ON REHEARING.
Opinion delivered April 15, 1912.
Hart, J.Our attention is called to the fact that some of the plaintiffs conveyed their interest to certain of the lands in controversy to the grantors of the defendant prior to the institution of this suit.
We have examined the testimony in regard to this question, arid find that these conveyances were not procured by fraud, and are therefore valid conveyances. This fact was conceded by counsel for the plaintiffs in their original briefs, and we did not intend in our opinion to reverse the decision of the chancellor on this point. We fipd, however, on the examination of our opinion, that, under the direction given, it might be susceptible to that interpretation. Hence our former opinion as to that extent is modified, and we think that the opinion of the chancellor, in so far as it holds that these conveyances were valid and binding upon the plaintiffs executing them, is correct.
We are also asked to reconsider our decision to the effect that the plaintiffs were not barred on account of laches.
In the case of Hughes v. Wallace, 118 S. W. (Ky. App.) 118, the doctrine of laches is tersely stated as follows:
“Laches is negligence by which another has been led into changing his condition with respect to the property or right in question, so that it would be inequitable to allow the negligent party to be preferred upon his legal rights to the one whom his negligence had misled. It falls but little short of estoppel, and is applied upon the same principle.” This is the principle upon which we proceeded in our original decision, and the application of it to the facts before us convinces us that our former opinion on this point was correct.
Counsel for the defendant urge that the agent who purchased the land for the defendant was told by two or three persons before the purchase that Tatum had abandoned any claim of title to the land. The evidence does not go to the extent of showing that this information was imparted to the agent for the purpose of inducing defendant to act upon it, or that Tatum had any knowledge that any such statements were made. The evidence shows that the defendant had knowledge that the legal title to the land was in Tatum when it purchased it, and the defendant must be presumed to have known that the tax titles to the land were void. Tatum lived in the same neighborhood in which the lands were situated. Witnesses for the plaintiffs say that he claimed title to the land up to the date of hi¡s death, and continuously endeavored to prevent persons from trespassing upon it. So far as the record discloses, the evidence shows that Tatum was wholly in ignorance of the fact that the defendant purchased the lands upon the faith of any representations made by him that he claimed title to it, and it does not appear that such representations, if made by him, were made to any one who contemplated purchasing the land. Under these circumstances, the defendant can not claim that it was misled or injured by the conduct of Tatum in this regard.
The lands in controversy were covered with hardwood timber, and the evidence does not show that the defendant had improved or developed the land. The defendant and another lumber company own most of the pine, as well as the hardwood lands in that county. The defendant, prior to the time it bought the lands in question, had erected a mill and extended a tramroad in the direction of other lands owned by it for the purpose of getting out the timber and manufacturing it into lumber. It is true that, after it purchased the land, it extended this tramroad in their direction, but it owned a large body of other timber lands in the same neighborhood, and it does not appear from the testimony that the purchase of these lands was a matter of inducement for the extension of its tramroad. In other words, so far as the record discloses, the tramroad would have been extended whether the lands in controversy had been purchased by it or not. A preponderance of the testimony shows that a rise in the value of the timber was common to all the lands in that section, and, so far as the defendant is concerned, was a purely accidental one. In other words, the rise in the value of the timber on the lands was not due to any act whatever in regard to the land done by the defendant; it was not connected with any fault of the plaintiffs or merit on the part of the defendant. Under these circumstances, the doctrine of laches can not be invoked by the defendant. It was not in any sense prejudiced by the delay of the plaintiffs in bringing the suit, and, besides this, the intention of Tatum not to abandon his claim of title to the land is proved by a preponderance of the testimony.
We have again, at the instance of counsel for the defendant, examined the evidence in regard to the Davis donation, and adhere to our original opinion on this point. It is purely a question of the preponderance of the evidence, and no useful purpose could be served by setting out the evidence in detail or by an extended discussion of it.
The petition for rehearing will be denied.