What constitutes such laches or acquiescence as will debar a party from equitable relief which he might otherwise have had, is a matter concerning which there can be no definite rule applicable to all cases. Time is not alone to be considered, but all the circumstances attending both action and non-action.
The principle embraced in the maxim mgilantibus non rlormientibus aequitas subvenit may be invoked whenever a court of equity is asked to afford relief; and when so invoked, it is for the court to determine whether equity requires that the relief sought should be given.
In the present case it appears that Edward F. Adams having, on February 11, 1876, made a mortgage upon certain vacant lots in Illinois, to secure his two notes for $1,300 each, maturing in one and two years, respectively, never thereafter paid either taxes or assessments upon the lots, or principal or interest of the mortgage; that in 1886, the owner of the notes caused a sale under the power contained in the mortgage deed to be had, and at the sale himself bid in the property for the entire amount of the mortgage debt.
That more than four years thereafter the mortgagor, who for twelve years had been a resident of another State, quit-claimed without consideration his interest in the premises to the complainant; that the purchaser at the mortgage sale has paid all the taxes for seventeen years,'amounting to some §1,300; that he has made valuable improvements upon a portion of the lots and sold others.
The sale was one which might have been set aside had application been made in proper time; but we think that the circumstances show inexcusable laches on the part of the mortgagor. Not until there had been a considerable increase in the value of the property and it had come into demand, was an offer to redeem made. In Bush v. Sherman, 80 Ill. 160, in discussing this subject the court said: “ The principle that lies at the foundation of all the cases in this court upon this subject is, the party Avho challenges a sale on account of irregularities that may have intervened, must be diligent in discovering that which he alleges will avoid the sale, and diligent in his application for relief.” The cases in Avhich the principle above stated has been applied in this State are numerous. Hoyt v. Pawtucket Inst. for Savings, 110 Ill. 399; Speck v. Pullman Co., 121 Ill. 60; McHany v. Shenck, 88 Ill. 365; Fitch v. Willard, 73 Ill. 107; Estes v. Furlong, 59 Ill. 302; Hamilton v. Lubukee, 51 Ill. 420; Sloan v. Graham, 85 Ill. 30; Williams v. Rhodes, 81 Ill. 571; Breit v. Yeaton, 101 Ill. 242; Munn v. Burges, 70 Ill. 604; Dempster v. West, 69 Ill. 613; Maher v. Farwell, 97 Ill. 56; McDonald v. Stow, 109 Ill. 40; Nichols v. Otto, 132 Ill. 91.
It is urged by appellant that the foreclosure proceedings, not being in compliance Avith the statute, Avere utterly void, and that no rights could be acquired thereunder. It is true that such proceedings have sometimes been spoken of as void; but our attention has not been called to any case in Avhich, the distinction between a void and a voidable proceeding being in issue, the court has pronounced the making of a sale and the execution of a conveyance thereunder, such as this, void, unless the statute itself expressly declared that sales made without compliance with its provisions, should be void. If the foreclosure proceedings were void, then the title conveyed to Paul Gornell by the mortgage deed to him made by Adams yet remains in said Cornell. Appellant did not think it necessary to make either Paul Cornell or his assignee, Moore, a party to his bill, doubtless because he recognized that the title of Paul Cornell so acquired was divested by the foreclosure proceedings.
We are also, of the opinion that the mortgagor has acquiesced in the mortgage sale; nothing in addition to the failure by the mortgagor for years to pay either taxes or assessments upon this property, could more strongly show an abandonment of the property to the mortgagee and an acquiescence in whatever he did in respect thereto, than the fact that Adams, who made the mortgage, declares that he never had any equitable interest in the premises; that the conveyance to, and the making of the mortgage by him, was entirely for the accommodation of Paul Cornell, and that Paul Cornell testifies that his recollection of the transaction is, that it was a bona fide sale to Adams.
Here, then, was a piece of property in which it appears for fourteen years no one save the mortgagee and his grantees made any claim, or did anything indicating that they had or felt any interest in; upon which the mortgagee, meantime, made valuable improvements and paid large sums for taxes and assessments; and which property was under powers contained in the mortgage deed in July, 1886, sold and conveyed to the mortgagee, the sale being irregular and invalid; that thereafter the property considerably advanced in value. Under these circumstances, disclaiming that he had any interest in the property, in September, 1890, the mortgagor, without consideration, conveyed to the complainant.
The equity of the complainant, who has paid nothing, and who, before he took a conveyance, was informed by his grantor that he had no interest, can not be stronger than was that of his grantor; he is chargeable with the direct notice, to him given, that the mortgagor had acquiesced in the foreclosure sale, so that he made “ no claim whatever on the property.”
It is quite true that it is no concern of the mortgagee and his grantees upon what terms complainant acquired bis alleged title; but the conduct of his grantor prior to and at the time of the conveyance, and his declarations to the complainant, are pertinent upon the question of whether he had acquiesced in the foreclosure,
Hor can the fact that it does not appear that Adams was informed of the sale and the improvements made upon the property, prevent an arising of a presumption of acquiescence. He voluntarily went and remained two thousand miles away, in another State; he neglected to pay or attempt to pay taxes, which he must have known accrue on all real property; and when the fact of the sale was made known to him, he disclaimed all interest in the property.
As is said in Bush v. Sherman, 80 Ill. 175, quoted with approval in Cleaver v. Green, 107 Ill. 67-73, and Nichols v. Otto, 132 Ill. 91-98, “ The party who challenges a sale on account of irregularities that may have intervened, must be diligent in discovering that which he alleges will void the sale.
The decree of the Circuit Court is affirmed.
Deoree affirmed.