Gayle v. Pennington , 185 Ala. 53 ( 1914 )

MAYFIELD, J.

Appellee filed this bill against appellants, for discovery and an accounting. The defendants demurred to the original bill, and the demurrers were sustained, whereupon the complainant amended his bill. To the amended bill the demurrs were reinterposed, but were overruled. From this last decree this appeal is prosecuted.

The reporter will set out the material facts averred in the original bill and in the amended bill; that is to say, such material facts as will tend to elucidate the opinion. The chancellor wrote a valuable opinion upon sustaining the demurrer to the original bill, and ■ another, when he overruled the demurrer to the amended bill.

After a careful study of the record and of the able and extended briefs of the appellants and the appellees, we áre of the opinion that the chancellor was correct in his first decree and opinion, but wrong in his second. We do not think that the amendment cured the bill of its defects pointed out by the demurrer, and must hold that the chancellor erred in overruling the demurrer to the amended bill.

We are unable to find any equity in this bill in so far as it concerns Mrs. Gayle. Her only connection with the alleged contract or dealings between the complainant and W. A. Gayle, which extended over a period of 25 years, was that her husband, as her agent, bought for her ’one tract of land at a foreclosure sale, and that she subsequently sold it at a profit. While the bill does attempt to hold her as a trustee in invitum, no facts are alleged which show such a relation. The bill does not show, or attempt to show, that the complainant had any interest in, or claim or demand against, the particular funds paid to, or received by, W. A. Gayle or Mrs. Gayle. If the bill sought to fix a trust upon the particular land or funds which were in the hands or under the control of Mrs. Gayle, she would be a proper party; but such is not the object of the bill. It seeks an accounting between complainant and W. A. Gayle, extending over a period of more than 20 years, and the only connection Mrs. Gayle is shown to have had with the matter is that she bought one piece of land at a mortgage sale and 10 or 15 years thereafter sold it for a profit.

We do not mean to intimate that any liability whatever is shown against Mrs. Gayle, bnt if any is, it is one the remedy for which is complete and adequate in a court of law, provided it is not barred by the statute of limitations of six and ten years; and, if barred by the statute, no reason is shown, or attempted to be shown, why a court of equity should grant relief against Mrs. Gayle. The bill shows that the foreclosure sale of the mortgage on the Neil-Smith place, at which sale Mrs. Gayle became the purchaser, occurred in 1896, 16 years before the bill was filed, and during all this time, and up to the filing of the bill, no complaint was ever made to or against Mrs. Gayle as to her purchase of this property of her liability to the complainant. The bill does not show, or attempt to show, that complainant ever, at any time before the bill was filed, claimed to have any right against Mrs. Gayle as to her purchase of this tract of land, or as to any other amount, claim, or demand. So, if complainant ever had any right of action against Mrs. Gayle as to this purchase, it was barred long before the bill was filed.

We do not think the bill is sufficient in its averments to excuse the complainant for his long delay in bringing this suit. The rights which the complainant here seeks to enforce grew out of, and depend upon, an oral contract made in 1887, a quarter of a century before' the bill was filed — a mere oral agreement made between five persons, complainant, Troy, Tompkins, London, and the defendant W. A. Gayle. It is true the bill alleges that, by a parol agreement, three of the five dropped out of the agreement, and W. A. Gayle took the place and interests of the three dropping out, and that [hereby complainant and defendant became tenants in common as to the profits realized from the purchase and sale of the lands. The effect of this alleged agreement was that the lands were to be purchased and sold, and plaintiff was to have one-fifth of the net profits, but was not to share in the losses or expenses, and was to furnish no capital except his labor, judgment, and influence in the purchase.

No lands are alleged to have been purchased under the agreement during the last 20 years. Title to some or all of the lands purchased was taken in the name of complainant; but in 1892, 20 years before the bill was filed, complainant conveyed the title to W. A. Gayle, the respondent, under the alleged agreement that when Gayle sold the lands he should pay to complainant one-fifth of the net profits.

The Neil-Smith place was sold under a mortgage in 1896, and purchased by Mrs. Gayle. While it is alleged that this foreclosure sale was conceived and procured by W. A. Gayle for the purpose of cutting complainant out of his profits, no complaint was ever made by the plaintiff until the filing of this bill, or shortly before, which was 16 years after the foreclosure sale. . The bill does not allege that any complaint was ever made to Mrs. Gayle about her purchase, or that it was ever claimed or supposed that she was liable, or would ever become liable to the complainant for profits on account of this purchase. The filing of this bill, 16 years after the purchase, was, so far as the bill shows, the first information Mrs. Gayle had that complainant would attempt to hold her liable on account of her purchase.

The remainder of all the lands purchased under the joint adventure, the bill alleges, was disposed of and conveyed to one Lancaster, in 1901, 11 years before the bill Avas filed, and out of the defendant W. A-Gayle 11 years before the bill was filed; and not a line or a word of writing, in all these transactions as to all this land, is alleged or shown which tends to show that any one is' liable to the complainant for one cent. The entire right and claim of the complainant is based upon a parol agreement made more than 25 years before the bill was filed. It is true the bill attempts to avoid the statute of limitations by alleging' that Mrs. Gayle and her husband, W. A. Gayle, sold the Neil-Smith place for a large profit only a few years before the bill was filed; but the acts which would allow the plaintiff to share in these profits occurred 16 years before the bill was. filed, and no complaint was ever theretofore made as to them.

