Calhoun county, which subsequently went into the 16% acres, and that the $750.00 in cash was derived from funds of Cornell, although there is no showing whatever as to this except that the fifty dollars was paid by Cornell. Cornell and Anderson were both living at the time the suit was instituted, and they each filed an answer denying all of the allegations of fraud, and asserting that the property was the property of Anderson, and Anderson also relied upon the equitable doctrine of laches to defeat the plaintiff’s claim. A few months after the suit was brought and before the plaintiff had taken any depositions, Cornell, who was then an old man, departed this life. In a very short time after the institution of the suit, and before any testimony was taken, Anderson’s mind became so affected that he was never able to give his testimony in the case, and died before the same was submitted for a hearing. Plaintiff’s decedent departed this life in the year 1914, two years before the suit was brought, 22 years after it is claimed the fraudulent transaction was had between Anderson and Cornell, on account of which the land is sought to be subjected in this suit.
As before stated, Cornell died before the testimony was taken, and counsel could not even intelligently cross-examine the witnesses whose evidence had been given as to the statements made by him. If he had been present it may be that the time, place and circumstances under which these statements were made could have been developed, and their force as evidence entirely destroyed. The plaintiff, in order to prevail, must rely upon alleged fraudulent conduct which was committed nearly a quarter of a century before the institution of the suit. It clearly appears that Cornell had never had any property since 1892, and if any transfer of property to Anderson to defraud his creditors was made, it was made prior to that time. The equitable doctrine of laches by which one is denied the right to assert a claim in a court of equity, because of staleness or lapse of time, is well recognized by this Court. It is quite true that mere lapse of time will not effect such a bar, but must be accompanied by some injury or disadvantage to the opposite party, or some conduct which indicates that the' plaintiff had abandoned his claim, and only reasserts it because of some advantage arising under conditions brought about either by the action of the other party, by territorial development, or some other like cause. 10 R. C., title “Equity,” §§ 142, etc.; Carter v. Price, 85 W. Va. 744, 102 S. E. 685; Edgell v. Smith, 50 W. Va. 349. Many more cases could be cited to the same effect, but these suffice to illustrate the principle.
But the plaintiff contends that the equitable doctrine of laches does not apply to a suit in equity to enforce a judgment lien; that nothing but the bar of the Statute of Limitations will be availing, and that inasmuch as this judgment has been kept alive by the issuance of executions she is entitled to maintain the same. This would be entirely true if she were enf orc-
Having come to the conclusion that the plaintiff’s right of action is barred by the equitable doctrine of laches, it becomes unnecessary to examine the other questions presented on this appeal..
We will reverse the decree of the circuit court of Wood county and dismiss the bill.
Reversed, and bill dismissed.