Moynahan v. Allen

127 Wis. 258 | Wis. | 1906

KjsbwiN, J.

The court below in denying the right to appeal held that appellants were guilty of laches. Several other questions are discussed by counsel under various assignments of error upon this appeal; but, if the court did not abuse its discretion in holding that the appellants were guilty of laches, the order must be affirmed, and no other question argued need be considered. Sec. 4035, Stats. 1898. It appears from the record that the administrator had been endeavoring for many years, in accordance with the provisions of the will, to obtain a desirable purchaser and make a sale, but until 1903 failed to carry Out his purpose. In 1895, in order to hold the property until an adequate pi’ice could be obtained therefor, he secured a license to mortgage it, and did obtain a loan of $1,472 thereon for the purpose of paying accrued interest on the $2,800 mortgage and claims allowed against the estate. In the spring of 1903 the interest upon both mortgages had accumulated for a period of about eight years and was then unpaid. It further appears that at or about the time the administrator had obtained the bid of $20,000 from the purchaser, Grommes, which was accepted, and in Eebruary, 1903, he called upon the appellant Jennie Moynahan in the city of Chicago, and informed her of the agreed sale and the terms thereof, and of the necessity of immediately closing the same, and requested that she quitclaim her interest to the purchaser, which she refused to do, but made no objection to the sale or the terms thereof; that the administrator then informed her that her signature was not necessary, and that the sale would be carried out in accordance with the agreement. It also appears that in the summer of 1903 the interest of said appellant J ennie Moynahan was being looted after by her attorney, and a letter was written by him, at least as early as October 9, 1903, to the administrator respecting the interest of said petitioner Moynahan. It also appears from this letter that the attorney was more concerned respecting the indebtedness of said Jennie Moynahan to the estate than the matter of sale of the property, expressing his desire to see and examine the note, and making no objection to the sale. All the other heirs, except Edward O’Hara, assented to the sale, quitclaimed their interest to the purchaser, and received their portion of the proceeds; their quitclaim being executed about the 8th of June, 1903. The petitioner James O’Hara, having received his interest and executed a quitclaim deed to the purchaser, clearly cannot complain of the sale, and the petitioner' Jennie Moynahan had knowledge of the terms of the sale at or about the time it was made, and also knowledge of the order construing the will and allowing sale, at least as early as November, 1903. This clearly appears from the record. She did not move until nearly a year after she received the notice that the sale would be made, and more than three months after notice that the order was made, during which time the purchaser was in possession, making valuable improvements and changing his position on the faith of his purchase. It is quite apparent, too, from the proof appearing on the hearing that her real complaint was not because of the sale, but because of the fact that the residue belonging to her on final settlement was offset against her indebtedness to the estate, and that if she had received this amount she would have made no obj'ection to the sale. The purchaser, Grommes, .after sale went into and has ever since continued in possession and made valuable improvements upon the property aggregating upwards of $15,000. Many other questions respecting the value of the property, the bona fides of the sale, and insolvency of the heirs to whom payments have been made were considered upon the hearing on application for permission to appeal which we do not deem necessary to recite here.

Complaint is made by counsel for appellants that counter affidavits were used on the hearing. It appears from the record that they were considered only on the question of laches, and the facts showing laches or fault on the part of the appellants are practically undisputed. The application for leave to appeal after the time has expired in such cases is addressed to the sound discretion of the court, and the determination of the court will not be disturbed unless it clearly appears that such discretion has been abused. Deering H. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426; Weadock v. Ray, 111 Wis. 489, 87 N. W. 477; McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489. Erom the whole record the case made by the appellants is one of “neglect and inattention” and cannot appeal strongly to the court, especially where it appears, as in this case, that the purchaser whose title would be affected by a revision of the decree has incurred large expense and materially changed his situation in consequence of the delay and apparent acquiescence on the part' of the appellants. Blanchard v. Doering, 23 Wis. 200; Meehan v. Blodgett, 86 Wis. 511, 57 N. W. 291; Melms v. Pabst B. Co. 93 Wis. 153, 66 N. W. 518; Rogers v. Van Nortwich, 87 Wis. 414, 58 N. W. 757; McCann v. Welch, 106 Wis. 142, 81 N. W. 996; Hamilton v. Menominee Falls Q. Co. 106 Wis. 352, 81 N. W. 876; State ex rel. Taylor v. Superior, 108 Wis. 16, 83 N. W. 1100. We are unable to discover that there was any abuse of discretion in denying appellants’ application for leave to appeal.

By the Court. — The order appealed from is affirmed.