The bill also attempts to avoid the statute of limitations by showing that, when the remainder of the lands was sold and conveyed to Lancaster, a plantation in Marengo county was taken in part payment, and that this plantation was not sold until a few years before the bill was filed.

Under the original oral agreement, giving it the construction most favorable to the complainant, it was the sale and conveyance to Lancaster which fixed the time of settlement and the amount of the profits in which the complainant had a right to share. The Marengo plantation took the place of money, and it was upon • its taking over that complainant had the right to share in the profits. The plantation conld have been valued, and the profits thereon, if any, then divided. The complainant shows no right to wait indefinitely for the sale, if it should ever occur, of this plantation. It was not purchased under the oral agreement as to profits; it was acquired in part payment of parts of the lands purchased. When the last of the lands purchased under the oral agreement of 1889 was sold and conveyed to Lancaster, this certainly fixed the time at which complainant was entitled to an accounting and settlement.

This case affords a strong illustration of the Avisdoxn of the statute of frauds, and of limitations of actions, and of the equitable doctrine of laches. The amended bill, like the original, shows on its face that the complainant has slept too long upon his rights, and shoAvs no sufficient excuse or justification for his Availing so long. The doctrine of laches, Avithout regard to the statute of frauds or that of limitations, avíII prevent the relief prayed, unless the complainant can -shoAV some sufficient justification or excuse for this long delay.

Laches is a defense Avhich may be raised by demurrer Avhen the bill shoivs long delay in asserting the rights claimed.

In Fowler v. Alabama Iron & Steel Co., 164 Ala. 414, 419, 420, 51 South. 395, the rule xvas stated by Justice Sayre, xvith citation of authorities. It is there said:“It is the settled rule of practice in this state that a demurrer will lie for laches, as Avell as for statutory limitation appearing on the face of the bill. — Greenlees v. Greenlees, 62 Ala. 330; Scruggs v. Decatur Mineral Co., 86 Ala. 173, 5 South. 440. It is familiar learning that, in the application of the doctrine of laches, courts of equity act in accordance Avith the analogy furnished by the statute of limitations, so that if the corresponding legal right, asserted under similar conditions, would be barred, the equitable action is held to have been lost by laches, by the neglect to assex*t it within a reasonable time. This rule is subject to modifications arising out of the relations of the parties, and which other recognized principles of equity jurisprudence require to be considered. — Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 South. 100. Such qualifying circumstances xxxay be found in the complainant’s ignorance of his rights, or his infancy, or mental unsoundness, or that he was

in possession, or the pendency of another suit to enforce the same right, the existence of confidential relations, estoppel of the defendant, and in other circumstances as to be found noted in the reports of the adjudicated cases. In a case where the charge of laches rests upon delay only, and that delay appears on the face of the bill to have been short of the period of limitation, the reason of the rule of analogy obviously would require that -special circumstances operating to destroy the right asserted should be brought forward by way of defense. Where, however, the bill shows a lapse in excess of the period of limitation, it .would seem that special matters- obviating the rule of analogy should be brought forward in the bill. And this is the rule stated by the authorities. — Henry County v. Winnebago Drain Co., 52 Ill. 299; Jarvis v. Martin, 45 W. Va. 347, 31 S. E. 957; Fletcher, Eq. Pl. & Pr. § 92.”

The Supreme Court of the United States, quoted by our court in Fowler’s Case, supra, has said: “As lapse of time necessarily obscures the truth and destroys the evidence of past transactions, courts of chancery will exercise great caution in sustaining bills which seek to disturb them. They will hold the complainant to stringent rules of pleading and evidence, and require him to make out a clear case. * * * And especially must there be distinct averments as to- the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, by the exercise of ordinary diligence, the discovery might not have been before made.” —Stearns v. Page, 7 How. 819, 829 (12 L. Ed. 928). “This is necessary to enable the defendant to meet the fraud, and the alleged time of its discovery.” — Moore v. Greene, 19 H.ow. 69, 72 (15 L. Ed. 533).

It was also said in Fowler’s Case, supra, that: “It may he true, as Lord Erskine has asserted, that £no length of time can prevent the unkenneling of a fraud.’ But other principles need observance. The salutary rule of pleading which we have considered and s luted requires that, if the delay in asserting a right against adverse claim.be great, a sufficient excuse be alleged.”

The equities of this bill, if equities it possess, must of necessity depend upon an oral contract or agreement, made between 5 persons, and more than 25 years ago, as to the purchase and sale of lands. What those terms of agreement were must determine the rights of complainant. Three of the parties to the contract are not before the court. The bill, at best, states only complainant’s conclusions from, and interpretation of, that contract or agreement. The bill nowhere avers that Troy, Tompkins, or London withdrew from the contract or agreement or' abandoned it. It merely avers that Gayle told complainant that the other three had withdrawn. Each of these parties may have interpreted the agreement differently. Memory of the conditions of a contract entered into 25 years ago of necessity is uncertain. To attempt to establish and enforce a trust growing out of such an agreement requires that the main facts and the asserted terms of the contract be certainly and clearly alleged.

