Somers v. Spaulding , 229 Iowa 432 ( 1940 )

I concur fully in the majority opinion of Justice Miller. I would also affirm the decree of the trial court upon the additional ground that since the plaintiff-appellant had knowledge of the deed in controversy from the time of its execution and recording in August 1932, and, since he could have procured judgment on his note shortly after its maturity and nonpayment on August 10, 1934, and could have brought his action to set aside the deed well within the five years after the discovery of the fraud, he was guilty of laches in not doing so and in waiting over four years thereafter before bringing the action. He was quiescent for over six years after he had knowledge of the alleged fraud, and could have brought this action over four years before he did. This is a suit in equity, and the facts do not justify a court of equity in excusing the delay. One who asserts that he has been defrauded should be reasonably prompt in bringing an action based thereon. While a court of equity may, and often does, follow statutes of limitation, it is not bound to, and it ought not, where the delay is without reasonable excuse. As stated by Justice Kenyon in Spiller v. St. Louis S.F.R. Co., 8 Cir., Mo., 14 F.2d 284, 288:

"Laches is an equitable doctrine, not controlled by or dependent upon statutes of limitation, although courts quite generally consider the time fixed by such statutes in actions at law of like character as having some bearing on the pertinency of the doctrine of laches * * *. The applicability of the doctrine of laches is dependent upon the circumstances of each particular case. Galliher v. Cadwell, 145 U.S. 368, 12 S. Ct. 873, 36 L. Ed. 738; Abraham v. Ordway, 158 U.S. 416, 15 S. Ct. 894, 39 L. Ed. 1036; Jackson v. Jackson, 175 F. 710, 99 C.C.A. 286; Buchler v. Black, 226 F. 703, 141 C.C.A. 459; Taylor v. Salt Creek Consol. Oil Co. (C.C.A.) 285 F. 532."

The majority opinion, in support of its ground of affirmance, refers to the cases of Mickel v. Walraven, 92 Iowa 423, 60 N.W. 633, and Bristow v. Lange, 221 Iowa 904, 266 N.W. 808. These cases are fully in point, and I agree also with the result reached in each case, but not with the reasoning followed. The Bristow case "reluctantly" follows the Mickel case in holding that "strictly speaking" the statute of limitations had not run in either case. In my humble judgment, the procuring of the judgment lien in each case added nothing to the right of action of the plaintiff, but was but a preliminary step in the procedure, and that, in each case, the statute of limitations hadin fact run, under the rule of Prescott v. Gonser, 34 Iowa 175, followed in numerous later decisions of this court.

RICHARDS, C.J., concurs in the foregoing.