— From reading the prevailing opinion, without acquaintance with the record of this appeal, I should conclude the court had decided a ease involving the following conditions: In case an opulent speculator, forehanded, with thousands of dollars in ready cash, should contract to purchase a lot in a townsite, pay one-fourth of the purchase price, and, having partly constructed a building thereon, according to the requirements of the contract, should leave it unfinished, and abandon the premises, without cause or excuse, and fail to pay the taxes thereon for some three years, and then bring an action to enforce specific performance of such contract, he ought to be denied the relief sought. Such is the case, as it seems to me, which is set forth and determined by the foregoing treatment; and the decision, as applied to such a case, would undoubtedly be correct. But to me the record of this appeal discloses quite a different case, and therein will be found the ground of my dissent from the decision of the majority of this court.
Before proceeding to an examination of the record, however, it is well to observe the principles or conditions on which a court of equity would refuse to entertain plaintiff’s action, because of delay in presenting his complaint, where the action is brought within the time prescribed by the statute of limitations. This case is decided entirely on the proposition that plaintiff ought to be denied the relief sought — that is, specific performance of the contract' for the purchase of said lot — because of laches on his part, as this court holds, in failing to bring his action earlier. His action is not barred by the statute of limitations, although the code of this state prescribes a limitation for such actions. Where statutes of limitations have been enacted, prescribing the periods within which various suits may be brought, courts of equity recognize and shape their practice in conformity thereto, in so far as time only is considered as ground for denying the relief. *67The limitation prescribed by statute is based on no equitable ground, but on consideration of public policy, and bars the action, irrespective of equitable considerations. Therefore, in modern equity practice, where such statutes prevail, courts of equity will not, and ought not, refuse relief in an action brought within tlié period of limitation, simply by an arbitrary holding that the claim or right sought to be enforced is stale, and that the complainant is guilty of laches, merely because he had not come into court earlier with his complaint. It cannot be logically held that a right or demand is stale solely because a certain period of time has elapsed since the right of action arose, if it is still within the statute of limitations. Such holding would be setting up a rule by the court in contradiction of the legislature. The legislature has prescribed the date at which the right or demand will become stale by the lapse of time, and thereby become devitalized of virtue, as it were, in view of the law. If, then, the court arbitrarily fixes a shorter period of limitation, it contradicts and sets at naught the will of the legislature. Therefore, where such statutes prevail, if the doctrine of laches is to be applied as ground for denying relief in an action brought within the statute of limitations, the laches must arise from, and be based upon, conditions, or circumstances which have transpired while plaintiff delayed his action, whereby it would be inequitable to award the relief sought. Such new conditions or circumstances, and not merely the lapse of time, is the ground on which plaintiff is held to be too late in asserting his rights. I apprehend that is the true principle on which courts of equity, in modern practice, where statutes of limitations have been enacted governing all cases, apply the doctrine of laches in certain equitable actions, such as actions for specific performance. (Beach on Modern Equity Jurisprudence, § 568.) There is no doubt that, where such conditions have intervened, courts of equity will deny relief, because the relief sought cannot, with equity, be enforced, although the action is brought within the period of limitation prescribed by statute. The real point involved in this case is whether such conditions ■ have intervened. Therefore, if plaintiff, who has brought his action within the period prescribed by the statute of limita*68tions, is to be denied relief on the ground of laches, such holding ought to be founded on the fact shown, — that, through his fault and his delay in commencing his action, defendant had been misled, or circumstances have so changed as to make it inequitable to award specific performance. But no such conditions, in my opinion, are shown by the record in this case.
