Likens v. Likens

Equity: Action to establish title to land: Laches. 1. The defense of laches does not depend upon any statute of limitation, but is in the nature of an equitable estoppel barring the right to maintain an action by those who unduly slumber upon their rights.' 2. There is no fixed rule as to the lapse of time necessary to bar a suitor in equity. Great lapse of time, if reasonably excused and without damage to the defendant, has been ignored; while slight delay, accompanied by circumstances of negligence, apparent acquiescence, or change of defendant’s position, has been held sufficient. 3. After foreclosure of a mortgage given by the widow and heirs of an intestate, two of the heirs (defendants herein) bought the land for themselves from the purchaser at the foreclosure sale, and thereafter held it as their own, to the knowledge of all persons interested. After such purchase defendants mortgaged the land and appropriated to their own use the rents, issues, and profits thereof. A third heir, who knew of the purchase anct that defendants claimed title adverse to him, acquiesced therein, and during the period of more than nine years until his death made no claim against them. After his death, and more than ten years after the purchase by defendants, the widow and heirs of said third heir brought this action to establish title to a share in the land and for an accounting, etc. During said ten years the land had increased in value four or five fold. No sufficient excuse for the delay was shown. Meld, that, the action was barred by laches.

Appeal from a judgment of the circuit court for Grant county: GeoRGE Clemewtson, Circuit Judge. This action was brought to establish the title of the plaintiffs to certain lands in Grant county, Wisconsin, and for an accounting and partition. The answer, among other defenses, sets up laches and alleges ownership and possession from the 18th day of April, 1896, and that such possession had been continuous, open, notorious, and exclusive of all rights, claims, or title of any person, and hostile to the claim of the plaintiffs and W. W. Likens, the person under whom plaintiffs claim. The findings made and filed by the court below give a history of the material facts. The court found substantially that on November 17, 1889, James Likens died intestate, leaving him surviving Artella Likens, his widow, and the following children: W. W. Likens, James Likens, Benjamin F. Likens, Sarah Jane Arnett, Josephine McGinnis, Emma I. Dilger, and Tilla A. Likens; that his son Benjamin F. Likens was appointed administrator in March, 1900, by the county court of Grant county, Wisconsin; that said administrator never filed a report and that the estate has never been settled; that said James Likens died seised of 232 acres of land in Grant county, upon which was an outstanding mortgage to James Miles of $250, dated Eebruary 28, 1880; that in 1891 a large barn was built on said premises at a cost of over $1,600; that said bam was built largely under direction and request of W. W. Likens, who promised to furnish the money to pay for the same, and, said barn not being paid for, liens were filed thereon in 1902 on a portion of said land in favor of William H. Schmitz for $249 and Kendrick & Wallenhorst for $709.65; that an action was brought to foreclose the lien of Kendrick & Wallen-horst in 1892, and in September of said year the widow and then surviving heirs of James Likens executed a mortgage to T. L. Oleary for the sum of $1,100 to pay said liens; that said mortgage was duly recorded, and covered all the land of which deceased died seised and the following additional land of Benjamin F. Likens: the S. E. \ of N. W. ^ of section IV, and the S. W. ¿ of the S. W. J of section IV, all in township 3, range 2 W.; that said mortgage was signed by Artella Likens (widow), Benjamin F. Likens, Barak Jane Arnett, W. W. Likens, Josephine McGinnis, Emma I. Dilger, and Tilla A. Likens; that James Likens, Jr., died in 1890, leaving him surviving a widow and three minor children, who did not join in said mortgage; that the proceeds of the mortgage to Oleary were used to pay the indebtedness on the barn built upon the lands of the deceased. The court further found that in 1894 said Cleary mortgage, having been duly assigned to O. H. Eighmy, was foreclosed, and judgment docketed thereon ETovember 14,1894, and thereafter the lands were sold by the sheriff in accordance with said foreclosure on March 6, 1896, to John F. Miles for $1,551, and a deed to said lands made by the sheriff to said Miles and duly recorded; that the land in question at a forced sale was not worth more than it was bid in for by said Miles; that the defendants Benjamin F. Likens and Tilla A. Likens did all they could preliminary to the foreclosure sale to induce others interested