Russell v. Fish

149 Wis. 122 | Wis. | 1912

SiebegKER, T.

The appellant contends that the trial court erred in dismissing plaintiff’s complaint upon the ground that the plaintiff was guilty of laches in enforcing his alleged right and hence in equity was barred a recovery. No arbitrary rule exists by which stale demands may be ascertained and characterized so as to defeat an alleged claim or right; each case must rest largely upon its own facts and circumstances. Delay in asserting a right is by common consent a circumstance tending to show its want of justness, and when unreasonably extended, though unattended by other inequitable features, may create a conclusive presumption against the validity of a claim, if the delay is continued under circumstances affording opportunity for diligence. There are many phases of conduct in connection with long delays in enforcing rights which a court of equity will consider to determine whether or not a case of laches exists. Of these may be mentioned the loss of evidence occasioned by the death or departure of witnesses; the diminished probative force of evidence resulting from such delay; the change of relations to the property concerned in the litigation, by which rights of other parties may have become involved and might be adversely affected by enforcement of the claim; and the changes in the conditions of the property, such as a marked appreciation or depreciation in its value, when the right might have been enforced before such change and without awaiting the outcome thereof before asserting or renouncing the right in accordance with the result. These considerations find universal recognition in the adjudications on the subject. Combs v. Scott, 76 Wis. 662, 45 N. W. 532; Rogers v. Van Nortwick, 87 Wis. 414, 58 N. W. 757; Likens v. Likens, 136 Wis. 321, 117 N. W. 799. In the light of the well established principles, adhered to in these and other adjudications of this court, governing the question of laches, we are persuaded under the facts and circumstances of this case that the plaintiff has not shown himself properly diligent in enforcing the right upon which he now seeks a recovery against the defendants. His right to any interest in the property rested mainly in parol, and the alleged circumstances of its acquirement cast upon him the burden of establishing it by clear, convincing, and undoubted proof. This condition of his claim had peculiar force in calling on him to act promptly when he found his claim to an interest in the property was denied by John Eish, in order that he might present his claim while the circumstances of the transaction were fresh in the minds of men competent to testify thereto, and that he might thus avoid loss of such evidence through death or the destruction of its force by long lapse of time. The fact is, however, that the plaintiff, though fully informed that his claim or right was disputed, delayed prosecution for its enforcement for nearly ten years, during which time there were no obstacles to prevent him from prosecuting his claim. Nor is any reasonable explanation offered for such delay. The suggestion that he was - advised by counsel not to proceed against the defendant to assert his right by legal action until it was known whether or not Eish had realized any profits from the transaction affords no excuse and tends to emphasize his inexcusable delay. It is universally recognized that the speculative character of the property involved in a transaction is an important element in determining the effect of delay in claiming a right thereto and that a higher degree of diligence is required to avoid tbe charge of laches in such cases. The facts of this case are clear that the property was highly speculative in character, that this was well known to the plaintiff, and that he delayed enforcement of his alleged right for many years to await the outcome of the investment and enterprise.' This is a strong feature of the case tending to show that the plaintiff was called upon to act expeditiously in enforcing any right to an interest in this property. Then again, it appears that the plaintiff’s long delay has operated prejudicially to the defendants, in that John Fish and Peter Fish, as well as Mr. Simmons, the grantor of the land, his attorney, and the banker who represented him in the transfer, are all deceased. This seriously affects the inquiry into the justice of the cause. It also appears that the property has been transferred to third parties, who have been made defendants to the suit. Nor is it clear that the recorded conveyance and the external facts and circumstances of the transaction gave such implied or express knowledge to the purchaser as was sufficient to put it upon inquiry respecting such a claim. In the light of these facts and circumstances, plaintiff’s want of diligence in enforcing his alleged right is clearly shown and the court properly held him to be barred by his laches from now enforcing such a right, and properly awarded judgment dismissing the complaint.

This result renders it unnecessary to consider any of the other questions presented in the briefs of counsel.

By the Court. — Judgment affirmed.