The plaintiff, having averred in his complaint the execution of
a deed by him to his father, and having conceded its delivery, and
there being no prayer for specific relief as to it, and no
averments that would entitle him to have it set aside for want of
acknowledgment under the prayer for general relief, he cannot set
up that the deed is not operative, even as between the parties, for
want of proper acknowledgment and record.
When a deed is void on its face, the interference of a court of
equity is unnecessary.
Where the difficulty of doing entire justice by reason of the
death of the principal witness or witnesses, or from the original
transactions' having become obscured by time, is attributable to
gross negligence or deliberate delay, a court of equity will not
aid a party whose application is thus destitute of conscience, good
faith, and reasonable diligence.
The mere assertion of a claim, unaccompanied by any act to give
effect to it, cannot avail to keep alive a right which world
otherwise be precluded.
Negotiations for settlement of a disputed matter, which one
party hopes may result in a settlement and adjustment, do not
operate to bar in equity the defense of laches when the other party
gives no encouragement to such hopes, never promises a settlement,
never concedes that his own claims are doubtful, and never
recognizes the other's claims.
The bill in this case alleged that in a suit in equity in the
Supreme Court of the District of Columbia in which the plaintiff
here was defendant, the conveyance under which the plaintiff in
this suit claims had been decreed to be invalid, from which decree
the plaintiffs in that suit had appealed as to other matters
involved, and it set up the pendency of that suit as excuse for the
delay of nineteen years in bringing this one.
Held:
(1) That, the plaintiff not having appealed, it was difficult to
see why that decree was not a bar in this suit.
(2) That it furnished no satisfactory explanation of his laches
herein.
Brooke Mackall, Jr., filed his bill of complaint in the Supreme
Court of the District of Columbia on the first day of June, 1885,
against George W. Casilear and wife; Leonard Mackall and wife; Don
Barton Mackall; Benjamin Mackall; Louise Owens and husband;
Catherine Christy and husband; Edmund Brand and Mary E. Keller,
alleging that Leonard, Don Barton, and Benjamin were his brothers,
and
Page 137 U. S. 557
Louise Owens and Catherine Christy his sisters, all being the
sole surviving children of Brooke Mackall, Sr., and Martha Mackall,
his wife, and that Edmund Brand and Mary E. Keller were the sole
surviving children of Louis Brand. The bill then stated that on or
about December 21, 1863, complainant became owner in fee simple,
through a conveyance to him from Charles W. Pairo, George Randolph,
executor, and Brooke Mackall, Sr., of lots in the City of
Washington, D.C., as follows: lot 2, square 5; lots 3 and 7, square
17; lot 3, square 31; lot 15, square 41; lot 2, square 42; lot 5,
square 43; lot 12, square 56; lot 10, square 62; lots 13, 14, and
17, square 76, and a copy of the deed was annexed. That on or about
May 5, 1866, complainant executed his promissory notes to the order
of his father, and a deed of trust to said Brooke Mackall, Sr., as
trustee, which deed was acknowledged before the latter as notary
public, upon lot 2, square 5; two parts of lot 12, square 56, and
lots 14, 17, and part of 13, square 76, which was recorded June 5,
1867, and a copy whereof was annexed. That there was no
consideration for these notes, but they were made for the
accommodation of complainant's father for the purpose of borrowing
money for the benefit of both, but no money was borrowed, and it
was not intended that any claim on the notes should be set up
against the complainant, and there was no default in the payment of
the same. That about seven years after, a variance occurring
between complainant and his father, his father having possession of
the notes, without complainant's knowledge or consent, advertised
said property for sale, except one subdivision of lots 13 and 14,
square 76, which had in the meantime been otherwise disposed of by
complainant. That the advertisement (a copy of which was annexed)
was published only on three successive days, though the trust deed
required a publication of sixty days. That it was intended that the
sale should be kept concealed from complainant, and it was not held
on the premises, but at the rooms of the auctioneer. That no
bidders were present, and at the instance of his father, the
property was struck off nominally to one Joseph B. Hill, but really
for the benefit of complainant's father,
Page 137 U. S. 558
no money being ever paid by Hill, and his name being used that
it might not appear that the trustee was a purchaser at his own
sale. That this was a scheme devised by the father to divest the
son of his property and obtain it himself without paying anything
whatever for it. That, in pursuance of such scheme, a deed (a copy
of which was annexed) was executed by Brooke Mackall, Sr., as
trustee, to Hill for the nominal consideration of $2,000, though
Hill paid nothing. And complainant charged that the deed was void
and of no effect. This deed was dated June 26, and recorded July 2,
1873.
