Kelly v. Green Bay, Winona & St. Paul Railway Co.

Cassoday, J. This being an equitable action, tried wholly by the court, the errors assigned by reason of the alleged admission of incompetent, irrelevant, and immaterial evidence, are unavailable, and require no consideration. The court found that each and every allegation of the answer was true. This finding seems to be sustained by the evidence. The very object of the contract of June 7, 1870, between Thompson and the railway company, was to procure the lands therein described for road-bed, depot, and other purposes. It was the duty of Nelly, as agent, superintendent, and general manager of the company, and as financial agent and manager of its funds, to procure and perfect such title, under and according to the terms of that contract, within two years from the date thereof, as therein required. He did obtain from Thompson a warranty deed of the same to himself within the two years therein named, reciting the same consideration as that mentioned in the contract. That deed was witnessed by and acknowledged before the president of the company. At that time the road had been finished to New London, upon and across the land in question, and depot buildings and improvements had been made thereon of the value of $20,000. Kelly negotiated the bonds and mortgages upon all the property of 334 the company, including the lands in question, as mentioned in the foregoing statement. It appears that the company had a full settlement with Kelly in 1872, at his request, and such settlement included moneys paid by him for rights of way. A similar settlement was made with him by the company in 1875. Kelly did not record his deed from Thompson until December 15, 1877, being about the time he was ejected from the management of the road, and the mortgagees took possession under the mortgages, and a receiver thereof was appointed. Kelly appears to have remained silent when the property of the company, including the premises in question, was sold and deeded to the defendant. In answer to a bill in equity filed in the federal court in 1879, Mr. Kelly in effect admitted that he had taken the title to rights of way and depot grounds in his own name; and that he either had conveyed or was willing to convey the same to the company. The defendant and its predecessor having been in possession for so many years, and made the improvements mentioned, the plaintiff must be deemed to have taken the legal title with notice of its equitable rights. State v. Wertzel, 62 Wis. 184; Martin v. Morris, 62 Wis. 418; Meade v. Gilfoyle, 64 Wis. 18. Mr. Kelly did not convey the premises to his sister, the plaintiff, until September 15, 1887; and she did not commence this action until January 29, 1889, more than eighteen years after the execution of the contract here sought to be foreclosed, and more than seventeen years after Kelly thus obtained the deed from Thompson, and nearly seventeen years after the consideration therein expressed became due and payable. Even had Kelly bought the land for himself, and paid for it with his own money, and had brought such action at the time of recording his deed, yet upon the facts stated the case would seem to come squarely within the principle that “ if the owner of lands, by express or tacit' consent, permits a railroad com 335 pany to enter thereon, construct its road-bed and track, and occupy the same for the purposes of a railroad, he thereby waives and loses his remedy by injunction or action for the trespass, and is relegated to proceedings to have his compensation and damages assessed.” Mil. & N. R. Co. v. Strange, 63 Wis. 178; Taylor v. C., M. & St. P. R. Co. 63 Wis. 327; Walton v. G. B., W. & St. P. R. Co. 70 Wis. 419; Cassidy v. C. & N. W. R. Co. 70 Wis. 440. In such cases equity will not interfere, but the party is driven to the remedy given by statute, or, in a case like this, to an action for the contract price. Certainly such equitable action cannot be maintained after such legal right of action has been barred by the statutes of limitation, as here. But inde-' pendent of that proposition, we are constrained to hold that the plaintiff is estopped from maintaining this equitable action, by reason of the conduct and gross laches of her grantor. “ The court lends its aid,” said Dixon, C. J., upon a careful consideration of the authorities, “ only to the vigilant, active, and faithful. This tardy application must be regarded as made in bad faith. After his gross and unparalleled negligence, the plaintiff can have no standing in court for the purpose of asking the relief here sought. Unreasonable delay and mere lapse of time, independently of any statute of limitations, constitute a defense in a court of equity.” Sheldon v. Rockwell, 9 Wis. 181. Here there is much more than mere delay or gross laches, and in such cases, and independently of the statutes of limitation, a court of equity will, on its own motion, refuse relief, even without such laches having been pleaded. Coon v. Seymour, 71 Wis. 345, 346, and cases there cited; Landsdale v. Smith, 106 U. S. 391; Speidel v. Henrici, 120 U. S. 387; Mackall v. Casilear, 137 U. S. 556; Saunderson v. Ballance, 67 Am. Dec. 218. By the Court.— The judgment of the circuit court is affirmed.