Kelly v. Hurt

• Decision Date: 31 October 1881
• Parties: KELLY, Appellant, v. HURT.
• Court: Missouri Supreme Court

74 Mo. 561

KELLY, Appellant,

v.HURT.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Cooper Circuit Court.--HON. G. W. MILLER, Judge.

AFFIRMED.

This was a suit brought January 19th, 1874, to set aside a sheriff's deed made upon a foreclosure of a school fund mortgage. The lands consisted of two forty acre tracts and two eighty acre tracts. The petition asked to set aside the sale and deed because the lands, though susceptible of division, were sold in mass, when it was unnecessary to sell the whole to pay the debt, in consequence of which, it was alleged, they were sacrificed. The defenses were that the tracts were so situated as to constitute one farm and had long been so used, that there was no sacrifice, and that plaintiff was estopped by his conduct from attacking the sale.

The following facts appeared in evidence: In 1849 Kelly borrowed money from the school fund of Saline county, for which he executed a mortgage upon the land in question. In May, 1864, a foreclosure took place under order of the county court, defendant Hurt becoming the purchaser. The debt amounted to $1,085.42. The lands were sold in a body and brought $1,382.66. Kelly refusing to deliver possession, Hurt sued in ejectment, and in 1869 Kelly was ousted under a writ of possession in the hands of the sheriff. Hurt then took possession and immediately began clearing and fencing the place and erecting houses, barns, etc. In the course of five years he expended in this way some $5,000, besides paying the taxes, both back and current. Kelly knew that the sale was made in mass, but did not bring this forward as a defense in the ejectment suit. He also knew of the improvements and expenditures that were being made from time to time by Hurt. There was also evidence that shortly after the sale Hurt had offered to let Kelly have his land back at $100 less than he had given at the sale, but Kelly had declined, insisting that the government then (in 1864) in existence in the State of Missouri was illegal and the sale a nullity.

Chas. A. Winslow and Shackelford, Yerby & Vance for appellant.

Nothing short of an equitable estoppel will bar this action, less than ten years having elapsed before it was brought. Story Eq. Jur., (9 Ed.) § 1537; Bollinger v. Chouteau, 20 Mo. 89; Kelly v. Hurt. 61 Mo. 463; Bradshaw v. Yates, 67 Mo. 221; Spurlock v. Sproule, 72 Mo. 503; Bales v. Perry, 51 Mo. 449; Allore v. Jewell, 94 U. S. 506. The mere silence of Kelly worked no estoppel. The deed under which Hurt purchased was of record, and the proceedings which resulted in the sale were such as he was bound to notice. He knew the nature of the power, and that he had purchased the land under it in mass, just as well as Kelly did. The truth was equally known to both parties, and anything Kelly could have said would not have added to Hurt's stock of information on the subject. He made his improvements with full knowledge of the infirmity of his title, and amply warned by the stubborn resistence Kelly was making that it would be contested when opportunity offered. Besides, the evidence showed that up to the time of the trial Hurt had received in the way of rents about $1,500 more than he had expended for improvements and taxes. Thornburg v. Jones, 36 Mo. 521; Picot v. Page, 26 Mo. 415; Bales v. Perry, 51 Mo. 449; Spurlock v. Sproule, supra. The delay in this case was not unreasonable. Defendant's title was actively resisted until 1869, at which time he first got the possession. He did not commence his improvements until sometime in 1870, and this suit was commenced in January, 1874, a delay of less than four years.

Philips & Jackson for respondent.

