Wilder's Ex'x v. Wilder

• Decision Date: 03 March 1909
• Citation: 72 A. 203,82 Vt. 123
• Parties: WILDER'S EX'X v. WILDER et al.
• Court: Vermont Supreme Court

72 A. 203

82 Vt. 123

WILDER'S EX'X

v. WILDER et al.

Supreme Court of Vermont. Washington.

March 3, 1909.

Appeal in Chancery, Washington County; George M. Powers, Chancellor.

Suit by George W. Wilder's executrix against George H. Wilder and others. From a decree for oratrix, defendants appeal. Modified, affirmed, and remanded.

The master's report shows that the oratrix was the second wife of George W. Wilder, deceased, was married to him May 8, 1884, and is the executrix of his will. His first wife was Maria A. Wilder, who died February 8, 1878. The defendant George H. Wilder is the son of George W. Wilder by his first wife, and is his sole heir. The other defendant is the trustee under said will of one-half the residuary estate.

On March 24, 1864, one William B. Hubbard conveyed to his daughter, the said Maria A. Wilder, the premises in question in this case. No money passed in the transaction, but on the same day Maria A. Wilder and her husband, George W. Wilder, mortgaged the premises to Hubbard to secure the payment of a note of $2,000, signed by them and payable on demand to Hubbard, or bearer. The master finds that George W. signed this note as surety. Maria A. and George W. immediately went into possession of said premises and occupied them as their home until the death of Maria A. Since the marriage of the oratrix and George W. Wilder, they occupied said premises as their home till his death, April 16, 1901. The mortgage debt had not been paid when Maria A. Wilder died, and thereafter on March 20, 1879, George W. Wilder was required by the executor of William B. Hubbard's estate to indorse on the note an agreement signed by him waiving the statute of limitations and promising to pay the note. Subsequently, and before his marriage to the oratrix, George W. Wilder paid the mortgage debt, with his own funds, and the mortgage was then discharged. Thereafter George W. Wilder believed that, because of that payment, be became the absolute owner of the real estate in question, and no one ever made any claim to the contrary till this controversy arose. For more than 20 years prior to his death, which accrued April 16. 1901, said real estate was set in the grand list to George W. Wilder, and during all that time he paid the taxes thereon, and during all the time from said conveyance thereof to Maria A. Wilder till his death he occupied the premises as his home. Since the death of George W., the defendant George H. Wilder has neither paid nor offered to pay any of the taxes, insurance, water rents, or other charges on the real estate, but the same have been paid by the executrix out of the estate of the said George W., and, without objection from any one, said real estate has been set in the list to said estate. On March 11, 1891, George W. Wilder made his will, which, after making a few bequests not material here, disposed of the residue as follows: "To my wife, Caroline F. H. Wilder, one half of all the residue and remainder of my estate, including the homestead and place where I now live as a part of her share." The "homestead" refers to the premises in question. The other half of the residue was devised to a trustee to be appointed by the probate court for the benefit of defendant George H. Wilder, and the other defendant is that trustee. The oratrix always believed, till about February, 1902, when she learned the contrary, that the legal title to the premises in question was in George W. Wilder, and after his death belonged to his estate. About February, 1902, she requested George H. Wilder to convey to her, as such executrix, the premises in question, which he refused to do. The bill prays for a decree either ordering defendant George H. Wilder to deed said premises to the oratrix, or directing that she be subrogated to the rights of the mortgagee under the mortgage, and for general relief.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, POWERS, and MILES, JJ.

T. J. Deavitt and Edward H. Deavitt, for appellants. Plumley & Plumley and Hogan & Hogan, for appellee.

POWERS, J. When this case was here on the demurrer (Wilder's Ex'x v. Wilder et al., 75 Vt. 178, 53 Atl. 1072), it was held that on the case made by the bill the court of chancery had jurisdiction, and that the oratrix was entitled to subrogation to the Hubbard mortgage to the extent that the testator was bound to pay to protect his life estate in the mortgaged premises. The cause was remanded, the defendants filed their answer, and the oratrix her exceptions thereto. All except the fourth were sustained by the chancellor, and of these rulings only that sustaining the fifth exception is here complained of. The chancellor held that the fourth exception was not well taken, and reserved the benefit thereof till the hearing. The answer was amended according to the rulings of the chancellor, a master was appointed, a hearing had, and a report filed, to which the defendants filed exceptions. Thereupon, without a hearing in the court of chancery, a pro forma decree passed sustaining said fourth exception and denying the defendants the benefit of the statute of limitations under paragraph 28 of the answer, overruling the exceptions to the report and accepting the same, and subrogating the oratrix to the Hubbard mortgage to the amount paid thereon by the testator January 27, 1880, with interest thereon from the date of the testator's death, April 16, 1901, to July 16, 1906, less the net rents and profits of the mortgaged premises between said last-named dates, amounting by computation to $5,443.40, and providing, among other things, for a foreclosure unless the defendants paid said sum, with interest and costs, on or before a time limited. From this decree the defendants appealed.

1. In paragraph 28 of the answer to which the oratrix's fourth exception applied, it is alleged that the cause of action did not accrue within 15 years and 30 days before the testator's death. The exception is that the bar of the statute of limitations, as therein set forth is not available to the defendants, as the essential facts appear on the face of the bill, and therefore that question was raised by the demurrer; and, the demurrer having been finally disposed of, the question cannot again be raised. The defendants do not deny that this result follows if the question was raised by the demurrer.

The terms "limitations" and "laches," when applied to the period of time within which an equitable right must be asserted, do not denote the same thing. The former signifies that fixed period specified in the statute, and this is so whether the statute is expressly applicable to suits in chancery, or is followed in such suits by analogy. The latter signifies unreasonable delay, independent of the statute or any fixed period of time. See Drake v. Wild, 65 Vt. 611, 27 Atl. 427. "Laches" also involves prejudice, actual or implied, resulting from the delay. It does not arise from delay alone, but from delay that works a disadvantage to another. Chase v. Chase, 20 R. I. 202, 37 Atl. 804; Farr v. Hauenstein, 69 N. J. Eq. 740, 61 Atl. 147; Hartford v. Mechanics' Sav. Bank, 79 Conn. 38, 63 Atl. 658; Parker v. Bethel Hotel Co., 96 Tenn. 252, 34 S. W. 209, 31 L. R. A. 706; O'Brien v. Wheelock, 184 U. S. 450, 22 Sup. Ct. 354, 46 L. Ed. 636; 5 Pom. Eq. § 21; Coleman v. Whitney, 62 Vt. 123, 20 Atl. 322, 9 L. R. A. 517; Royce v. Carpenter, 80 Vt. 37 66 Atl. 888. As a defense "laches" is not, on the one hand, limitations, nor, on the other, is...