Jarvis v. Martin's Administrator

Dent, Judge:

L. D. Jarvis filed a bill in chancery against Jesse V. Martin and others in the circuit court of Harrrison County, at April rules, 1894, seeking to enforce a vendor’s lien retained in a certain deed executed by Edwin Maxwell and Burton Despard, trustees, to Jesse V. Martin, bearing date *348 the 4th day of March, 1871. Before appearance therein, Jesse V. Martin died, and the suit was revived ag-ainst his administrator and his devisees, some of whom were infants. By the final order it appears that Hugh Martin, a party in his own right as administrator, and Ettie Martin, the only other adult devisee, demurred to the bill, and their demurrer was overruled. They also filed a joint answer, relying on the statute of limitations, laches, and presumption of payment by reason of the lapse of upward of twenty years’ time. The note given for the purchase money had long been barred, and twenty-three years had elapsed from the date of the deed until suit was brought. This all appears on the face of the bill, and there is no reason or excuse alleged why the suit was not sooner instituted. In the case of Thompson v. Iron Co., 41 W. Va., 574 , ( 23 S. E. 795 , Syl. point 5), this Court held the settled law of this State to be that “the defenses of the statute of limitations and laches and stale demand may be made by demurrer.” Such being the case, it devolves upon the plaintiff who seeks the enforcement of a stale demand to allege such facts as will entitle him to the aid of a court of equity; otherwise, relief will be denied him. His claim, having been rendered inequitable by lapse of time, will be regarded as no claim at all, in the absence of reasonable excuse for the nonassertion thereof. Jackson v. Hull, 21 W. Va. 601 .

For the foregoing reasons, the decree is reversed, and the demurrer of Hugh M. Martin and Ettie Martin is sustained, and the cause is remanded, with leave to the plaintiff to amend his bill if he desires to do so; otherwise to be dismissed.

Reversed.