Mantle v. Speculator Mining Co. , 27 Mont. 473 ( 1903 )

MR. JUSTICE HOLLOWAY,

after stating the case, dei-livered the opinion of the court.

The only questions necessary for our consideration are: (1) Hoes the complaint state facts sufficient to entitle the plaintiff to an injunction, or, stated in other words, does it affirmatively appear upon the face of plaintiff’s complaint that his cause of action is barred by the statute of limitations? and (2) is plaintiff’s right to an injunction barred by his laches? In our consideration of the subject, we will treat the answer filed therein as an affidavit, and nothing more.

1. Hoes the complaint, on its face, show that the plaintiff’s cause of action is barred by the statute of limitations? We preface our consideration of this subject by saying that, in our judgment, the statute of limitations applies to suits in equity as well as to actions at law. In Lux v. Haggin, 69 Cal. 255, 10 Pac. 674, the court said: “It has been repeatedly decided in this state that Section 343 of the Code of Civil Procedure, An action for relief not hereinbefore provided for must be commenced within four years after the cause- of action shall have accrued,’ applies as well to suits in equity as to' actions at law.” It will be observed that Section 343 of the California Codo of Civil Procedure is, in substance, identical with Section 47 of the Compiled Statutes of 1887 and Section 518 of our Code of Civil Procedure.

For the purpose of this discussion only, we may assume that, by reason of the contract entered into between Mantle and Lar-gey in 1884, an express trust was created, and that Largey continued to hold Mantle’s interest as trustee until 1893. The complaint shows affirmatively that in 1893 Largey disavowed and repudiated the trust, and that Mantle had notice of such disavowal, and immediately commenced an action against Lar-gey to enforce the trust and to compel conveyance to Mm of Ms one-sixteenth interest in the “property. The authorities are uniform in holding that, as between the trustee-of an express trust and the cestui que trust, the statute of limitations commences to run from the date of the disavowal of the trust by the trustee, and knowledge of such disavowal by the cestui que trust. (27 Enc. Law (1st Ed.), 104; Ward v. Harvey, 111 Ind. 471, 12 N. E. 399; Jones v. McDermott, 114 Mass. 400; Davis v. Coburn, 128 Mass. 377; Otto v. Schlapkahl, 57 Iowa, 226, 10 N. W. 651.)

"Under the allegations of the complaint, then, the statute commenced to run against plaintiff’s cause of action in 1893; and, unless the running of the statute was interrupted or suspended, this cause of action, as disclosed by the complaint filed herein, was barred long prior to the date of the commencement of this action, whether Section 47 of the Compiled Statutes, or Section 518 of the Code of Civil Procedure, be applicable in this instance. i

On the part of the plaintiff it is contended that the pendency of the action of Mantle v. Largey operated to suspend the running of the statute, and that therefore this cause of action is not barred. The general rule is: “The pendency of the [other] suit operates to suspend the statute as tot all parties thereto so far as the subject-matter of the suit is concerned. But the suspension exists only as to the particular suit brought, and not as to the cause of action there involved. Except under the rule of (journeys accounts’ and in special cases, the institution of one suit can have no effect upon the operation of the statute as against any other suit, whether on the same or on another cause of action.” (19 Enc. Law (2d Ed.), 258 and cases cited.)

We are of the opinion that the pendency of the action of Mantle v. Largey did not operate to suspend the running of the statute as to this particular case.

2. Is plaintiff’s right to an injunction barred by Ms laches ? With reference to this subject the authorities seem to be quite well agreed upon this general rule: “Where a party seeks the intervention of a court of equity to protect Ms rights by injunc-t-ion, tbe application must be seasonably made, or the rights may be lost, at least so- far as equitable intervention is concerned. . It is a rule practically without exception that a court of equity will not grant relief by injunction -where the party seeking it, being cognizant of his rights, does not take those steps to assert them which are open to him, but lies by and suffers his adversary to incur expenses and enter into burdensome engagements which would render the granting of an injunction against the completion of his undertaking, or the use thereof when completed, a great injury to him.” (16 Am. & Eng. Enc. Law (2d Ed.), 356; Willard v. Wood, 164 U. S. 502, 17 Sup. Ct. 176, 41 L. Ed. 531; Johnston v. Standard Mining Co., 148 U. S. 360, 13 Sup. Ct. 585, 37 L. Ed. 480; Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685, 18 Sup. Ct. 223, 42 L. Ed. 626.) In Twin Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328, the court said: “Property worth thousands today is worth nothing tomorrow; and that which would today sell for a thousand dollars 'at its fair value may, by the natural changes of a week, or the energy and courage of desperate enterprise, in the same time be made to- yield that much every day. The injustice-, therefore, is obvious, of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit.” In 1885 the property in controversy was supposed to be worth $24,000, and in plaintiff’s complaint it is alleged that between June, 1901, and March, 1902 — -a period of nine months — ore of the value of $1,500,000 has been taken out of this property; and the language used by the court in Johnston v. Standard Mining Co., above, is certainly pertinent here: “The duty of inquiry was all the more peremptory in this- case from the fact that the property of itself was of uncertain character, and was liable, as is most mining property, to suddenly develop an enormous increase in value. This is actually what took place in this case. A property which in October, 1880, plaintiff sold to Chat-field upon the basis of $4,800 for the whole mine, is charged, in a bill filed October 21, 1887, to be worth $1,000,000, exclusive of its accumulated profits. Under such circumstances, where property has been developed by the courage and energy and at tlie expense of the defendants, courts will look with disfavor upon the claims'of those who have lain idle while awaiting the results of this development, and will require not only clear proof of fraud, but prompt assertion of plaintiff’s rights.”

Rehearing denied March 30, 1903.

No explanation having been offered for plaintiff’s delay in applying for an injunction, we are of the opinion that he has slept on his rights, and ought not to be permitted now to come into a court of equity, and, by the aid of an injunction, close the property against this defendant while he litigates an uncertain claim to an interest therein. While some of the allegations contained in defendant’s answer tending to show plaintiff’s laches were denied on the hearing, in our judgment the denials ■were not sufficient to relieve the plaintiff from the charge that he has not pursued his right with that degree of diligence which shordd characterize an applicant for relief from a, court of equity.

In view of the fact that the suit of Mantle v. Largey is still pending undetermined in the district court, and that, so far as this court is informed to the contrary, all the relief sought here could be secured in that action by making this defendant a party thereto* the reason for the commencement of this suit is not apparent, and it is far from the intention of this court to encourage needless litigation. Upon the plaintiff’s own showing, this cause of action is barred by the statute of limitations. The unexplained delay of nearly nine years in seeking relief by way of injunction in this action ought to bar that relief.

The order appealed from is reversed, and the cause remanded.

Reversed and remanded.