59 F. 848 | 8th Cir. | 1894
This was a hill for an accounting between a, mortgagor and mortgagee, and to redeem from the lien of a mortgage certain real estate situated in Sioux City, Iowa, known as the west 22 feet of lot 1, block 22. in East addition to said city. The material facts, as disclosed by the record, are as follows: On the 1st day of February, 1875, the appellant, Sehlawig, mortgaged said property to Ilobert Purslow. one of the appellees, to secure an indebtedness of $2,4(50, which sum lie promised to pay one year thereafter, with semiannual interest at the rate of 10 per cent, per annum. The indebtedness not having been paid, a suit was subsequently brought by Purslow’ in the district court of Woodbury county, Iowa, to enforce said mortgage, and in such proceeding a decree of foreclosure was entered on October 29, 1876, for the sum of $2,975, together with costs and attorney’s fees. No sale was made in execution of said decree of foreclosure, hut in lieu thereof, on December 1,1877. Sehlawig and wifi1 executed the following instrument, which was duly acknowledged, delivered, and recorded.
“Know all men by these presents that we, John J. Sehlawig' and Ursula Sehlawig, his wife, of Woodbury county and slate of Iowa, in consideration of the sum of three thousand four hundred and twenty-one 55-100 dollars in hand paid by Robert Durslow, of Woodbury county and state of Iowa, do hereby sell and convey unto the said Robert Purslow' the following described premises, situated in the county of Woodbury and state of Iowa, to wit: Commencing at the northwest comer of lot one, (1,) block twenty-two, (22,1 Sioux City, East addition; thence running east twenty-two (22) feet on the north line of said lot; thence south fifty (50) feet; thence west on the south line of said lot twenty-two (22) feet; thence north to the point of beginning, —being the west (22) twenty-two feet of said lot. This deed is made under the following state of facts:
“(1) The said Purslow having obtained a decree of foreclosure against said grantors of a mortgage upon said premises, which is the sole consideration of this deed, now, therefore:
“(2) The grantors are to retain possession of said premises for one year from tliis date, December 1, 1877.
“(:>) The same redemption that would be allowed by law to the grantors and their creditors had a sale under execution been made shall he allowed for one year from December 1, 1877.
*850 “(4) At the expiration of said year, unless redeemed according to law, the grantors will surrender the immediate possession of said premises to the grantee. And we hereby covenant with the said Robert Purslow that wo hold said premises by good and perfect title; that we have good, right, and lawful authority to sell and convey the same; that they are free and dear of all liens and incumbrances whatsoever; and we covenant to warrant and defend the said premises against the lawful claims of all persons whomsoever. It is further stipulated that, if grantors redeem said premises, they will pay taxes advanced by grantee, and $25.00 paid by him on Joseph Reappier’s judgment. And the said Ursula Schlawig hereby relinquishes her right of dower in and to the above-described premises.
“Signed this 1st day of December, A. D. 1877. J. J. Schlawig.
“In presence of 33. 33. Dewis. Ursula Sclilawig.”
The consideration expressed in this instrument ($3,421.55) was not refunded within the year; whereupon, on December 1,1878, Purslow took possession of the premises with the consent of Schlawig and wife, and the premises have ever since been in the actual possession of Purslow or of his grantees. On February 4, 1880, Purslow conveyed the premises, by warranty deed, to A. S. Garretson. On October 2, 1880, Garretson conveyed the same premises, by warranty deed, to the Sioux City Savings Bank, and on December 28,1881, the Sioux City Savings Bank conveyed the same, by warranty deed, to the Sioux National Bank, by whom the property is now held and occupied. The purchase of the lot in controversy by Garretson appears to have been made for and in behalf of the Sioux City Savings Bank, of which he was cashier, and immediately after his purchase, during the spring and summer of 1880, the bank erected valuable improvements thereon at an expense of about $22,000. The improvements consisted of a substantial brick building with stone trimmings, 22 feet wide, 90 feet deep, and 2 stories high, which was designed to be used for banking purposes, and has been so used since its completion. At the time Purslow took possession of the property, there was a frame building situated on the lot in controversy. This was removed by Purslow when the bank building was erected, and the new structure was extended for about 40 feet over an adjoining lot located at the rear of the premises in dispute, which adjoining lot belonged to the Sioux City Savings Bank. At the present time, and since its erection, .the bank building covers the premises in controversy and the adjoining lot, the title to which is not in dispute. An expensive vault has also been constructed for the use of the bank, the foundation of which stands partly on the lot in controversy and partly on the adjoining lot. From December 1, 1878, until June 11, 1891, when the present suit was instituted, Schlawig spent a portion of his time in the Black hills, but Ms family resided continuously in Sioux City, and he visited his family oil many occasions. It is not denied that he was fully aware, during all of that period, of the improvements that were being made on said lot, and of the several conveyances that were made by Purslow and by those claiming under Mm. During the past 12 or 13 years the property in question has greatly appreciated in value, and it is now regarded as one of the most eligible business sites in Sioux City.
The doctrine of laches, as heretofore applied, both by this court and other courts, also fully warranted the decree dismissing the bill of complaint, even if we should concede that there was no other adequate ground for refusing relief. It is a fundamental rule that courts of equity will not aid a suitor who has for a Jong time acquiesced in the assertion of adverse rights without any excuse for so doing; and especially is this true if his conduct savors of bad faith, and the relief sought will be productive of much hardship and injustice to others. Godden v. Kimmell, 99 U. S. 201; Badger v. Badger, 2 Wall. 87; McKnight v. Taylor, 1 How. 161; Naddo v. Bardon, 2 C. C. A. 335, 51 Fed. 493; Lemoine v. Dunklin Co., 2 C. C. A. 343, 51 Fed. 487. Courts of equity will also refuse to interfere, though the period of delay is comparatively short, where the complainant, being out of possession of property, lias waited before bringing suit until the same has greatly enhanced in value, or has stood by and suffered tbe opposite party, without notice of bis claim, to expend bis money in making valuable improvements on tlie property to which the claim relates, Landrum v. Bank, 63 Mo. 48, 56, 57; Moreman v. Talbott, 55 Mo. 392; Kinne v. Webb, 4 C. C. A. 170, 175, 54 Fed. 34. In the case at bur the record shows, not only that the complainant below waited for an unreasonable period before asserting Ms right to redeem, but that he stood silently by, and permitted the defendants below to remove the old improvements on the mortgaged property, and to expend a large sum of money in erecting a substantial brick building, which extends over an adjoining lot, and cannot now be removed without inflicting a -'-reat loss on the appellees. It is evident that the relief sought by the complainant in this proceeding cannot be afforded a,t this late day without doing gross injustice, which would be justly attributable to the laches and bad faith of the complainant. Our conclusion is that the decree of the circuit court was undoubtedly right, for the reasons last indicated, and that the same should, in any event, he affirmed. , It is so ordered.