118 F. 885 | U.S. Circuit Court for the District of Western New York | 1902
This is a motion by the complainant for leave to file his replication nunc pro tunc. The complaint was filed August 7, 1901. The answer was filed December 9, 1901, after several extensions by stipulation. On March 24, 1902, no replication having been filed, an order was entered as of course dismissing the complaint pursuant to equity rule 66. It appears by the moving papers that complainant’s counsel who prepared the bill resides at Marion, Ind. His solicitor is a resident within the jurisdiction of this court. Each seems to have relied upon the other to file the replication. None was filed within the period fixed by rule; hence this application to the grace and favor of the court. Motions of this character are ordinarily treated with indulgence, and relief is generally granted where the application is made in good faith, and when the default is fully excused. Peirce v. West, Fed. Cas. No. 10,909, Pet. C. C. 351; Fischer v. Hayes (C. C.) 6 Fed. 63-76, 19 Blatchf. 13; Robinson v. Satterlee, Fed. Cas. No. 11,967, 3 Sawy. 134; 1 Fost. Fed. Prac. p. 277; Robinson v. Randolph, Fed. Cas. No. 11,963, 4 Ban. & A. 317. There is no general or positive rule on the subject of allowing a party in default to come into court to interpose his defense, or when the application, as here, is made by complainant to prosecute his alleged cause of action. The application is vigorously opposed on the ground of manifest laches of complainant, which appears upon the face of the bill. This opposition to allowing the relief ordinarily granted in equity requires an extended examination of the facts alleged in the bill. Is the claim set forth in the bill stale, or has there been such failure to seek equitable relief as to justify this court in a refusal to consider complainant’s case upon his own showing? The defense of laches may be interposed by plea, answer, or demurrer, and may also be raised on the hearing, or preliminary thereto. Manufacturing Co. v. Williams, 15 C. C. A. 520, 68 Fed. 494; Lansdale v. Smith, 106 U. S. 391, 27 L. Ed. 219; 1 Bates, Fed. Eq. Proc. 336. The theory of counsel for defense is that .great inconvenience or hardship would result to defendant by allowing the relief sought; that she will be put to great expense in preparing her defense, which involves the examination of records and abstracts of lands situated in four counties in the state of Michigan; and will necessarily be put to great expense in procuring witnesses who are acquainted with market values of timber lands at a period from 10 to 20 years prior to the institution of this suit. She claims that the damages, if any, which have accrued to complainant, depend upon timber values from r88i to 1892, inclusive, and upon the particular value of white pine, Norway pine, and other timber land. Defendant therefore contends that, if the bill shows on its face apparent laches and staleness of claim, the court, in the exercise of its inherent power, should decline to vacate the order dismissing the bill, and by so doing refuse all equitable relief in the premises. It is uniformly held that'a court of equity has the power to refuse
“Length of time necessarily obscures all human evidence, and deprives parties of the means of ascertaining the nature of original transactions. It operates by way of presumption in favor of the party in possession. Long acquiescence and laches by parties out of possession are productive of much hardship and injustice to others, and cannot be excused but by showing some actual hindrance or impediment caused by the fraud or concealment of the party in possession, which will appeal to the conscience of the chancellor.”
The question of laches, therefore, without straining any technical rule, may be properly considered upon this motion as if the subject-matter came before the court on demurrer, plea, or answer. Counsel for complainant has been fully heard upon this motion, and has filed a painstaking brief discussing the facts alleged in the bill of com
“Au Sable, Mieb., Oct. 26tb, 1881.
“This Is to certify that I have sold John E. Potts all my standing pine timber land on this stream or Au Sable for $66,500, which also includes river front and farm in 24—9 east; and it is further understood, if I have omitted to deed any timber land on this stream I now have or own, I will at any time make deed for same; and I also in the sale sell all my horses and camp outfit on this stream now in S. Vaughn’s care. S. P. Bliss.”
