Naddo v. Bardon

• Decision Date: 05 July 1892
• Docket Number: 92.
• Citation: 51 F. 493
• Parties: NADDO v. BARDON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 493

NADDO v. BARDON et al.

No. 92.

United States Court of Appeals, Eighth Circuit.

July 5, 1892

Statement by BREWER, Circuit Justice:

This case comes on appeal from the circuit court of the district of Minnesota. In that court a demurrer to the bill was sustained, and a decree entered dismissing the bill.

The facts as they appear from the bill, are, in a general way, as follows: Plaintiff and appellant on January 1, 1863, received from the United States a patent for the land in controversy situated in St. Louis county, Minn., to wit: The S.W. 1/4 of the N.E. 1/4 of section 5, township 49, range 14. On June 26 1863, plaintiff, intending to remove, and in fact removing, to the province of Quebec, Can., executed a conveyance to his nephew, Pierre Etu. Though in form a warranty deed, it was intended by the parties only as a power of attorney to enable said Etu to manage and control the property in the absence of plaintiff. On July 7, 1864, having returned to the county of St. Louis, and Pierre Etu having removed to Canada, the latter conveyed the land to plaintiff by a deed executed in Canada, in the French language, duly executed according to the laws of Canada, but not witnessed or acknowledged according to the laws of this state. In September, 1870, plaintiff removed to Marquette county, Mich., where he resided 12 years, and then removed to Canada, living there till the commencement of this suit. During all these years he never revisited the county of St. Louis. On the 24th of September, 1870, he executed a power of attorney to one Richard G. Coburn, giving him power to sell and convey the lands, with right of substitution. Thereafter, and in 1872, a suit was brought against plaintiff by J. D. Ensign in the district court of said county of St. Louis and a writ of attachment issued. In such suit a judgment was rendered, and under the judgment a levy and sale was made of the tract in controversy to John C. Hunter, of Duluth, for the sum of $400. A certificate of sale was issued by the sheriff on the 10th day of March, 1873. The title conveyed by this sale passed to James Bardon by certain conveyances of date July 15, 1875, and June 1, 1876. On March 7, 1874, by proper written instrument, James Bardon was substituted by Richard G. Coburn as agent for the plaintiff under the authority given in the power of attorney, and on May 13, 1874, a quitclaim deed was executed by said Bardon under such power of attorney and substitution by which the land was conveyed to John Q. Hubbard, and on the next day said Hubbard, under previous arrangement, reconveyed the land to said James Bardon individually, the consideration expressed in each of these deeds being the sum of one dollar. All the instruments up to and including the deed to Hubbard were duly and promptly recorded in the office of the register of deeds of the county; but the deed of reconveyance was not placed on record for over a year, and not till June 4, 1875. On May 14, 1875, Bardon obtained a quitclaim deed to himself from Pierre Etu, on the representation that there was a defect in the latter's title of plaintiff. On June 4, 1875, Bardon bought the land at a tax sale for the back taxes of 1872, and took the deed to himself. In 1878 the land was sold at another tax sale for the taxes of 1874, and bid in in the name of Mary Bardon, the sister of said James Bardon, and by her conveyed to him. These deeds were also promptly recorded. On February 4, 1880, James Bardon conveyed the property to Henry W. Sage for a consideration stated in the deed of $2,250. Some other transfers took place subsequently, by which all the titles transferred through these various transactions passed to Frederick W. Paine, who on June 19, 1886, platted the land as an addition to the city of Duluth, under the name and style of 'West Park Division of Duluth,' which plat was on August 30, 1886, duly recorded. Thereafter lots were sold in this addition by him to different persons. On May 11, 1891, this suit was commenced. Some 94 persons were made defendants,--James Bardon, the substituted attorney, and the others, lot and block holders in the West Park division. The bill sets out the various conveyances, over 120 in number, by which these parties claim to hold title. The circuit court sustained the demurrer, and dismissed the bill on the ground of laches.

