Neely's Appeal

Mr. Justice Paxson delivered the opinion of the court, November 19th 1877. This is a stale claim. On the 6th day of September 1847, Z. W. Remington filed his bill of complaint against R. E. McGowin, setting forth that the said McGowin, then a practising surveyor and civil engineer, had obtained from complainant a large number of plans, papers, drafts, surveying instruments and furniture, as set forth specifically and at length on the record in said case; that the said McGowin was making copies of said plans, &c., and that ho retained possession and refused to deliver the same to the complainant, to whom they rightfully belonged, and praying the court to order and decree the return and delivery of said plans, &c., to plaintiff. The cause was so proceeded in, that on the 13th day of January 1849, the court made a decree that the said McGowin should deliver the papers, maps, plans, &c., to the master for the purpose of having the same delivered to the complainant. It is now alleged that the papers were never delivered in accordance with this decree. Remington remained in Pittsburgh for several years after the termination of his case, making little effort to enforce compliance with the decree, and removed to Iowa in 1854, where he resided until 1871, and then returned to Pittsburgh. On the 5th day of June 1874 this bill was filed against Mary II. Neely, executrix of Condorcet McGowin, deceased, and J. G. Thompson, M. E. Cozad, and C. C. Cozad, copartners as Cozad, Thompson & Co., setting forth the former decree in the suit against McGowin; that said decree has never been fully complied with; that R. E. McGowin died possessed of that part of the property not delivered, leaving the said Condorcet McGowin, his brother, in possession ; that Condorcet McGowin sold or in some way disposed of said property to said Cozad, Thompson & Co., and that the same is still in their possession. The complainant attempts to account for the extraordinary delay in enforcing the decree in Remington v. McGowin by alleging that the records of said case were lost or stolen from the office of the prothonotary, involving, as he was advised and believed the commencing of his suit de novo. But it appears that the proceedings wrnre spread at length upon the records, so that if the fact be that the papers filed in the cause were lost, the cause could have been proceeded in so far as regards the enforcing of the decree, which was all that remained to be done. The master finds that Cozad, Thompson & Co. purchased the plans in good faith for a valuable consideration, and without notice of any adverse claim. — 390 — Also, that the plaintiff was guilty of gross laches in allowing R. E. McGowin and Condorcet McGowin to retain all the evidence of ownership for so long a time, and is thereby barred from making any claim. We think the facts of the case fully justify the findings of the master. This is not a proceeding against R. E. McGowin. It is an attempt to enforce the original decree against him by following the property after his death in the hands of innocent third parties. Were R. E. McGowin living and in possession of the property the decree might possibly be enforced against him, as the master finds there is sufficient evidence to overthrow the presumption arising from lapse of time that the original decree had been complied with. But R. E. McGowin died in 1865; by his will he bequeathed the use of his surveying instruments, drafts, &c., to his brother, Condorcet McGowin, who took possession of the plans, drafts, &c., and in 1873 sold the same to Cozad, Thompson & Co. The master finds that “ the plaintiff was present at the office of Condorcet Mc-Gowin when- Cozad, Thompson & Co. were making copies of some of the plans which he now claims. He then made no claim. He was afterwards present when Cozad, Thompson & Co. hauled them away. He asked Condorcet McGowin -what this meant, and was told that they were hauling them away for convenience in copying. He made no claim to the plans, and did not object to their being taken away. All the circumstances indicated that Condorcet McGowin was the owner of the plans, and there was nothing in the conduct of the plaintiff to lead the purchaser to think otherwise. The appellants set up the Statute of Limitations as a defence, and the learned master held it to be a bar to this suit. In this we think he was right. In relation to lapse of time equity follows the analogy of the Statute of Limitations: Story’s Equity, sect. 529; Todd’s Appeal, 12 Harris 429; Ashhurst’s Appeal, 10 P. E. Smith 290. But laches for a much shorter time than six years, aided by other circumstances, will bar the right: Evans’s Appeal, 31 P. E. Smith 278. Here the plaintiff has been guilty of gross laches. When he filed this bill, the original decree which he thus sought to enforce, had been of record for twenty-five years ; R. E. McGowin had been dead nine years, and the property in dispute had passed into the hands of other parties in entire good faith. The plaintiff saw a portion of it in their possession, and made no claim to it until after a bona fide sale to an innocent purchaser. It surely needs no argument to show that he has no standing in a court of equity. The decree is reversed, and the bill dismissed with costs, to be paid by the appellees.