Pooler v. Hyne

BAKER, Circuit Judge

(after stating the facts as above).

[1,2] Appellee places some reliance upon the decree of the Posey county circuit court in the suit by the Fittons to quiet title. But the decree was a nullity as against Eliza Eukens who was “not found,” and also as against Fidelia Overton and William Clark Eukens who had died prior to the institution of that suit. Thompson v. McCorkle, 136 Ind. 484, 34 N. E. 813, 36 N. E. 211, 43 Am. St. Rep. 334. And appellants claim that the decree is not even good as against Cecelia and Isabella, on the ground that notice by publication given to a married woman by her maiden name is not sufficient. But, under the Indiana decisions, it was sufficient and proper to publish notice to Cecelia and Isabella under the names they had been known by in Posey county up to the time of their departure therefrom, especially as the outstanding interest to be affected by the Fittons’ suit was a matter of record in the names used in the publication notice. Jones .v. Kohler, 137 Ind. 528, 37 N. E. 399, 45 Am. St. Rep. 215; Baugher v. Woollen, 147 Ind. 308, 45 N. E. 94. The decree was therefore effectual to bar whatever interest Cecelia and Isabella had in 1898; but, inasmuch as they subsequently acquired other interests by inheritance from their sister Eliza and by conveyance from their half-brother John B. Over-ton, the decree is only a partial defense of appellee’s claim of title.

[3] Affirmance of the decree is also asked on the ground that the deed to Walker was void for the reasons stated by the master in the fourth finding. We agree that Walker was only a nominal trustee and that the validity of the deed depends on the answer to the question whether Overton could have made a valid deed directly to the beneficiaries of the trust. Section 68 of article 3, page 425; of Revised Statutes of 1843, so far as applicable, reads as follows:

“No remainder shall be created upon an estate for life of any other person or persons than that of the grantee or devisee of such estate, unless such remainder be an estate in fee.”

Although the deed is in substance a conveyance of an estate for life to Fidelia, with remainder over in fee to the four Eukens- children, with a reserved estate for the life of the grantor Overton, appellee contends that the remainder was created upon an estate for life of the grantor alone and therefore was violative of the statute. But, as we read the statute, a remainder could lawfully be created even upon a life estate reserved to the grantor alone, provided that “such remainder be an estate in fee.” And since the remainder in the deed in question was an estate in fee, we are of the opinion that the deed was valid.

[4] But if there is any doubt about the validity of the Overton deed to Walker, trustee, the decree pf the circuit court of Posey county, rendered in 1848, and described in the second finding, was sufficient to estop Joshua Overton from claiming that the land was his to devise, and Fidelia Overton from claiming that her title and possession came through Joshua’s will and not through the deed. Bruce v. Osgood, 154 Ind. 375, 56 N. E. 25.

[5] So, in 1849, after Joshua’s death, Fidelia in point of law came into possession as a life tenant under Joshua’s deed, no matter what she may have believed or asserted with respect to her having a title in fee as devisee under Joshua’s will. Appellants contend that the finding that Fidelia from 1849 to 1865 claimed and exercised all the dominion of an owner in fee and the finding that the possession of Fidelia’s grantees was adverse to the remaindermen are not supported by the evidence. We have examined the evidence on these points and confess that it is rather meager and obscure (we shall advert to this condition of the evidence later), but Fidelia’s deed to McDonald unmistakably established that on November 17, 1865, she solemnly asserted ownership in fee, deraigning her title through Joshua’s will and not through his deed; and from the same evidence and from the further evidence that McDonald paid the full cash value of the land at the time, it is well established that McDonald entered into possession believing that he had lawfully become the owner of the fee. His possession was unquestionably adverse to all the world except the remaindermen named in the Overton deed to Walker, trustee. But, since that deed was properly of record, McDonald was chargeable with notice of the remainder in fee, and therefore his possession as grantee of Fidelia, who in truth was only a life tenant, was not adverse to the remaindermen, and the statute of limitations began to run as against them only in April, 1897, on the death of Fidelia. That is, if a life tenant repudiates his tenancy and asserts a claim to the fee, inasmuch as the possession of the life tenant and those who take/ under him is on the trust of holding and defending possession in the interest of the remaindermen, no repudiation of the life estate is of any effect against the remaindermen until notice of such repudiation is brought home to them. Haskett v. Maxey, 134 Ind. 182, 33 N. E. 358, 19 L. R. A. 379; Herring v. Keneipp (Ind.) 102 N. E. 834; 1 Cyc. 1032, 1056; 16 Cyc. 616, 637; Zeller v. Eckert, 4 How. 290, 11 L. Ed. 979; and citations in 4 Rose’s Notes, 505; Mettler v. Miller, 129 Ill. 630, 22 N. E. 529; Cassem v. Prindle, 258 Ill. 11, 101 N. E. 241. And in the present case the master did not find that the remaindermen had notice of the repudiation of the life tenancy.