The bill further averred that on or about March 13, 1867,
complainant conveyed to one Morsell (a copy of which deed was
attached) lot 15, square 41, and lot 5, square 43, in trust to
secure complainant's promissory note for $1,000, payable one year
after date, to the order of his father, which note was endorsed
over to Mills and wife, and was paid in full, and so admitted to be
paid by a deed conveying the same property, dated July 14, 1868, by
Morsell, Mills, and wife, and complainant to Louis Brand to secure
in trust complainant's promissory note for $2,000, payable to his
father's order one year after date, (a copy of which instrument was
attached); that the $2,000 note was an accommodation note, and made
to raise money for the common benefit of both parties, but no money
was raised, and there was no consideration for the note; that about
five years thereafter, there occurring a variance between father
and son, the father, in pursuance of a similar scheme as that
charged as to the other parcels, procured Brand to advertise the
property for sale, and, though publication for three weeks was
required, the advertisement was published only four times
successively, and for three days; that this was without the consent
or knowledge of complainant, and without written request as
prescribed, and the place of sale was at the private rooms of the
auctioneer; that there were no bidders at the sale, but at the
request of Brooke Mackall, Sr., lot 15, square 41, and sublots 2,
3, 4, and 5, lot 5, square 43, were struck off to Hill at the
nominal sum of $2,000, he paying no money, and Brooke Mackall, Sr.,
being the real purchaser,
Page 137 U. S. 559
and no payment or account was made to complainant, whereupon a
conveyance in the handwriting of Brooke Mackall, Sr., was executed
by said Louis Brand, trustee, to Hill a copy of which was annexed,
showing that the deed was recorded July 28, 1873, and complainant
charged that the sale and deed were void. Complainant further
averred that on the 4th of August, 1873, Hill executed a conveyance
(a copy of which was annexed) to John C. McKelden and Edward McB.
Timoney, as trustees, to secure a note of $3,000 of B. Mackall,
Sr., to F. A. Casilear, due in one year from the date thereof. That
said trustees and said Casilear had full knowledge of the defects
of title herein mentioned, and were not
bona fide
purchasers or creditors. That in October, 1874, default having been
made by B. Mackall, Sr., in payment of the note of $3,000, the
trustees McKelden and Timoney advertised the property secured in
the deed of trust to them for sale, and thereupon the complainant
at the date and place of sale so advertised, and before the sale,
read a notice, and caused copies thereof to be served upon Timoney
and McKelden, and Williams the auctioneer, which notice was
attached to the bill, and was to the effect that Timoney, McKelden,
and Williams had no authority to sell the premises, and that
Mackall, Jr., would insist upon all his legal rights to the
premises against them and against any purchaser or purchasers
thereof, and protested against the sale. That the trustees
proceeded to sell, and thereupon Casilear bid in the property at
$2,722.95, and a deed was given by McKelden and Timoney, as
trustees, of sublots 2 and 3 of lot 5, square 43; lot 17, square
76, and two parts of lot 12, square 56. That on the 13th day of
January, 1874, Hill as trustee and in his own right, and B.
