On Petition for Rehearing.
RITTER, District Judge.In his Petition for Rehearing Appellee argues that the Schumans had no cause of action to recover a half interest in the property in question and, therefore, the statute of limitations did not commence to run until the note was fully paid. This is for the reason, they claim, that the property, in addition to the pledged ring, was transferred to Wells as security for the payment of the note. Appellee’s position is based on the rule set forth in Cohn v. Cohn, 1936, 7 Cal.2d 1, 59 P.2d 969, 973, which states: “But where the decedent held legal title as security and the debt remained unpaid at his death, there is no immediate duty to transfer the property, and in such cases the statute is not set in motion by the death of the holder of the legal title.”
The rule of the Cohn case applies only if the real property Appellee now seeks was transferred to Wells as security for the payment of the note and the note was unpaid at Wells’ death.
In our opinion the rule of Cohn v. Cohn is inapplicable here for two reasons.
I. The Cohn rule is inapplicable in this case because the property in question was not transferred to Wells at the time of the execution of the note when the ring was pledged, but was transferred at later dates, and not at all as security for the payment of the note. The reason for the transfer is contained in the trial court’s finding (Tr. 22) which states:
“In 1941 Wells used one of the deeds which J. J. Schuman and wife had signed in blank and sent to him for use in selling partnership property to third persons, to convey the partnership property involved herein to himself. He gave no notice at any time of this fact to either of the Schumans * *
The finding does not disclose any intention of the parties to hold the property as a security. In fact, the Schumans had no notice at all of the transfer and therefore could not have intended the transfer as security for a debt. The evidence on this point is somewhat in conflict, but the finding is clearly supported by the evidence. In a prior finding (Tr. 22) the trial court states:
“A diamond ring was pledged by the Schumans to secure the note.”
If the Cohn rule applies in this case it is limited to the ring alone, the sole security, and in that regard Appellee has received an affirmance of the lower court’s judgment.
II. All references in the Petition for Rehearing to facts inconsistent with a settlement between Wells and the Schumans are to events which occurred sometime prior to Wells’ death when the partnership was functioning. However, there is nothing inconsistent *222with the theory of a settlement near the date of Wells’ death under the facts appearing thereafter. These facts show: (1) Morris Schuman outlived Wells one year and nine months, was in Shawnee on several occasions after Wells’ death, talked with the executor of Wells’ estate and never mentioned the properties. (Tr. 141, 146, 147, 148); (2) All of the properties were listed in Wells’ inventory and in the final decree (Tr. 139) and in his estate tax return. (Tr. 141); (3) J. J. Schuman went to Shawnee after Morris Schuman’s death and talked with the executor of Wells’ estate and never mentioned the property in issue. (Tr. 86, 87); (4) J. J. Schuman filed an action in an Oklahoma state court against the Wells estate on August 31, 1948, (Tr. 151) to recover property listed in the deed of July 19, 1941, (Tr. 152) and stated that he was fully cognizant of all the facts in this case in 1948 when the state court action was filed, had discussed the entire matter with his mother at that time, and the properties in question here were not mentioned nor was a demand made until the present action was filed April 17, 1952, almost four years later. (Tr. 206, 207); (5) Morris Schuman knew the facts in this case before he died (Tr. 207) and never mentioned the properties in question before his death.
Such facts indicate a settlement and in that event the note would have been fully discharged.
Appellee based the Petition for Rehearing on the ground that the statute of limitations had not expired when the action was filed in 1952. However, the equitable bar of laches is also present in this case. It is the prejudice caused by the delay in seeking relief after the action accrues which determines its application. Here there is great conflict in the evidence and much of the truth sur'rounding the controversy cannot be determined at this time with any degree of assurance. Appellants are placed at a disadvantage in attempting to prove events obscured through lapse of time.
Petitioner’s claim that the court found the note was paid after Wells’ death is so fallacious as to require no comment. Ordinary principles of grammar teach that the clause, “After Wells’ death in 1946”, in the court’s sentence has no reference to payment of the note.
Rehearing denied.