Kline v. Vogel

• Decision Date: 20 December 1886
• Citation: 90 Mo. 239,2 S.W. 408
• Parties: KLINE and others v. VOGEL and others.
• Court: Missouri Supreme Court

2 S.W. 408

90 Mo. 239

KLINE and others v. VOGEL and others.

Supreme Court of Missouri.

December 20, 1886.

For the opinion of the court in this case, see 1 S. W. Rep. 733.

BLACK, J., (concurring.)

I concur in affirming the judgment in this case, but do not agree to all of the remarks made by my Brother SHERWOOD. The petition shows a case where it is necessary to take an account of rents, taxes, repairs, etc., and contains an offer to pay whatever is due to Vogel. In such cases a tender before suit is not required, nor need the plaintiff bring any money into court until the amount due is ascertained. But I do not agree that the maxim, "he who seeks equity must do equity," is but a question of performance of those conditions which the court by its decree may impose. This court thought otherwise in Deichmann v. Deichmann, 49 Mo. 108, which was a suit for specific performance, where it is said: "Ordinarily, such tender or offer to pay is essential, upon the principle that one who seeks equity must do equity," and further on in the opinion it is said: "The obligation to do equity does not require a mere useless formality, but a substantial willingness to perform the agreement, and that willingness should be evidenced by an offer to perform, unless the party is excused by the circumstances of the case." Again, this court has decided on several occasions that our present statute of limitations applies to equitable as well as legal causes of action. Henschall v. Schmidtz, 50 Mo. 455; Rogers v. Brown, 61 Mo. 188. Those rulings, in my judgment, are correct, and ought not to be disturbed. I do not, therefore, agree to the proposition that when the relief sought is based upon a right purely equitable, that the court acts outside of and independent of the statute of limitations; for I understand the proposition to state, and to be intended to include, the doctrine that the court in that class of actions may even lengthen the statutory period within which such an action may be brought. Where there is nothing more than the mere lapse of time, the statutory period is the guide. The right to relief in a court of conscience must often be asserted without delay or acquiescence, because of the nature of the relief asked, the character of the property involved and its situation, and other attending circumstances. These things are often interwoven with the right to relief, and out of the whole grows the doctrine of laches and equitable estoppel, which may defeat the...