in said lands to come in and help them pay off the mortgage and save the land; that they failed in their endeavor, and all the parties interested knew that the land was to be sold and disposed of at a foreclosure sale; that John E. Miles bought the land for himself, but through his friendship for Benjamin F. Likens and Tilla A. Likens proposed to quitclaim it to them and take a mortgage back for the balance of the purchase money that they were unable to pay; that this transaction was in good faith, and Benjamin F. Likens and Tilla A. Likens on April 18, 1896, bought all the land described in said mortgage of John E. Miles for themselves, and have ever since April 18, 1896, held it as their own under said deed and to the knowledge of every one interested in the land prior to the foreclosure sale. The court further found that W. W. likens was a son of James Likens, deceased, and said W. W. Likens died in September, 1905, and that the plaintiffs are his widow and heirs, and that plaintiffs in this action, at the time of the death of W. W. Likens and ever since, have been nonresidents of the state of Wisconsin; that W. W. Likens, soon after said Miles deeded said lands to Benjamin and Tilla Likens, knew that they were the owners and claimed title thereto adversé to him, and never at any time during the nine remaining years of his life questioned their title as absolute owners of this land; that W. W. Likens was a lawyer, had practiced over thirty years, but did not reside with plaintiff, his widow, for more than twenty years before his death; that during the last four years of his life he was an invalid and was taken care of by Benjamin F. Likens and Tilla A. Likens, and that reasonable compensation for his board and attendance given him at that time would be $1,000; that none of the defendants in this action ever'appeared or answered except Benjamin F. Likens and Tilla A. Likens, and none of the other defendants has ever made any claim to an interest in these lands described in the complaint since March 6, 1896; that John F. Miles on April 18, 1896, made a quitclaim deed to Benjamin F. Likens and Tilla A. Likens of the lands described therein, and said deed was duly recorded; that said deed conveyed all the lands deeded to him in said sheriff’s deed except the S. E. of the N. W. of section 16, township 3, range 2 W.; that the said lands had been purchased by said Miles on, March 6, 1896; that the heirs of James Likens, Sr., had no title or interest in and to the lands of which he died seised (excepting the heirs of James Likens, Jr., deceased) from March 6, 1896, to April 18, 1896, when said lands were purchased from said Miles by Benjamin F. Likens and Tilla A. Likens; that the time for redemption under the Eighmy mortgage expired November 14, 1895; that the defendants Benjamin F. Likens and Tilla A. Likens fully informed the other heirs of James Likens, deceased, of all the facts as they occurred, and informed them that they were unable to redeem said lands from said foreclosure sale, and endeavored to secure the assistance of the heirs in raising money to do so; that thereupon all the other heirs of James Likens, deceased, abandoned all effort on. their part to redeem said lands or repurchase the same, and Benjamin F. Likens and Tilla A. Likens informed all the heirs that they were going to try and buy back the land in their own names and for their own benefit, and that all of the heirs acquiesced in this arrangement, and one of them, W. W. Likens, in a letter soon after the purchase, stated that he was glad to know they had bought the land in their own names; that at the time of the purchase from said Miles by Benjamin F. Likens and Tilla A. Likens the other heirs of James Likens, Sr., who signed the mortgage had no interest whatever in said lands and had lost the same by the foreclosure proceedings, and Benjamin F. Likens and Tilla A. Likens purchased said lands from Miles for their own sole use and benefit, as the heirs of James Likens, Sr., well knew; that during the last ten years the lands in controversy have greatly increased in value and are now worth four or five times what they were at the time of purchase by defendants; that if the plaintiffs, or their ancestor from whom they claim title, W. W. Likens, ever had any claim, there had been unreasonable delay on his part in claiming or establishing his claim to said lands. As conclusions of law the court found that the plaintiffs have established no cause of action and the complaint should be and is dismissed upon the merits, and the defendants Benjamin F. Likens and Tilla A. Likens recover their costs of the plaintiffs in this action. Judgment was so ordered and entered upon the findings of fact and conclusions of law, dismissing the complaint and for costs, from which judgment this appeal was taken.