Complainant brings his bill of complaint for an accounting against defendant whom he claims to be the equitable mortgagee of Leonard' Smith, deceased, to whose rights he has succeeded by assignment. The defendant denies the existence of a mortgage and claims that the transaction between himself and deceased was a conditional sale. The cause is reported to this court for the determination of all questions involved upon such of the evidence as. is legally admissible.
A discussion of the evidence bearing upon the'issue of mortgage or conditional sale will not be profitable, but it may be stated that upon all the evidence adduced this court would hesitate to declare that the complainant has shown that it was the intention of the original parties to the transaction to secure the payment of a debt.
The deed of deceased and the bond of defendant were made on the twentieth day of November, 1897, and the deed was recorded one week later. Sometime in the year 1899, A, an attorney at law, holding sundry executions against deceased, cited him to make the statutory disclosure of his affairs and proceedings under the citation were not closed until nearly a year later. At no time subsequent, however, did A make any attempt to satisfy his executions, by recourse to the real estate described in the bond and deed. On the seventh day of August, 1900, A took an assignment of the bond but, during the lifetime of deceased, neither made demand upon nor commenced proceedings against defendant for an accounting. On the nineteenth day of October, 1906, some months after deceased was seized with his last sickness, the bond (with the assignment) was first recorded.
The death of deceased occurred on the tenth day of June, 1907. Action thereafter is more rapid. Two weeks later, the complainant, alleging himself assignee of the bond, makes demand in writing *262upon defendant for an accounting. The assignment from A to complainant bears the date of July 15, 1907, and the bill of complaint is sworn to the eighth day of October, 1907. It alleges no circumstances in explanation of the delay in the commencement of proceedings and none of a valid character appears in evidence. (See Marsh v. Whitmore, 21 Wall. 178 at page 185.)
Under all the circumstances of this case, we think the complainant is barred by the laches of his assignor. Seeking equity, the complainant "must do equity ; must proceed seasonably while the other party has fair . opportunity and means to defend. He cannot purposely wait until death or other cause of probable event has removed that opportunity. If it appears that by unnecessary delay he has placed the other party at a substantial disadvantage, the court will dismiss his suit:” Clark v. Chase, 101 Maine, 270, 274-275 and cases cited. O'Brien v. Wheelock, 184 U. S. 450, 493; See also Lindsey v. Fabens, 189 Mass. 329, 331; Doane v. Preston, 183 Mass. 569, 572.
The defendant in this case was as much entitled to the testimony of Leonard Smith as a defendant sued in a representative capacity: Frost v. Walls, 93 Maine, 405. That proceedings were delayed until his decease is a significant fact which cannot be overlooked under the circumstances of the case: Alden v. Goddard, 73 Maine, 345, 351.
Bill dismissed with costs.