Mackall, Sr., joined in a conveyance to Leonard Mackall, as
trustee, of lot 15, in square 41; sublots 2, 3, 4, and 5 of lot 5,
square 43; lots 13, 14, and 17 in square 76, and two parts of lot
12, square 56, for the use and benefit of Mackall, Sr., and subject
to his absolute control and disposal. That Mackall, Sr., departed
this life, February 28, 1880, and the brothers and sisters of
complainant claim the property so conveyed to Leonard Mackall as
trustee, as his heirs and devisees. That Casilear claims title to
lot 17, square 76, and two parts of lot 12, square 56, as derived
from the deed of Mackall, Sr., to Hill and to sublots 2 and 3 of
lot 15, square 43, as derived from the deed of Brand to Hill. That
complainant's brothers and sisters claim title to lots 13, 14, and
17, square
Page 137 U. S. 560
76, and two parts lot 12, square 56, as derived from the deed of
B. Mackall, Sr., to Hill and lot 15, square 41, and sublots 2, 3,
4, and 5, square 43, as derived from the deed of Louis Brand to
Hill which two deeds of B. Mackall, Sr., are declared to be void,
but a cloud upon the property. And that complainant, though not
having the legal title, but being equitably entitled thereto, was
entitled to have such deeds with all subsequent claims of title
decreed null and void. Complainant further stated that some of the
reasons for the delay which had occurred in his not before having
filed a bill to set aside the said conveyances were as follows:
"As to Casilear, he at all times has protested against his
claim, notifying him at the time of his purchase that he should not
submit to the sale, and he has since then been engaged in
negotiations from time to time with him, orally and by mutual
correspondence in writing, which he has hoped would result in a
settlement and adjustment of their differences in regard to the
property held by him. He has received large amounts by way of rents
and profits of said property, and has made no substantial
improvements thereon."
"As to the remainder of such property, he says that soon after
the execution of the deeds made in 1874, the said B. Mackall, Sr.,
became reconciled to complainant, they living together and sharing
the benefit of all property possessed by each in common. He, said
B. Mackall, Sr., constantly assured complainant that he would
rectify all that was wrong in said conveyances to the best of his
ability, which assurance was relied upon by complainant, and was
satisfactory to him."
"Said B. Mackall, Sr., drew up forms of reconveyance to
complainant of such property or parts thereof, one of which he
signed and delivered to complainant, and which are now in
possession of complainant."
"In Feb'y, 1880, he did execute a reconveyance of all his
interests in said property, which was entirely satisfactory to
Page 137 U. S. 561
the complainant, though such reconveyance was attacked by his
said brothers and sisters, and a decree was made adjudging the same
to be void as to the property herein claimed by complainant, from
which decree, however, they claim to have taken an appeal to the
Supreme Court of the United States, and which appeal they claim is
now pending, though such claim is not admitted by complainant.
While such litigation was pending, however, there was, as believed
by complainant, no propriety in bringing suit to enforce what he
claimed to have been sufficiently performed by the execution of
said deed of his father's to him of February 28, 1880, and such
litigation was pending at a very recent date."
Complainant prayed process, and that the defendants might answer
the bill under oath; that the two deeds of B. Mackall, Sr.,
trustee, and Brand, trustee, to Hill be adjudged and decreed to be
null and void, together with all deeds, etc., under the same; that
complainant be adjudged to be the owner of the property free and
clear of all claims and demands of the defendants, and entitled to
an account, and that an account be taken, and for general relief.
To this bill the defendants Casilear and wife demurred upon the
ground of multifariousness, laches, and want of equity, and the
other defendants also demurred upon the ground of prior decree,
multifariousness, etc. The latter demurrer was sustained January
19, 1886, and the bill dismissed. On the 28th day of January it was
stipulated on behalf of the Casilears that the bill might be
considered as amended by adding the averments "that the complainant
had no knowledge of the sales to Hill or either of them at the time
of the conveyance to McKelden and McB. Timoney;" that "the fair
value of the property sold by McKelden and McB. Timoney, trustees,
to Casilear was $7,500;" and that "Brooke Mackall, Sr., left
complainant only one dollar by his will, giving all the rest of his
estate to his other children," etc. The demurrer on behalf of the
Casilears was then sustained and the bill dismissed. The cause was
taken from the special to the general term of the court, and the
decree of the special term affirmed. Thereupon an appeal was taken
to this Court.
Page 137 U. S. 563
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
Apart from the prayers for process, an account, and for general
relief, the specific relief sought is that the two deeds of B.
Mackall, Sr., trustee, and Louis Brand, trustee, to Joseph B. Hill
be decreed to be null and void, together with all deeds, written
instruments, and claims of title whatever derived through the same,
and that complainant be adjudged to be the owner of the property,
free and clear from all claims and demands of the defendants, or
either of them.