F. O. Clark, H. S. Lord, and Alfred Russell, (Clark & Pearl, on the brief,) for appellant.

R. R. Briggs, Walter Ayers, and Alfred Jaques, (Jaques & Hudson, Charles H. Clague, Thomas Fairfax, Byrona A. Porter, James H. Porter, Henry Kirchman, and Arnold Peffer, on the brief,) for appellees.

Before BREWER, Circuit Justice, and CALDWELL and SANBORN, Circuit Judges.

BREWER Circuit Justice, (after stating the facts.)

No doctrine is so wholesome, when wisely administered, as that of laches. It prevents the resurrection of stale titles, and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant that he make known his claims. It gives to the actual and longer possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine received with favor, because its proper application works out justice and equity, and often bars the holder of a mere technical right, which he has abandoned for years, from enforcing it when its enforcement will work large injury to many.

The general facts we have stated instantly suggest that this is a proper case in which to apply and enforce that doctrine. Plaintiff, in 1870, left the property, and moved to a distant country. So far as appears from the bill, from the time of his removal to the bringing of this suit-- over 20 years-- he not only never saw the property, but also never did a single thing to protect his possession, or give notice of any rights in it. Seventeen years before the commencement of this suit the legal title passed from him, and so passed by recorded deed made by an agent under power of attorney, if not by the Ensign judgment and sale. Two tax titles, in 1875 and 1878, were added to those made by the sheriff's sale and the deed under the power of attorney, and 13 years elapsed after these titles were placed on record with no note of warning from him to any one that he still had or claimed any right to or interest in the property. The land is a tract of about 40 acres, so near to the city of Duluth as to become an addition to it. By the census of 1870, Duluth was a small place, having a population of 3,131; by that of 1890, a large and prosperous city of 33,115 inhabitants. This rapid increase in population, together with the development of railroad and other industries, of which the court may fairly take judicial notice, make it evident that this addition to the city must have wonderfully increased in value. The multitude of deeds which the plaintiff describes in his bill show that many persons have bought lots relying upon the recorded title, and his allegation is that many of these purchasers have made improvements on the lots so purchased by the erection of dwelling houses. In other words, he summons into court nearly 100 persons who have in good faith made homes on the lots in this addition, relying on the sufficiency of the titles they have purchased, and without a warning from him that he had any claims upon the property. Surely, unless there be some strong and clear excuse for his silence these many years, equity and good conscience forbid that he should now dispossess them of their homes, and take to himself the value which their labors, coupled with that of their fellow citizens, himself not among the number, have given to this property.

The excuses tendered are absence, ignorance, and poverty. We quote from the bill the allegations in respect thereto:

'And your orator alleges that for about ten or twelve years last past he has resided in Canada, but that the transfers of the property of your orator, as previously set forth, and as appear by the records of the register of deeds for the said county, have been made without the knowledge and consent of your orator. And your orator has not until quite recently learned of the extent to which such transfers have been made. And your orator further alleges that for about ten years he has known that the said James Bardon and others claimed that he had lost or forfeited his rights to the said land, and that the said Bardon refused to account to him for his transactions with regard to the same, but your orator has during all said time since learning of such wrongful and fraudulent dealings on the part of said James Bardon, been poor and unable to pay the expense of litigation necessary to enforce his rights in the courts, and has been unable to procure, until recently the assistance necessary to enforce his rights.'

It appears elsewhere, as heretofore stated, that he has never been back to St. Louis county since he removed therefrom in 1870; so that he has been absent from the county in which the land is situated for over 20 years, the last 10 years of which he has lived in a different county. But absence of itself is no excuse. Travel and communication are easy. If he could not or did not care to go to Duluth, he could easily have written and ascertained exactly what was being done with the property, and with equal ease have given notice of his claims. This is not a case where a party is ignorant of the property or his title, as if it had descended to him by inheritance through the death of an ancestor, of whose death he was unaware, for he had himself taken the title from the government, and had lived upon the property. There cannot be one law of laches for the resident and...