31 Wash. 386 | Wash. | 1903
The opinion of the court was delivered by
— Appellants denominate the complaint in this action “a bill to redeem.” The prayer is for an accounting between the parties, and that the court determine the amount due defendants under a foreclosure sale by one J. W. Thompson during his life-time, and that upon the payment of the amount found due to defendants the court order certain property described in the complaint conveyed to the plaintiffs. A demurrer to the complaint was sustained. The plaintiffs elected to stand on the allegations thereof, and the cause was dismissed. Plaintiffs appeal.
The facts alleged in the complaint are substantially as follows: In January, 1892, plaintiff Ben E. Snipes and one J. W. Thompson entered into a contract by the terms of which Snipes was to purchase certain real estate in Seattle, and take title thereto in his own name, to be held
We think the demurrer was properly sustained upon-two grounds: (1) Upon the ground of laches, and (2) upon the ground that the complaint does not state a cause of action for which equity affords relief. Counsel for appellants seek to avoid the statute of limitations and the rule of laches by the allegation that the deceased, J. W. Thompson, during his life time, repeatedly promised to make a declaration of trust in writing, but that he postponed the performance of his promise from time to time, and thereby lulled the plaintiff Ben E. Snipes into the belief that he was secure, and was thereby excused from bringing an action to enforce his rights. If these were the only facts alleged, they would probably be sufficient to excuse the delay, under the rule in Ryan v. Dox, 34 N. Y. 307 (90 Am. Dec. 696), quoted and relied upon by plaintiffs. But when it is also alleged that the deceased, J. W. Thompson, on March 1, 1901, refused to carry out his promises, and when it further appears that in July (some four months later) Mr. Thompson died, and also that the action was not brought until October Id, 1901 (some three months after Thompson’s death), we think under these circumstances, if the rule of laches may not be enforced, it is difficult to understand under what circumstances the rule may be invoked. An action to redeem under the statute was barred in one year after the sale. An action to enforce the oral agreement alleged was barred in two years. But, because of the promises of Thompson to execute the agreement, plaintiffs argue that the
“Where a party has been unreasonably dilatory or negligent in enforcing his rights, and shows no excuse for such laches in asserting them, courts of equity uniformly decline to assist him in their enforcement.” Wood, Limitation (3d ed.), p. 155, 137.
Appellant relies upon the case of Ryan v. Dox, supra, which is quoted at length in the brief. In that case the action was brought during the life time of the defendant, who was alleged to have made the contract. In this case, if Mr. Thompson, who is alleged to have made the contract, were living, we think the action would be in time under the rule there announced; but when the plaintiff has delayed more than six years, and until after the death of the other party to the oral contract, the rule of. laches should be applied.
Furthermore, the demurrer was properly sustained be
The judgment is therefore affirmed.
Fdllebton, C. J., and Hadley and Aydebs, JJ., concur.