Poulin v. Poulin

• Decision Date: 26 March 1938
• Docket Number: No. 1335.,1335.
• Citation: 197 A. 878
• Parties: POULIN et al. v. POULIN et al.
• Court: Rhode Island Supreme Court

197 A. 878

POULIN et al.

v. POULIN et al.

No. 1335.

Supreme Court of Rhode Island.

March 26, 1938.

Appeal from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Suit by Alphonse Poulin and others against Eulalie Poulin and others to cancel a mortgagee's deed and to compel a conveyance to complainants as trustees. Decree dismissing the complaint on ground of laches, and complainants appeal.

Affirmed and cause remanded for further proceedings.

Woolley & Blais, of Pawtucket, for complainants. Cooney & Cooney, of Providence, for respondents.

MOSS, Justice.

This suit in equity is before us on the appeal of the complainants from a decree of the superior court dismissing, on the ground of laches, their bill of complaint after a hearing on bill, answer, and replication. They are the son, daughter, and granddaughter, and, as such, the only surviving heirs, of Hermine B. Poulin, who at the time of her death, intestate, July 1, 1904, was the first wife of Philias Poulin and was the owner in fee of certain real estate, consisting of a parcel of land in Central Falls in this state, and two houses thereon. This real estate was then subject to a mortgage, which had been made by her and her husband to the Franklin Savings Bank, securing their promissory note for $3,200, and which, together with the note, was at her death held by the Slater Trust Company.

Apparently the complainants, unless their rights have been lost by laches, are now, as her successors in interest, the owners of all the title which Hermine B. Poulin had at her death in that real estate, except so far as such title has been terminated or altered by the following facts, which were substantially alleged in the bill of complaint and were admitted by the respondents to be true or were proved by the evidence:

Less than two years after the death of Hermine, Philias Poulin, who then held a life interest in this real estate by right of curtesy, allowed a default to occur in the performance of the conditions of the mortgage, in consequence of which the Slater Trust Company, in accordance with the power of sale, sold the real estate at auction to Philias Poulin for $2,970; and for that sum conveyed it to him by a mortgagee's deed, which was duly recorded on March 21, 1906. He continued to hold the legal title to the real estate, or the equity of redemption therein, until his death on August 9, 1934.

Evidently as a part of the purchase price at the foreclosure sale, the Slater Trust Company received from him a note for $2,700 and a mortgage on the real estate securing the payment of the note. This mortgage was discharged on August 27, 1907, and a new mortgage on the same real estate was made to the Woonsocket Institution for Savings under date of August 26, 1907, and was recorded the next day. It was discharged of record on February 26, 1921.

On December 29, 1910, Philias Poulin married, as his third wife, Eulalie Tougas, who is one of the respondents, the other two being children of this marriage. On April 7, 1923, Philias Poulin mortgaged the real estate to the Credit Union of Central Falls to secure the payment of his note for $3,500, of which the unpaid balance was $2,450 at the time of his death.

By his will, which was duly admitted to probate, he gave and devised the residue of his estate, including this real estate, as follows:

One-third to his widow, the respondent Eulalie Poulin, and the other two-thirds in equal shares to the first two of the complainants, who were his surviving children by his wife Hermine, and the other two respondents, who, as above stated, were children of his by his third wife.

The special relief prayed for in the bill of complaint is that the mortgagee's deed from the Slater Trust Company to Philias Poulin be declared null and void; that the above-mentioned devisees under his will be declared to be trustees of this real estate for the benefit of all the complainants equally and be ordered to convey it to them. There is also a prayer for general relief. The respondents in their answer set up no affirmative defense.

At the hearing in the superior court, besides the above facts alleged in the bill of complaint, the following facts were proved by uncontradicted evidence or agreed upon by the parties. On October 11, 1922, Philias Poulin received from the inspector of buildings of Central Falls a permit to erect a two-tenement house on a part of the land now in question; and under this permit he built such a house, which Eulalie Poulin testified was finished, in June, 1923, and cost around $3,000. It may be noted that this month was the second one after the date when he mortgaged all of this real estate to the Credit Union of Central Falls, to secure his note for $3,500, as above stated.

At the hearing in the superior court the respondents, in support of a defense of laches, introduced evidence to show that while the complainants were delaying the bringing of proceedings by them to establish a trust for their benefit in the property involved in this suit, the situation had greatly changed in such ways as to make it inequitable for them to enforce the rights which they now claim. This evidence was admitted against the objection of the complainants, which was based on the contention that evidence by the respondents in support of a defense of laches was not admissible, because they had not set up such a defense in their answer.

In support of this contention, the complainants have cited to us a number of Rhode Island cases in which the general rule has been stated and applied that in an equity suit, an affirmative defense cannot be shown by a respondent, unless the facts supporting it appear in the bill of iomplaint or are set up by way of plea or in an answer. But in none of those cases was the rule applied to laches and the complainants have cited to us no case in which it was so applied.

On the other hand, in Chase v. Chase, 19 R.I. 523, 36 A. 1131, this court itself suggested, for the first time in the case, that the question of laches was involved. When the case was reargued on that issue, this court in its opinion in Chase v. Chase, 20 R.I. 202, at page 206, 37 A. 804, 806, said that laches is not waived by not pleading it; and said: "It is a defense which may be taken at any time."

In Taylor v. Slater, 21 R.I. 104, 41 A. 1001, this court held that this defense might be taken on demurrer, when laches appeared in the bill. It stated also, 21 R.I. 104, on page 106, 41 A. 1001, 1002, that it may be taken by plea or answer and then added: "The defense may also be set up in argument," citing Chase v. Chase, 19 R.I. 523, 36 A. 1131, supra, and another case, in support of this statement.

We are of the opinion that in the instant case the respondents were entitled to introduce any relevant evidence in support of a defense of laches; and that the evidence which was introduced by the respondents on that issue was properly admitted and considered by the justice of the superior court.

After the close of the hearing before him, he filed a rescript, in which he found that Philias Poulin suffered the mortgagee's sale to be made, in March 17, 1906, for the purpose of getting the title to the property in question out of his first wife, Hermine, and her heirs and into his own name, and that he recognized the rights...