The deed of complainant to Mackall, Sr., was dated May 5, 1866,
and recorded June 5, 1867. The deed of Mackall to Hill was dated
June 26, and recorded July 2, 1873. Brand's title was derived
through a conveyance by complainant to Morsell, dated March 13,
1867, and the conveyance of Morsell, Mills, and complainant to him,
dated July 14, 1868. The deed from Brand to Hill was dated and
acknowledged July 29, 1873, and presumably recorded the same day,
though the record gives the date as July 28th. The bill was filed
June 1, 1885. The death of Mackall, Sr., was stated to have
occurred February 28, 1880. This attack was delivered, then, more
than nineteen years after the deed to Mackall; about seventeen
after that to Brand, and nearly twelve years after the other two
deeds were recorded.
It is charged that the deed of May 5, 1866, was given to secure
complainant's two notes amounting to nearly $600 in the aggregate,
for the purpose of borrowing money for the use of father and son,
but that no money was ever borrowed thereon, and that the deed to
Brand was given to secure a note for $2,000, payable to Mackall,
Sr., for the same purpose, likewise not carried out.
Counsel for complainant insisted, upon the argument, that the
deed from Mackall, Jr., to Mackall, Sr., was void because Mackall,
Sr., took the acknowledgment, and that the sales made by Brand and
Mackall, Sr., to Hill were invalid by reason of the omission to
advertise for the time prescribed, and the want of publicity in the
conduct of the sales, and because
Page 137 U. S. 564
these transactions were merely covers for the purchaser by
Mackall himself in fraud of complainant's rights.
If the general rule that an acknowledgment is not essential to
the validity of a deed as between the parties applies here, the
fact that a grantee cannot take the acknowledgment of a conveyance
to himself would be immaterial in this case. The execution of this
deed to Mackall was expressly averred by complainant, and its
delivery conceded; but he alleged that it was given to secure notes
for the purpose of borrowing money for himself and his father, and
that this was not done.
There is no prayer for specific relief in relation to it, nor do
we think the averments such as would entitle complainant to resort
to the prayer for general relief to set it aside by reason of the
want of acknowledgment, if that were a proper ground, and, if void
upon its face, as now contended, the interference of a court of
equity would seem to be unnecessary.
Phelps v. Harris,
101 U. S. 370,
101 U. S. 375.
We shall not, therefore, review the various statutes of Maryland,
acts of Congress, and authorities referred to by counsel as tending
to justify the position that in the District of Columbia a deed is
not operative, even as between the parties, notwithstanding
delivery, unless it be acknowledged and recorded.
As already stated, nineteen years after the conveyance to
Mackall, Sr., seventeen after that to Brand, twelve after the deeds
to Hill and five after Mackall's death, the son charges the father
with what his counsel calls "actual, active, and intense fraud,"
and, in explanation of the delay in seeking to be relieved from the
consequences of this conduct on his father's part, says that "soon
after the execution of the deeds made in 1874" (the conveyances by
Hill and Mackall, Sr., to Leonard Mackall, and by McKelden and
Timoney to Casilear, were in 1874), his father became reconciled to
him, and they lived together, and shared the benefit of all
property possessed by each in common, and his father constantly
assured him that he would rectify all that was wrong in said
conveyances to the best of his ability, which assurance was relied
upon by complainant, and was satisfactory to him; that his father
drew up forms of reconveyance to him of such property
Page 137 U. S. 565
or parts thereof, one of which he signed and delivered to
complainant, and that
"in February, 1880, he did execute a reconveyance of all his
interests in said property, which was entirely satisfactory to
complainant, though such reconveyance was attacked by his said
brothers and sisters, and a decree was made adjudging the same to
be void as to the property herein claimed by complainant, from
which decree, however, they claim to have taken an appeal to the
Supreme Court of the United States, and which appeal they claim is
now pending, though such claim is not admitted by complainant.
While such litigation was pending, however, there was, as believed
by complainant, no propriety in bringing suit to enforce what he
claimed to have been sufficiently performed by the execution of
said deed of his father's no him of February 28, 1880, and such
litigation was pending at a very recent date."