This instrument was recorded six years later, on December 23, 1887, in Oscoda county, Mich., where some of the property is situated, and nearly 10 years later—September 4, 1891—a certified copy was recorded in Alcona county, Mich., where also are situated some of the lands which are the subject of the suit. The contract was contemporaneous with the execution and delivery by Bliss of the deeds to other lands. The consideration,—$66,500,—which included the purchase price for certain personal property, was.paid at different times within two years next succeeding the making of the contract. When the parties met for the purpose of concluding their arrangements of sale, it was discovered that divers lists and memorandums, descriptions of land to be incorporated in the instrument of conveyance, were missing; hence the making of the additional contract. The property in question is inaccessible timber lands, valuable for the timber standing and growing thereon, and available only when through railroad facilities for marketing and conveying it to convenient shipping points were established. The bill alleges on information and belief that subsequent to the sale to Potts Bliss removed from the state of Michigan to the state of New York; that the defendant, now Mrs. Alexander, took an active part on several occasions with her husband in concluding the negotiations; that she shared with her husband the management and responsibility of his business affairs, and was acquainted with the character of the lands and properties owned by him. The bill then alleges generally that the defendant had full knowledge of all the facts which led to the making of the conveyances to complainant’s assignor and the contract above set out. It specifically states that, after the transaction was concluded, defendant promised complainant’s assignor to join with her husband in all future conveyances that might be deemed necessary to carry out the agreement, and that the defendant succeeded by testamentary disposition to her husband’s estate on
The answer challenges complainant’s right to sue because of laches, and pleads, among other things, the statute of limitations as a bar. The statute of limitations does not necessarily apply. The courts of equity at times have held that such statutes by analogy were applicable to equitable causes. The statutes in terms, however, are not applicable to the equity side of the court. The inherent principles of its own peculiar system of jurisprudence, however, are invariably applied by a court of equity. Abram v. Ordway, 158 U. S. 416, 15 Sup. Ct. 894, 39 L. Ed. 1036; Sullivan v. Railroad Co., 94 U. S. 811, 24 L. Ed. 324. On this point Chief Justice Fuller, writing for the court, in the case of Hammond v. Hopkins, supra, quotes the following, at page 273, 143 U. S., and page 435, 12 Sup. Ct., 36 L. Ed. 134, from the opinion of Justice Merrick, who rendered the opinion in the court below:
“Where there has been no change of circumstances between the parties, and no change with reference to the condition and value of the property, a court of'chancery will run very nearly, if not quite, up to the measure of the statute of limitations as applied in analogous cases in a court of law. But where there has been a change of circumstances with reference to the parties and the property, and still more where death has intervened, so that the mouth of one party is closed, and those who represent his interests are not in a predicament to avail of the explanations which he might have made, out of the charities of the law and in consideration of the fact that fraud is never to be presumed, but must always be proved, and proved clearly, the courts limit very much, in such cases, the measure of time within which they will grant relief, because the presumption comes in aid of the dead man that he has gone to his account with a clear conscience.”
Every case of this nature must stand or fall on the particular circumstances presented. Such is the uniform holding of the decisions. The delay in an earlier enforcement of the claim is not sufficiently excused in the case at bar. I am not satisfied that merely writing letters, to which no replies were received, was exercising such diligence to find the defendant as the exigencies of a meritorious claim required. Nothing appears to have been done to discover defendant from the year 1893 to the year 1900, a period of eight years. About nine years had elapsed when the suit was commenced after complainant had actual knowledge of the transfer by the defendant of timber lands to which he claimed equitable ownership. The complainant, however, must be presumed to have had earlier knowledge. The cause of action must be deemed to have accrued at that period of time when the conveyances were respectively recorded. The first conveyance was made on March 22, 1886, and related to lands situate in' Alcona county. Other sales were made on January 20, 1888, February 14, 1890, and September 4, 1890. The bill does not state when these various conveyances were recorded. It avers the record, but the date and time are left blank. It will be assumed that the conveyances were recorded soon after their date. Public notice of such sales to
An order may be entered denying the motion for leave to file a replication and dismissing the bill. Costs having already been taxed, in the order dismissing the suit, no further costs will be granted.