Havenor v. Pipher

WiNslow, J. If the fact be, as found by the trial court, that John Pipher paid the entire purchase price of the real ■estate in question himself, it must necessarily follow that •the judgment below must be affirmed. Upon this point the testimony was necessarily quite meager on account of the death of both Wilson Pipher and his wife; but John Pipher testified directly that he paid the purchase price of the land, and there was very little, if any, competent testimony to the contrary, except as to one or two vague admissions said ■to' have been made by John Pipher in conversations many years since. When the facts and inherent probabilities are ■considered, they seem to confirm the conclusion of the court. John Pipher was a man of means. Neither Wilson Pipher nor his wife had any means when the purchase was made. Their only way of procuring money was by the prosecution of a small restaurant and saloon business and a small millinery business. That they could have made sufficient profit ■out of these enterprises to pay out $8,150 inside of four years, with ten per-cent, interest, is well-nigh incredible; and if they had paid it, or a greater part of it, why did they not at once insist on having the title transferred to them ? Certainly we cannot say that the finding of the court on this point is contrary to the clear preponderance of the evidence. Starting from this fact, the whole case of the plaintiff falls to the ground. The plaintiff claims under the right, if ■any, of Wilson Pipher. If Wilson Pipher had any right in his lifetime to have the title of the land put in his own name on the theory that the deed was in fact a mortgage, he would assuredly have been obliged to' pay the advances which John had made to purchase the land. No offer to do that has ever been made, nor is it made in the present case. The fact that John Pipher paid the entire purchase price •also disposes of any claim that the land was held by John for the use of or in trust for Wilson, regardless of the pro [116] visions of sec. 2017, Stats. 1898, which section would seem fatal to any claim that the title was held in trust, whatever-the fact be as to the payment of the consideration. No question as to the transfer of a homestead without the signature of the wife is in the case, because no such transfer has been attempted. Furthermore, the defense of laches in asserting any right, is insurmountable. For twenty-three years Wilson Pipher, under whom plaintiff claims, allowed the title to remain in his father, not only without questioning, but constantly recognizing, his father’s ownership by affirmative acts. The case is rare where, after such a delay, during which witnesses have died and testimony has become effaced from the memory of those remaining, a court of equity will entertain an action to set aside a legal title, when the parties have-been at all times sui juris and cognizant of all the facts. By the Court.— Judgment affirmed.