Whatever may have been Kelly's rights in this matter they were forfeited by his own misconduct, delay and laches. In cases of concurrent jurisdiction, courts of equity consider themselves bound by statutes of limitation, which govern courts of law. But in cases cognizable at equity alone, while the courts act upon the analogy of like limitations, yet in cases of estoppel, lapse of time and the staleness of the claim, they act upon their own inherent doctrine of discouraging the disturbance of society. They will refuse to interfere where there has been gross laches, or acquiescence in the assertion of an adverse right, and often refuse to entertain a bill where a much less period has elapsed than that prescribed by statute for the government of courts of law. Badger v. Badger, 2 Wall. 87, 94; Twin-Lick Oil Co. v. Marbury, 91 U. S. 591; Harwood v. R. R. Co., 17 Wall. 78, 81; Moreman v. Talbott, 55 Mo. 392; Davis v. Fox, 59 Mo. 125; Kellogg v. Carrico, 47 Mo. 162; State v. West, 68 Mo. 229; Landrum v. Union Bank, 63 Mo. 48; State, Spear v. Perth Amboy, 38 N. J. L. 428. The court, sua sponte, will take notice of the delay, even when not pleaded. Sullivan v. R. R. Co., 94 U. S. 807; Badger v. Badger, 2 Wall. 94. And the complainant must satisfactorily explain his delay. Godden v. Kimmell, 99 U. S. 211. Kelly should have set up the alleged irregularity in the sale as a defense to Hurt's ejectment. When Kelly saw Hurt making vast outlays of money on this land, paying taxes, back and current, covering a period of fifteen years, and treating this land as his, it was his duty, at the inception of these outlays, to have asserted his claim. Follansbe v. Kilbreth, 17 Ill. 522; Collins v. Rogers, 63 Mo. 515.

SHERWOOD, C. J.

This case will be considered from three points of view: The laches of Kelly in bringing this suit; the equitable estoppel which, in consequence of his conduct, has arisen against him, and his failure in the ejectment suit to urge those matters, as matters of defense, which are now relied on as grounds of equitable and affirmative relief.

I.

And first, as to the laches of Kelly. The case of Hurt v. Kelly, 43 Mo. 238, was decided by this court in January, 1869. Kelly, in the following March, surrendered possession of the premises to Hurt. The present proceeding was not begun until January, 1874, nearly ten years after the sale, and over five years after the surrender of possession, and about four years after defendant, with the knowledge of Kelly, had taken possession of the premises thus surrendered. This conduct on the part of Kelly, and other acts detailed in this record, are sufficient to preclude him from successfully appealing to a court of equity for relief. Nor does his petition for such relief set forth any grounds excusing his delay.

Courts of equity when enforcing legal or analogous rights, as in administering remedial justice they are sometimes called upon incidentally to do, will generally adopt that limit of time which is prescribed by the statute of limitations. Adams Eq., 227. But when the relief sought is based upon a right purely equitable, where it is cognizable alone in a court of conscience, then that court acts solely upon its own inherent rules altogether outside of, and independent of the statute of limitations. As was said in Landrum v. Union Bank, 63 Mo. 56: “Laches is an equitable defense, and there is no artificial, fixed or determinate rule on this subject, but each case, as it arises, must be decided according to its own particular circumstances.” In Badger v. Badger, 2 Wall. 94, when speaking of the subject of laches, the court says: “Courts of equity acting upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the operation of adverse rights.” In Sullivan v. Railroad Co., 94 U. S. 807, Mr. Justice Swayne says: “To let in the defense that the claim is stale, and that the bill cannot, therefore, be supported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainant, the court will, upon that ground, be passive, and refuse relief. Every case is governed chiefly by its own circumstances; sometimes the analogy of the statute of limitations is applied; sometimes a longer period than that prescribed by the statute is required; in some cases a shorter time is sufficient; and sometimes the rule is applied where there is no statutable bar. It is competent for the court to apply the inherent principles of its own system of jurisprudence, and decide accordingly.” Mr. Justice Miller, when speaking for the court in Twin-Lick Oil Co. v. Marbury, 91 U. S. 591, with regard to the time when a party should exercise his option to have a sale set aside, says: “This has never been held to be any determined number of days or years as applied to every case, like the statute of limitations, but must be decided in each case upon all the elements of it which affect that question.” Other authorities cited for defendant establish the same position.

We need not discuss this branch of the subject at greater length, both because its discussion is but that of discussing an elementary, familiar and fundamental principle, and because, also, that subject has been so recently and exhaustively discussed in Bliss v. Prichard, 67 Mo. 181. Judge HENRY, in that case, after citing and quoting from a large number of authorities showing that laches will constitute a bar to equitable relief, says: “The distinction between law and equity has not been abolished in this State. The modification is as to the form of action, and the change effected is embraced in section 1, page 999, Wagner's Statutes, which provides that there “shall be in this State but one form of action,' etc. The principles of equity are as deeply imbedded in our law as before the adoption of the code, and he would be regarded as a rash legislator who would propose the entire elimination of equity from our system of jurisprudence. It is so interwoven with the common law, that nothing but confusion and disaster could result from a change so radical. It has not been...