[6] Although in Indiana the statutory period for adverse possession is 20 years, and conceding that the statute in this case did not begin to run against appellants until 1897, it does not necessarily follow that the part of their claim which was not barred by the Fit-tons’ decree must be recognized in a court of equity. The equitable doctrine of laches is well stated and explained in Patterson v. Hewitt, 195 U. S. 309, 25 Sup. Ct. 35, 49 L. Ed. 214, a leading case. A full collection of the authorities is given in 16 Cyc. 152 et seq. And the Supreme Court of Indiana, citing and relying on Patterson v. Hewitt, supra, has stated and applied the doctrine of laches in its broadest aspects. Ryason v. Dunten, 164 Ind. 85, 73 N. E. 74.

While courts and text-writers have said that it would not be well to limit and restrain the doctrine by any attempt at precise definition, and that the question is to be determined by the particular facts of each-case, yet the general nature of the doctrine may be appreciated in a negative way by recalling what it is not. Though the idea of delay is involved, the doctrine of laches is not an application of any statute of limitations, für, if the statutory time had fully run, no consideration would need to be given to the conduct and position of the parties. And though the conduct of the parties is to be weighed, the doctrine of laches is not coterminous with estoppel by conduct, for if one’s conduct at the time of another’s entry upon land prevented the pressing of a claim, no consideration would need to be paid to the lapse of time' thereafter. That is, although the conduct of the complainant has not created an estoppel in pais, and although less than the statutory period of limitations has run, a court of conscience will compare the. conduct and the relative positions of the antagonists, and if on a balancing of the scales of justness and fair dealing the pointer inclines toward the defendant, the chancellor will refuse to be moved by the prayer of the complainant.

[7] Appellants contend that, because they were brought into court as defendants, the doctrine of laches, which is merely a shield and not a weapon of offense, cannot be applied to them. But appellants we're really the attacking parties. They came into Posey county and disturbed a repose of nearly 60 years by procuring the appointment of Bozeman as trustee in succession to Walker, and putting the deed from Bozeman to themselves on record. This was an invasion and a drawing up of the line of battle. And when the Hynes people invited appellants into court, they filed their cross-bill in which they affirmatively prayed for title, possession, and an accounting of rents and profits. The decree from which they are now appealing adjudged that there was no equity in their cross-bill and dismissed it for lack of merit. Unless they can get rid of that part of the decree, they are in no position to attack the part which upholds the original bill. Consequently the doctrine of laches is applicable.