It appears that plaintiff purchased said lot in the latter part of January, 1887, and paid thereon eighty-seven dollars and fifty cents, being one-fourth of the purchase price. The other installments of the purchase price, of eighty-seven dollars and fifty cents each, were, according to the conditions of the contract, to fall due on the twenty-second day of April, July, and October of that year. Plaintiff thereupon undertook the erection of a house on said lot, which was required by the terms of the contract to be erected, at a cost of not less than five hundred dollars. In the course of that undertaking, and to obtain money in aid thereof, plaintiff negotiated a loan of one hundred and twenty-five dollars from a bank in Great Falls; and, to obtain surety for that loan, plaintiff assigned his contract for the purchase of said lot to Mr. Paris Gibson, vice-president of defendant townsite company, for which indemnity Mr. Gibson. signed plaintiff’s note as surety for said loan. The money thus obtained plaintiff' expended in his endeavor to erect said building. On thb point plaintiff testified: “I did not use any part of the one hundred and twenty-five dollars borrowed on the note to make the first payment on the contract. I bought windows with it and a little lumber; bought five windows of Murphy & Maclay, and the lumber that went into the house I bought partly from the Holter Lumber Company and partly from Mr. Meyers.” When said note fell due, about July of the same year, plaintiff was unable to pay it then, but a few weeks later, having secured the money with which to pay said note, plaintiff went to the bank, found said note there, learned from the banker the full amount due thereon, including interest, and informed the banker that he would return the next day and pay the note. But, on his return to the bank, the next day, plaintiff was informed by the banker that Mr. Gibson had preceded him there, and paid said note, and taken the same, along with the *69contract for the purchase of said lot, which contract was assigned to Mr. Gibson, as aforesaid. A few days later plaintiff called on Mr. Gibson, and offered to pay the note with money which he had borrowed for that purpose. But Mr. Gibson said, on that occasion, he did not kuow whether he would receive the money or not; and plaintiff called a second time, as he states in his testimony, and offered to pay to Mr. Gibson the money due on the said note and contract, but plaintiff was put off by Mr. Gibson saying, “ I will see.” Plaintiff testifies that he was then ready and willing to pay all money due on said contract and note, and had the ability to pay it. He said he had borrowed the money for that purpose, but the payment was not received by the company, and the transaction remained in that condition, without payment being made or received, until the 22d of October, 1887, when the last installment, according to the terms of said contract, fell due. On that date, as the facts are shown by the testimony and found by the court, and in no manner disputed, plaintiff, having borrowed money sufficient for that purpose, caused to be tendered to defendant townsite company, and to its officers, the full amount due on said contract, but the same was refused. It does not appear from any testimony in the record that this payment was refused on the ground that plaintiff had up to that time failed to complete the house on said premises, nor was any reason assigned by the company for refusing to receive such payment, nor was plaintiff’ notified of defendant’s intention to undertake the forfeiture of plaintiff’s rights and interests in said lot, together with his investments therein. Plaintiff was in actual possession of said premises, residing with his family in the house which he had erected thereon, at the expense, up to that time, of three hundred and thirty dollars, as found by the court. The house appears to have been plastered and finished inside, and sided with rough lumber on the outside, so as to be habitable in that season of the year, but it still lacked the finishing siding, corner boards, and painting necessary to complete it, and lacked the expenditure of one hundred and seventy dollars thereon to fulfill the terms of the contract as to the cost of the improvement. On this point, in the course of plaintiff’s testimony, *70be said: “ I moved into the house with my family, consisting of my wife and child, in May, and lived in it until my wife was confined, and able to leave, when I moved back to my ranch, about five miles east of Great Falls, having lived in the house six weeks or two months. After moving out Pf the bouse I saw it every week, going back and forth. X had it rented for a while.” There is no dispute about the facts set forth above, or, indeed, as to any material facts presented by the record in this case.
It is obvious, from the condition of said house, as shown by the testimony, that in order to save the structure, with what plaintiff had expended thereon, he would be obliged to go on and complete it by supplying the necessary siding. Moreover, the company could have withheld from plaintiff á deed, on his payment of the purchase price, and demanded the immediate completion of said house, with notice that in the event of failure therein the company would proceed according to law to recover the premises, and forfeit plaintiff’s investments therein. But the company made no such demand, nor any demand, nor gave any notice whatever, so far as appears from the record in this case. It appears that plaintiff was holding a ranch claim a few miles from Great Falls, and that in the month of September or October of the same year he moved thereto with his family. On this point plaintiff testified: “I lived in the house until September or October, and then moved to the ranch. I may be mistaken as to the length of time. I had a tenant who remained in the house two or three months.” After plaintiff removed therefrom, as shown by the testimony and findings, defendant company, through its officers and agents, unlawfully entered therein, and took possession of said house and lot, and caused said house to be finished, by putting the siding and corner boards thereon, at the expenditure of one hundred and twenty-five dollars, and has ever since held said premises, receiving the rents and use thereof, which the court found to be of the value of three hundred and ninety-two dollars and fifty cents. In addition to the expenditure of the one hundred and twenty-five dollars in finishing said house defendant company caused to be built a fence about said lot, which “consisted of posts with one scant-*71ling on top,” according to the testimony of defendant’s witness, who built it. The company also caused five shade trees to be planted upon the lot, the cost of which is not stated. Such fence and shade trees, however, were not required by the contract of sale to plaintiff. Such was the extent of defendant’s expenditures on said lot. If it had increased in value to the sum of two thousand dollars such increase was not caused by any thing done in respect thereto by defendant.
Among the delinquencies set down against plaintiff in the statement of the case which precedes the prevailing opinion it is said: “ The evidence shows, and the court finds, that the plaintiff failed to pay the taxes thereon before the commencement of this action, amounting to sixty dollars.” That might have the appearance of abandonment of said premises, when considered alone. But no such impression emanates from that fact when it is put in its proper relation to the other facts shown in this case. The facts are, as shown by the record, that plaintiff went into possession of the lot early in the year 1887, after the taxes for the preceding year were due and payable by the townsite company, and about the close of the same year, or early in the year 1888, the townsite company unlawfully dispossessed plaintiff, took possession of said lot, with all improvements plaintiff had erected thereon, and has held and enjoyed the use and benefit thereof ever since. Who, then, under such circumstances, should have paid the taxes on said lot? The fact is that the trial court found the issues in this case in favor of plaintiff, and that he was entitled to a specific performance of said contract, but at the same time required plaintiff to do equity in the premises — that is, to pay all that was due on the contract, and reimburse what defendant town-site company had paid out on the premises; and, in so doing, the court found, not that’ plaintiff had failed to pay the taxes on said premises, amounting to sixty dollars (not as though he was delinquent in that respect), but that the townsite company had paid out that sum in taxes thereon during its unlawful holding of the premises from plaintiff, which sum was credited to the townsite company against the value of the rents and profits with which it was charged, amounting to three hundred and ninety-two dollars and fifty cents.
