94 Vt. 306 | Vt. | 1920
The bill prays for a decree confirming the plaintiff’s title to certain property, real and personal, and compelling the defendants to make such conveyances as are necessary to remove the cloud from his title.
The material allegations of the bill appear in the opinion handed down by this Court when the case was here on the demurrer of the defendant Russell Brown. 93 Vt. 190, 106 Atl. 774. After remanded, the case was heard on the merits by a chancellor, who found and stated the facts, and entered a decree thereon for the plaintiff in accordance with'the prayer of the bill, and the case is now here on appeal by defendant Cave.
The defendant urges that an oral contract, such as is claimed by the plaintiff, is not to be presumed in this State between members of the same family. Be that as it may, it does not affect the plaintiff’s rights in the instant case, because here we have a positive finding that there was an express contract between him and the intestate. See Sawyer v. Hebard’s Est., 58 Vt. 375, 3 Atl. 529.
While the maxim, “Equity helps the vigilant, not the dormant,” is of frequent and extended application, so, too, is the maxim, ‘ ‘ He who seeks equity must do equity. ’ ’ The defendant Lois slept on her legal rights, if she had any, for eighteen years, with no apparent excuse, while the plaintiff was increasing the value of the property, believing it to be his, as the chancellor finds. Moreover, so far as these defendants were concerned, the plaintiff was not called upon to act until his title or right to the property was assailed, and when that occurred he took seasonable steps to assert his rights. Furthermore, the decision of this question by the lower court called for the exercise of its discretion, and, as was said in Philbrick v. Johnson, 91 Vt. 270, 100 Atl. 110, the decision of the court upon the question of laches is so much a matter of discretion, dependent upon the facts, that it should not be disturbed oñ appeal unless clearly shown to be wrong; and no such showing is made in this case.
In support of the first ground he relies upon Powers v. Douglass, 53 Vt. 471, 38 A. R. 699, where the court noticed the fact that there was a finding that the administrator had funds in his hands belonging to the estate out of which the award could be paid; but the ease did not turn on that fact, nor is it authority for the proposition that without such finding costs should not be awarded against an administrator. The liability of executors and administrators for costs, in litigation conducted by them, was settled in this State in O’Hear v. Skeels, 22 Vt. 152.
Nor is there anything unreasonable in holding such persons-liable for costs. It is a salutary restraint upon them, and well calculated to guard the estates of deceased persons against heedless expense in unjustifiable litigation. If an administrator does
Decree affirmed, and catise remanded.