Likens v. Likens

KeRWIET, J. It is strenuously contended by appellants that the sale to Miles under the foreclosure suit and transfer of the land by him to Benjamin F. Lihens and Tilla A. Lihens (hereinafter called defendants) did not vest the absolute title in said defendants as against W. W. Likens, under the doctrine that a cotenant cannot purchase an outstanding title or incumbrance affecting the common estate for his own exclusive benefit and assert such right against other co-tenants. We do not regard it necessary to discuss this question, because we are convinced that the defense of laches is supported by the findings and evidence, and therefore the judgment must be affirmed on that ground regardless of other questions discussed by counsel. The court found upon sufficient evidence that on March 6, 1896, Miles bought the property in question at foreclosure sale and recorded his deed, and oh April 18, 1896, defendants bought from Miles and ever since have held the land as their own under the deed from Miles, to the knowledge of all parties interested; that soon after the sale to defendants W. W. Likens knew defendants were-the owners and claimed title adverse to him and never afterwards denied that they were the owners; that during the ten years immediately preceding the commencement of this action the lands greatly increased in value, and were at the time of commencement of this action worth four or five times what they were when purchased by defendants. It further appears from the record that in August, 1895, W. W. Likens wrote to defendant Tilla A. Lihens, saying that he was not expecting to realize anything from the property, and afterwards and on May 24, 1896, again wrote saying he was pleased that she and Benjamin had the property in their own names; that after the purchase from Miles the defendants mortgaged the land and took the rents, profits, and issues thei’eof and converted the same to their own use; that this action was commenced August 10, 1906. It therefore appears that for. more than nine years after the purchase [327] from Miles and np to the time of his death W. W. Likens took no steps to assert his claim against the defendants, if he had any, and the present action was not commenced for more than ten years after defendants purchased the land, and no sufficient excuse was shown to excuse the delay. We think it clear, therefore, that upon the findings and evidence the defense of laches was established. Rogers v. Van Nortwick, 87 Wis. 414, 58 N. W. 757; McCann v. Welch, 106 Wis. 142, 81 N. W. 996; Fleming v. Ellison, 124 Wis. 36, 102 N. W. 398. The defense of laches does not depend upon any statute of limitation, hut is in the nature of an equitable estoppel, and operates as a bar upon the right to maintain an action by those who unduly slumber upon their rights. There is no fixed rule as to the lapse of time necessary to bar a suitor in a court of equity. Each case must stand upon its own particular facts. Great lapse of time, if reasonably excused and without damage to the defendant, has been ignored; while slight delay, accompanied by circumstances of negligence, apparent acquiescence, or change of defendant’s position, has been held sufficient. McCann v. Welch, supra; Hammond v. Hopkins, 148 U. S. 224, 12 Sup. Ct. 418. And it has been held that unreasonable delay in bringing an action in equity will bar recovery where the other party has made improvements in the meantime or the property has greatly increased in value. Combs v. Scott, 76 Wis. 662, 45 N. W. 532; Johns v. Norris, 22 N. J. Eq. 102. In the case before us there was unreasonable delay in bringing the action and no sufficient excuse for such delay shown; also acquiescence in the title and claim of defendants, besides a four or five fold increase in the value of the property during the delay. Under such circumstances equity will not grant relief. In addition to the cases before cited we call attention to the following: Brittin v. Handy, 20 Ark. 381; Mandeville v. Solomon, 39 Cal. 125; Buchanan v. King’s Heirs, 22 Grat. [328] 414. In tbe cases last cited it was held that where a tenant in common buys in an outstanding title, if his cotenant desires to avail himself of the benefit of the purchase he must act promptly and make his election to claim the benefit of the purchase and contribute to the expense incurred in the purchase. It follows that the judgment dismissing the complaint was right and must be affirmed. By the Court. — The judgment of the court below is affirmed.