The following propositions of law have been repeatedly stated by this court, and they are applicable to the case in hand: Where a bill is filed to enforce a constructive trust which arose out of transactions occurring more than 20 years previous to the filing of the bill, it is subject to demurrer for laches. — Lady Ensley C. I. & R. R. Co. v. Gordon, 155 Ala. 528, 46 South. 983.

If the party defrauded can disaffirm a contract by which he is defrauded, he must do so at the earliest practicable moment after the discovery of the fraud; this' is the time to make the allegation, and it must be •clone promptly and unreservedly; he may affirm or dis-affirm the contract, but he cannot do both; and he who would disaffirm a fraudulent contract must return ■whatever he has received from it. — Harrison v. Ala. Mid. Ry. Co., 144 Ala. 246, 40 South. 394, 6 Ann. Cas. 804.

Laches is not like limitations, a mere matter of time, but principally a question of inequity of permitting a claim to be enforced, and, when this inequity exists, a •court will refuse relief, although the time which has elapsed since the alleged injury is less than that which is made a bar by the statute of limitations. — Cole v. Birmingham Ry. Co., 143 Ala. 427, 39 South. 403; Alsop v. Riker, 155 U. S. 448, 15 Sup. Ct. 162, 39 L. Ed. 218.

Laches alone is sufficient to bar equitable -relief, especially where it has been so long continued as to render relief sought doubtful, uncertain, unfair, or unjust. —Cole v. Birmingham Union Ry. Co., 143 Ala. 427, 39 South. 403.

Equity will remain inactive where a party seeking 'relief therein is guilty of unreasonable laches, and this irrespective of the statute of limitations. Nothing can call forth equitable interference but conscience, good faith, and reasonable diligence. If these are wanting, the court is passive and does nothing. Laches, staleness, and neglect are discountenanced in equity, and especially in matter of accounts, where they are barred by the statute of limitations. Courts of equity refuse to interfere after a great lapse of time, and refuse because of considerations of public policy and from the difficulty of doing entire and exact justice when the original transactions have become obscure by the lapse of time and evidence may be lost. — Salmon v. Wynn, 153 Ala. 538, 45 South. 133, 15 Ann. Cas. 478.

If parties cannot come into equity without submitting to do equity, a fortiori they cannot come for the interference of this court in their own behalf, when their conduct before coming has been such as to prevent equity being done. — Salmon v. Wynn, supra.

The amended bill is also defective as one for discovery; no sufficient reason is shown why complainant could not ascertain the purchase price at which W. A. Gayle and Mrs. Gayle sold the lands in question. The mere fact that the deeds did not recite the price consideration does not authorize a bill for discovery. No attempt to obtain the information from the parties to the deeds is shown to have been made. — Va. Co. v. Hale, 93 Ala. 542, 9 South. 256; Shackelford v. Bankhead, 72 Ala. 478.

The bill is also defective as a bill for an accounting. In the case of Virginia, etc., Co. v. Hale, supra, 93 Ala. 543, 544, 9 South. 257, the rule as to discovery is thus stated: “As a general proposition, courts of equity do not entertain suits, the sole object of 'which is to recover damages for the breach of a contract; the remedy at law being adequate and complete. It is well settled that Avhen there is no fiduciary relation between the parties devolving the duty to render an account, and the accounts are not mutual, equity has not original and independent jurisdiction in the matter of accounts, unless there is so great complexity and intricacy that a jury cannot examine and state it Avith the necessary accuracy. — State v. Bradshaw, 60 Ala. 239; Hudson v. Vaughan, 57 Ala. 609. The ascertainment of the profits which Avould have been realized by complainants involves the quantity of coal mined and controlled by de fendant at the different mines, the market prices at each, and the cost and expense of transportation and sale in the different markets; but, these data being ascertained, the profits become a mere matter of addition and subtraction, the only difficulty consisting in the number of items. In Dickinson v. Lewis, 34 Ala. 638, the account involved the manufacture and furnishing of large quantities of articles of clothing during a series of years, from three different places, at a profit of a designated per cent, on the original cost. It is said: ‘The account was for clothes furnished to the complainant during a series of years, and differs from the ordinary accounts of merchants in this: That the charging was controlled by a contract made at the inception of the account. There was no mutuality of accounts. On the complainant’s side there was only a claim of credits for payments made. * * * There was nothing more, therefore, than an account on one side, with credits for payments made. Of such an account chancery has not original and independent jurisdiction.’ And while it was said that equity will entertain jurisdiction in some cases, where there is no mutuality, it was held that the account did not present that strong case of entanglement or complication which is necessary to maintain the equitable jurisdiction. The averments in the present bill, though showing difficulty in establishing the necessary data from which to state the account, do not show any greater complexity.”

It follows that the trial court erred in overruling the demurrer to the amended bill.

Reversed and remanded.

Anderson, C. J., and Sayre and de G-raffenried, JJ., concur.