Two well-recognized phases of the doctrine apply to this case. One is the change in the position of the occupiers of the land and the increase of value during the interval. 16 Cyc. 161, 162. Fidelia Overton died in April, 1897. Thereupon appellants’ right of possession accrued under the deed made 51 years before. No inquiry was •made, no move was inaugurated during more than 12 years. Absence from the state and lack of means are given as reasons for the ■delay. But these are reasons that cannot be accepted. 16 Cyc. 169. A suitor with no money may have relief in equity. And furthermore, appellants show no change in their circumstances throughout the time from the death of Fidelia down to the bringing of this suit in November, 1909. So, with the right of possession accruing to them in April, 1897, they were charged with the duty of learning what was going on with respect to possession. During those 12 years they knew that some one other than themselves was paying the taxes, keeping up repairs, and improving the estate, if those things were being done at all. And if the taxes were not kept up, 12 years were a double allowance for losing the fee through tax sales and deeds and decrees thereon. The Hynes people did not buy from the Fittons until the year after Fidelia’s death. If appellants had moved with sufficient promptness, the Hynes people certainly never would have put their money into paying the full value of the land together with the full value of all of the improvements- that had been made ■ by McDonald and the Fittons, at least until after the question of title had been completely settled. But not only were the present occupiers permitted to come into possession during the silence of appellants, but during their continued silence this estate of 160 acres has increased frorn a value of $8,000 to a value of $20,000, and appellants are not merely demanding the recovery of a $20,000 estate but they also are demanding from the occupiers an accounting for rents and profits of more than $1,000 a year. And inasmuch as it is unquestionable that McDonald and the Fittons and the Hynes have all acted in good faith and have not only paid the full value of the fee at the time of their respective purchases but have greatly increased the value of the estate by improvements and cultivation, while the appellants have never invested a dollar and are not even remotely of the blood of Overton, the appeal of conscience is all on the side of the Hynes.

The other phase is the effect of the delay upon the state of the evidence respecting what occurred between 1849 and 1865. 16 Cyc. 163, 164. Joshua Overton died in 1849. Fidelia was devisee and executrix. Joshua’s estate was closed in the probate court in 1852. Fidelia and her children remained in Posey county until 1856. They lived in neighboring counties in southern Indiana until the land was deeded to McDonald in 1865, whereupon Fidelia and her children, who were then all of age, left the state. The master finds that Fidelia, after Joshua’s death, claimed and exercised the dominion of owner in fee of the 160-acre estate. As we have hereinabove noted, this finding is not very clearly supported by the testimony. The witnesses were old men, upwhrds of 70 years at the time of giving their testimony; but that would'only make them lads in their teens when Joshua Over-ton died, and while his widow and stepchildren occupied the land between the time of Joshua’s death and their departure from Posey county. This means that all of the people in the neighborhood of the land who were adults and who were conducting the business of the community in those days have long been dead. If in truth the Dukens children had notice of legal advice given to their mother that the deed to Walker, trustee, was void and that their mother had title in fee as devisee under Joshua’s will; or, if in 1865 the children received a portion of’the consideration paid by McDonald for the land; or if without receiving any of McDonald’s money they had notice of the terms of the sale to McDonald and . remained silent—an estoppel in pais would have been created, which would at once have rendered the possession of McDonald and his successors impregnable, and no running of time would be necessary in their behalf. It seems probable that some one or more of the above supposititiously stated circumstances must have existed, for Fidelia and her children were living together in those days and the disposition of what seems to have been substantially all of the family property would have been a matter of too great family concern not to have been known to some or all of the children. Furthermore, the settled and universal belief of all the old people of the neighborhood (who now are mere carriers of a tradition) probably had some basis which is now obscured by time. In such circumstances the delay of 12 years seems- to us unconscionable. It is not merely the ordinary 12 years from the time of a lawsuit back to the time of the transactions in question; but it is the 12 years inter-. vening between the time of the lawsuit and a time when witnesses, who possibly were alive and in possession of important facts, were already at the verge of senility or death. When we note that more than half a century has elapsed between the transactions to be investigated and the beginning of the suit, we are impressed with the belief that the conduct of appellants in allowing 12 years to go by, during which their adversaries' were resting in peace and taking no steps to investigate occurrences dating back to 1849 and during which much testimony was lost ip all probability, was so unconscionable as to justify the chancellor in declining to heed their prayer.

The decree is affirmed.