As complainant did not appeal from the decree passed against him
in favor of his brothers and sisters in relation to this property,
it must still stand as a bar, and it is not easy to see why, under
the circumstances stated by complainant, that litigation did not
include the same matters and things which are drawn in controversy
in this suit. Supposing that the bill of the complainant's brothers
and sisters attacked to deed of February 28, 1880, upon the ground
that its execution was secured by undue influence, would it not
devolve upon the defendant in that case, the complainant herein, to
set up that he was in fact the owner of the property; that his
father has obtained the conveyance from him under circumstances
constituting a fraud upon him, and that the deed of February, 1880,
was given by the deceased in order to restore to the defendant,
complainant here, what he had been wrongfully deprived of? And, as
complainant contends such were the facts, why was not that defense
set up? If such were not the facts, what becomes of the
complainant's bill? But assuming that the matters relied on here
are not necessarily inconsistent with that decree, then according
to his own contention complainant occupies this position: having
accepted
Page 137 U. S. 566
a deed from his father completely condoning the causes of
complaint which he alleges he had against him, he now, after his
father's death, seeks to go behind that final and satisfactory
compromise, because upon some ground, outside of anything litigated
in this suit, his brothers and sisters succeeded in defeating the
deed in a controversy between him and them. This, we think, he
cannot do, nor can we admit complainant's ideas of propriety in
bringing this bill while that was pending, or in declining to
litigate these matters in that action, as furnishing any
satisfactory explanation of the laches which has characterized his
conduct. If that laches could in any respect be held to be excused
by reason of his expectations from his father, we cannot allow him
to plead that, because those expectations in part failed of
realization through some external cause, therefore he is any the
less bound, so far as his dead father is concerned, by a delay
which would otherwise be fatal.
The doctrine of laches is based upon grounds of public policy,
which requires for the peace of society the discouragement of stale
demands, and where the difficulty of doing entire justice by reason
of the death of the principal witness or witnesses, or from the
original transactions having become obscured by time, is
attributable to gross negligence or deliberate delay, a court of
equity will not aid a party whose application is thus destitute of
conscience, good faith, and reasonable diligence.
Jenkins v.
Pye, 12 Pet. 241;
McKnight
v. Taylor, 1 How. 161,
42 U. S. 168;
Godden v. Kimmell, 99 U. S. 201;
Lansdale v. Smith, 106 U. S. 391;
LeGendre v. Byrnes, 44 N.J.Eq. 372;
Wilkinson v.
Sherman, 45 N.J.Eq. 413.
The time for this son to have attacked his father on the ground
of fraud was prior to that father's death; yet no movement was made
to set aside these alleged fraudulent conveyances until five years
after that event transpired. The father died testate, and by his
will the property in controversy, subject to the Casilear
conveyances, passed to the brothers and sisters of complainant, as
the father's devisees, who were natural objects of the bounty of
the testator, and, so far as this record shows, entitled to his
consideration. The allegations
Page 137 U. S. 567
of the bill fall far short of discharging the burden, which
rested on the complainant, of satisfying the court that his delay
had not operated to the prejudice of these parties.
Without regard to the deed of February, 1880, the rule in
question would forbid relief, and, so far as that deed is
concerned, complainant could not elect to take under it and then
claim that delay was excused while he experimented in trying his
case by piecemeal. Of course it must be admitted that an
affectionate son would feel a natural reluctance to make a charge
of fraud against his father, but where the time consumed in
overcoming this is prolonged as in this instance, we cannot
recognize the relationship as sufficient explanation of the
laches.
These views are applicable to the defendants Casilear. Casilear
purchased at a sale under a trust deed given to secure a note for
$3,000, in respect to which there is no allegation that the note
was not for value received. The excuse for the delay is that
complainant protested against Casilear's claim, and notified him
that he would not submit to the sale; but the mere assertion of a
claim, unaccompanied by any act to give effect to it, cannot avail
to keep alive a right which would otherwise be precluded. It is
said, however, that complainant had been engaged in negotiations
from time to time with Casilear, orally and by mutual
correspondence, in writing, which complainant hoped would result in
a settlement and adjustment of their differences in regard to the
property held by him; but the bill does not state that Casilear
gave any encouragement to such hopes, or ever promised any
settlement or adjustment, or ever conceded that his purchase was in
any respect doubtful, or ever in any way recognized the claims of
the complainant.
Under the circumstances, we entertain no doubt that the
demurrers were properly sustained, and the decree is
Affirmed.