213 F. 154 | 7th Cir. | 1914
(after stating the facts as above).
“No remainder shall be created upon an estate for life of any other person or persons than that of the grantee or devisee of such estate, unless such remainder be an estate in fee.”
Although the deed is in substance a conveyance of an estate for life to Fidelia, with remainder over in fee to the four Eukens- children, with a reserved estate for the life of the grantor Overton, appellee contends that the remainder was created upon an estate for life of the grantor alone and therefore was violative of the statute.
While courts and text-writers have said that it would not be well to limit and restrain the doctrine by any attempt at precise definition, and that the question is to be determined by the particular facts of each-case, yet the general nature of the doctrine may be appreciated in a negative way by recalling what it is not. Though the idea of delay is involved, the doctrine of laches is not an application of any statute of limitations, für, if the statutory time had fully run, no consideration would need to be given to the conduct and position of the parties. And though the conduct of the parties is to be weighed, the doctrine of laches is not coterminous with estoppel by conduct, for if one’s conduct at the time of another’s entry upon land prevented the pressing of a claim, no consideration would need to be paid to the lapse of time' thereafter. That is, although the conduct of the complainant has not created an estoppel in pais, and although less than the statutory period of limitations has run, a court of conscience will compare the. conduct and the relative positions of the antagonists, and if on a balancing of the scales of justness and fair dealing the pointer inclines toward the defendant, the chancellor will refuse to be moved by the prayer of the complainant.
Two well-recognized phases of the doctrine apply to this case. One is the change in the position of the occupiers of the land and the increase of value during the interval. 16 Cyc. 161, 162. Fidelia Overton died in April, 1897. Thereupon appellants’ right of possession accrued under the deed made 51 years before. No inquiry was •made, no move was inaugurated during more than 12 years. Absence from the state and lack of means are given as reasons for the ■delay. But these are reasons that cannot be accepted. 16 Cyc. 169. A suitor with no money may have relief in equity. And furthermore,
The other phase is the effect of the delay upon the state of the evidence respecting what occurred between 1849 and 1865. 16 Cyc. 163, 164. Joshua Overton died in 1849. Fidelia was devisee and executrix. Joshua’s estate was closed in the probate court in 1852. Fidelia and her children remained in Posey county until 1856. They lived in neighboring counties in southern Indiana until the land was deeded to McDonald in 1865, whereupon Fidelia and her children, who were then all of age, left the state. The master finds that Fidelia, after Joshua’s death, claimed and exercised the dominion of owner in fee of the 160-acre estate. As we have hereinabove noted, this finding is not very clearly supported by the testimony. The witnesses were old men, upwhrds of 70 years at the time of giving their testimony; but that would'only make them lads in their teens when Joshua Over-ton died, and while his widow and stepchildren occupied the land between the time of Joshua’s death and their departure from Posey county. This means that all of the people in the neighborhood of the land who were adults and who were conducting the business of the community in those days have long been dead. If in truth the Dukens children had notice of legal advice given to their mother that the deed to Walker, trustee, was void and that their mother had title in fee as devisee under Joshua’s will; or, if in 1865 the children received a portion of’the consideration paid by McDonald for the land; or if
The decree is affirmed.