Hathaway v. Noble

*512 Smith, J. The 8th cause of demurrer assigned is, that the plaintiff’s claim is stale. The defendants’ mortgage was executed in July, 1848. She obtained a judgment to foreclose it February, 1849, and has since been in the possession of the mortgaged premises, taking the rents and profits, with no attempt at interference from any source, until this suit was brought in 1874, — a period of twenty-six years from the time her title accrued. The mortgagor has in the mean time died. Many of the defendants’ witnesses, it must be presumed, are dead, and probably the memory of those yet living may have become impaired by lapse of time or the infirmities of age. Under such circumstances, to compel her to account for the rents and profits, and for expenditures on account of the mortgaged property, would most likely be lending the aid of the law to allow great injustice to be done under the name or pre-tence of correcting fraud. During all this time her mortgage was on record, which, with the record of her judgment, wrould have afforded the plaintiff, or any other creditor of Moses Noble, exact information as to the condition of the defendants’ title, if he had shown any vigilance in seeking for information where he would be most likely to find it. There is no charge in the bill that the assignees, Messrs, llackett and Emery, have not done, in good faith, everything which the trust, accepted by them in 1848, required of them. So far from attacking the validity of the assignment, the plaintiff claims that by virtue thereof he is entitled to maintain this suit. No fraud or collusion is charged upon the assignees. They are attorneys of ability and large experience in the practice of the law. If the mortgages executed by Moses Noble were fraudulent, as charged by the plaintiff, it is inexplicable how that fact should escape detection by the assignees. In view of the great lapse of time, and the acquiescence of the assignees and creditors in the validity of these mortgages, the presumption is of the strongest character that the charge of fraud set up in the bill is unfounded. “ It is a rule of equity, founded upon the analogies of the law, where such analogy exists, and sometimes upon its inherent doctrine, not to entertain stale or antiquated demands, and not to encourage laches and negligence. Hence, in matters of account, although not barred by the statute of limitations, courts of equity refuse to interfere after a considerable lapse of time, from considerations of public policy; from the difficulty of doing entire justice when the original transactions have become obscure by time, and the evidence may be lost; and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim, vigilantibus, non dormientibus jura subveniunt.” 1 Story’s Eq. Jur., sec. 529. Courts of equity discourage stale demands “ by refusing to interfere where there have been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights.’ 2 ib., sec. 1520. In Smith v. Clay, 3 Bro. Ch. Rep. 640, Lord CameROK said, — “ A court of equity, which is never active in relief against conscience or *513 public conscience, lias always refused its aid to stale demands, whore the party has slept upon liis right, or acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.” The authorities upon this point, both English and American, are numerous and conclusive, and are cited in 2 Story’s Eq. Jur., ch. 42, sec. 1520, n. 1. 1 In Bassett v. Company, 47 N. H. 442, where the plaintiff had acquiesced for six or seven years in the claim and use made by the defendants of his land, Bellows, J., said, — “ In equity, therefore, at leasjnthe cl.dm the plaintifF had purchased must be regarded as somewhat ,.N •, an-', on an application to the discretion of this court to prevent injustice, the fact that such purchases were so made and for the o’.pets sinum by the proofs, would be a strong if not decisive objection to granting, the injunction.” J It is true that it is a rule in equity, well founded, that no length ol time will bar a fraud. Yet a court of equity will not impeach a transe-action on the ground of fraud, where the fact of its having been com* mitted has been within the knowledge of the party many years. 2 Dan§ Ch. Prac. 736. But the plaintiff alleges that he has recently discovered the fraud set up in the bill, and that the rule, therefore, does not apply in this case. But all the circumstances of fraud which he alleges might have been discovered if he had exercised ordinary diligence. The defendant’s mortgage was promptly recorded. She has been in open possession of the mortgaged premises for twenty-six years, taking the rents and profits. A demand might at any time have compelled her to render an account under oath of the amount due her secured by mortgage, under penalty of losing her security. Rev. Stats., ch. 184, sec. 7; ib. ch. 131, sec. 8. There is no allegation that she has concealed any facts, or given the plaintiff any false information, or that the assignees -were ignorant of her mortgage and judgment, or of the consideration of the same. I cannot see that the plaintiff has exercised any diligence whatever in ascertaining the true condition of the defendant’s title. The public record of her mortgage, and her open and notorious possession for more than a quarter of a century, acquiesced in by Moses Noble, his assignees and legal representatives, was notice to the plaintiff amply sufficient to put him upon inquiry, to say the least, and therefore to charge him with a knowledge of all he would have learned upon inquiry, and his neglect is wholly inexcusable. The argument of the defendant’s counsel in this connection is in point. “ He cannot avoid the effect of the lapse of time, and compel the defendant to answer simply by averring that he has just discovered the fraud, ‘otherwise,’ says Mr. Eonblanque, — 1 Eq. 331, book 1, ch. iv, sec. 27, — £ the mere imputation of fraud might operate as a fraud, or the evidence might be lost by which the imputation might be repelled.’ Upon such pretences every title in the state might be overhauled back *514 to the date of the earliest conveyance, and tlie tenants be put to prove the consideration of every deed, however ancient.” For these reasons the bill must be dismissed. This result makes it unnecessary to examine the other causes of demurrer.