*72This court appears to take tbe position that plaintiff ought to show some excuse for not bringing his action earlier, although it was brought within the period prescribed by the statute of limitations. Plaintiff was questioned on this point, and, in his testimony, gave the court a direct answer, as follows: He said: “There was no reason for not taking steps to compel the company to make a deed, except that I was financially fixed so that I could not. I suppose I could.have borrowed a few hundred dollars on short notice. I was running a ranch. I am . now a roustabout — general work — doing work at day labor. I was getting four dollars per day in the spring of 1887; four dollars and fifty cents per day in 1886; but it was not steady work. I got three dollars and fifty cents per day in 1888. I don’t remember what I got in 1889. I was raising crops and holding the ranch down. I do not own the ranch now. I sold it. I had several thousand dollars last fall, and had at all times the ability to get money.” I observe that the last remark in the above statement of plaintiff is quoted against him in the prevailing opinion, coupled with the observation that plaintiff’s delay “is not explained, or in any way attempted to be explained, or excused. In fact, it seems no excuse for this delay existed.” And the same is reiterated in other parts of the opinion. But there is no dispute that plaintiff’s financial condition was as he stated until he sold his ranch claim; and his repeated borrowings, in his struggle to fulfill the terms of said contract, and save said lot and his investments therein from forfeiture, corroborate plaintiff’s statement as to his scant resources. And, finally, when plaintiff had exhausted his savings and borrowings, the defendant company, without notice, aud without demand on plaintiff to complete the fulfillment oí said contract, already so far advanced, and without process of court, unlawfully and forcibly entered said premises, evicted plaintiff', and assumed and held what he had invested therein. Such is the case shown by the record, without dispute. If we sat like schoolmasters, with watch in hand, to question litigants who come into court within the period prescribed by statute as to- the reason why they did not come a little sooner, I think the excuse given by plaintiffj corroborated by all the other facts *73shown, is worthy of consideration. But, in my’opinion, it is more to the purpose of the law to inquire whether circumstances have so changed while plaintiff delayed his action as to make it inequitable to compel a conveyance. But no such circumstances are shown. It is said in the prevailing opinion, “ the circumstances and conditions of the property were rapidly changing, and increasing in value.” It we look to the record we find that the only change wrought in the condition or circumstances of the property was that, after unlawfully evicting plaintiff, the defendant townsite company expended on said premises the small sum necessary to finish and avail itself of plaintiff’s expenditures thereon; and, in that condition, defendant has ever since held and enjoyed the use and profits thereof. The increase in the value of the premises arose from nothing that defendant did in relation thereto, so far as shown by the record, but from general and remote causes. If the property rose in value from the discovery of mines, for instance, in adjacent country, is that to be regarded as. a blessing to which the defendant corporation had a peculiar and superior right? And if defendant had wrongfully and oppressively invaded plaintiff’s rights, declared forfeiture, and made eviction, without notice dr process of court, and confiscated plaintiff’s interests and investments in said property, are such acts to be regarded as justified, beyond rectification, because the property has risen in value through natural and remote causes? Because of such blessing upon the land by nature, would it be inequitable for the court to redress the wrong done to plaintiff, and see that right, fairness, and justice prevail? These questions are not answered by voluminous quotations from decisions founded on an entirely different state of facts. The increase in value may have been the very motive which impelled defendant to such arbitrary and unlawful conduct; at least, it was losing nothing, but gaining much. Notwithstanding such showing of constant increase in value, this court, in shutting the door of the trial court against plaintiff, remarks, “ Could the plaintiff lie by, and wait to see whether his contract was a good one” ? The record answers that when plaintiff was thrust out of the property he was compelled, by his impoverished condition, to lie by, and see the property which he had so *74nearly gained constantly rise in value in the unlawful grasp of defendant, and that increase was without the act of defendant, except the expenditure of a trifling sum to avail itself of plaintiff’s investments. There was no lying by to see whether the bargain was a good one, for the record shows that the property was constantly increasing in value. By borrowing money, and offering payment of the sums required by the contract when the last installment fell due, plaintiff showed himself willing and eager to carry out the contract. After he was dispossessed, of course, plaintiff could not finish said house, and defendant made the same impossible by causing said house to be finished for its own advantage. This court does not venture to hold, and I apprehend no court would, under the authorities, hold, that time was of the essence of the said contract. Besides, this defendant had no lawful right to undertake to enforce forfeiture and eviction without demand, or notice or process of court. Defendant had power to enforce its contract by lawful means and processes, and this is sufficient for any citizen of this state. The facts, as disclosed by the record, in my opinion, fully warranted the decision of the trial court awarding specific performance.