dissenting: I signed the petition for a rehearing in this action so that again this long drawn out controversy could be reconsidered. I cannot make up my mind that the petition should be allowed.
On 30 March, 1896, Erancis Nixon, Jr., died and left several children, all are dead except Cornelia T. Jessup, the plaintiff, a minor six years of age at her father’s death. On 11 August, 1921, she brought this action, nearly ten years after she became of age, against her uncle the defendant.
The case came on for trial at April Term, 1923. The issues submitted to the jury and their answers thereto will explain the controversy:
“1. Was the deed from David Cox, mortgagee to the defendant, invalid and ineffective to pass the equitable title to the land in question, because made without notice of sale and advertisement, as alleged in the complaint? Answer: Yes.
2. Was said deed invalid and ineffective to pass the equitable title to said land because the same was sold subject to the homestead rights of the children, as alleged in the complaint? Answer: Yes.
3. What was the fair market value of said land at the time of said sale, to wit, 1 July, 1896 ? Answer: $1,250.
4. Did the defendant fraudulently procure the foreclosure of said mortgage and the sale of said land and cause the same to be sold subject to the dower interest of the widow and the homestead rights of the children of Francis Nixon and thereby obtain the same at a grossly inadequate price, as alleged in the complaint? Answer: No.
5. Did the defendant, while administrator, and with a purpose of purchasing-the property in question at an undervaluation cause or know*127ingly permit it to be understood at sucb sale tbat be was purchasing sucb property for the benefit of tbe heirs of Eraneis Nixon, deceased, as alleged ? Answer: No.
6. Is plaintiffs’ cause of action barred by tbe ten-year statute of limitations, as alleged in tbe answer? Answer: No.
7. Did plaintiffs discover, or could they by due diligence have discovered prior to three years before tbe commencement of this action tbe fraudulent conduct of defendant alleged in tbe complaint and referred to in tbe fourth and fifth issues? Answer: (Not answered by jury.)
8. Is plaintiff’s cause of action based on alleged fraudulent conduct of defendant barred by tbe three-year statute, of limitations as alleged in tbe answer? Answer: (Not answered by jury.)”
Judgment on tbe verdict was rendered for tbe plaintiff and on appeal this Court found error. 186 N. C., 100. Tbe case came on for trial again at April Term, 1928, and tbe following issues were submitted to tbe jury and their answers thereto :
“1. Did tbe mortgage sale from Dr. David Cox, to tbe defendant, Thomas Nixon, fail to comply with tbe terms of tbe mortgage, in tbat said sale was bad and made without written notice for thirty days tbat prompt payment was expected, and, in default thereof, sale would be made under tbe power of tbe mortgage, as alleged in tbe complaint? Answer: Yes.
2. Did said mortgage sale fail to comply with tbe terms of said mortgage, in tbat said sale was bad and made subject to tbe dower rights of tbe widow, and to tbe homestead rights of tbe children of Francis Nixon, Jr., as alleged in tbe complaint? Answer: Yes.
3. Is plaintiff’s cause of action barred by tbe statute of limitations, as alleged in tbe answer? Answer: No.”
Tbe only serious contention is tbat tbe defendant Thomas Nixon failed to comply with tbe terms of tbe mortgage “in tbat said sale was bad and made without written notice for thirty days tbat prompt payment was expected,” etc.
It will be noted tbat tbe defendant was administrator of Francis Nixon, Jr., and tbe judgment at April Term, 1923, found: “What was tbe fair market value of said land at tbe time of said sale, to wit, 1 July, 1896? Answer: $1,250. Did tbe defendant fraudulently procure the foreclosure of said mortgage and tbe sale of said land and cause tbe same to be sold subject to tbe dower interest of tbe widow and tbe homestead rights of tbe children of Francis Nixon and thereby obtain tbe same at a grossly inadequate price, as alleged in tbe complaint? Answer : No.”
From tbe proceeds of tbe sale and other assets, defendant bad 53 per cent to pay on Francis Nixon, Jr.’s, debts. Tbe fair market value of tbe *128land at the time was $1,250, which would about pay the debts of Francis Nixon, Jr., and practically nothing would be left for plaintiff, heir at law, if all the debts were paid. As the jury found there was no fraud in the sale, the notice under the mortgage was technical, and after a quarter of a century such a bona fide sale that is without fraud should not be resurrected. Defendant under the sale went into possession of the land and has been in possession ever since. Under the facts and circumstances of this case, I think the principle and laches applies and this contest between blood-kin, a niece and uncle, should be forever buried.
The principle is well stated in McIntosh, N. C. Prae. and Proc., p. 103-4, as follows: “It does not follow that, because the statutes of limitations may bar a remedy in equity as at law, the court will grant' equitable relief in every case where the statute has not barred. Laches, or unreasonable delay, independently of any statute of limitation, will prevent relief in equity, upon the principle that equity aids the diligent and not the slothful. "When a claimant has slept on his rights until the rights of innocent third persons have intervened, or it would be otherwise inequitable to change the existing conditions, equitable relief may be denied, although the statute of limitations has not barred the claim. Conscience, good faith, and reasonable diligence are necessary to call forth the exercise of the peculiar powers of a court of equity. No particular rule can be given as to what will constitute laches; it must depend upon the circumstances of each case.”