Stevenson v. Saline County

Sherwood, C. J. The motion for a new trial has not been incorporated in the bill of exceptions, and, though contained in the transcript, cannot be noticed. (Pacific R. R. Co. v. Opel, decided at last term; Collins v. Barding, infra p. 496.) But could this preliminary impediment be overcome, it would avail the plaintiff nothing, and this, because: His suit is to redeem lands sold under what is termed colloquially a “ school mortgage,” which was made to Saline county in August, 1860, to secure a bond due in December of that year. In May, 1864, the land was, under an order of the county court, sold, and a deed made by the sheriff to the [429] county. In April, 1869, under an order of the county court, its agent Berryman sold the land to defendant Van-meter for $3,500, (this being the amount of the mortgage debt and interest,) $500 of which was paid down, and the residue in one and two years. About six weeks after Van-meter purchased, plaintiff came to the place, stayed all night, stated to Vanmeter that he had understood he had purchased his land, and then said that “ all he claimed was Ms wife’s dower” This testimony of Vanmeter’s was met by plaintiff’s rather negative statement, that he “ did not think” he ever made the statement attributed to him. After that, Vanmeter completed the payment of the purchase money, and made improvements prior to this suit, which was not instituted until April, 1873, two years subsequent to the completion of the purchase by Vanmeter, and shortly after the appearance of a decision of this court, that counties could not become purchasers at sales made under mortgages of the character involved in the present suit. (Ray county v. Bently, 49 Mo. 236;) and that such sales were wholly invalid. And aside from plaintiff’s statement of his only claiming his wife’s dower in the land, there is testimony that plaintiff had in 1868, through the agency of his son, treated the land as belonging to the •county, by procuring an order to be made for the sale of the land to his son, which was never complied with. In this order permitting the son to buy, the land is spoken of as that “ formerly owned” by the father. And of the substance of this order, Vanmeter, as his testimony shows, although he had not seen the order itself, was not ignorant. 'This recognition of title in the county, the plaintiff, after having made it, and after another has acted on it, expended money and made improvements, is surely estopped to recall or deny. Besides, this proceeding to redeem is addressed to the chancery jurisdiction of the court. It is too familiar a principle to require discussion, that equity does not foster the prosecution of stale demands, •encourage laches, or lend its aid to any but the prompt and [430] vigilant. Here, the land could have been sold for the default in the payment of the debt in 1860, but this is not done until 1864. The debt, in consequence of interest, is rapidly increasing in amount, and the land affording with every year less security for the debt. The plaintiff' pays not a cent of his debt during all these long years, but recognizes the validity of the sale. And it is not until the animating influences of the decision referred to, reach him, that he attempts to redeem. Meanwhile, as before stated, the land has been sold by the county, bought, paid for and improved by Vanmeter. We are fully of opinion, that the facts already adverted to, as well as others having tendency in the same direction, bring this case within the rules respecting laches and estoppel heretofore enunciated by us. (Wells v. Perry, 62 Mo. 573; Landrum v. Union Bank, 63 Mo. 48; Collins v. Rogers, Id. 515; Evans v. Snyder, 64 Mo. 516; Medsker v. Swaney, 45 Mo. 273; Tatum v. Holliday, 59 Mo. 422; Huntsucker v. Clark, 12 Mo. 333). The court below based its decree on the ground of estoppel alone; but the decree may also rest upon that of laches. We therefore affirm the judgment. All concur. Aeeirmed.