Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-10
SUPREME COURT DECISION.
CONTINUED from Page 81

the redemption should be equally
broad. The important question,
however, Is whether plaintiff should
be allowed to redeem at all.
The defendants here urge that the
plaintiff is seeking to enforce a stale
claim, and that, as such, its former
right to redeem should be barred.
The plaintiff contends that 1t is
merely asking for an accounting be-
tween Il and the defendants. whom II
STYLES "its tenants in common, for
the rents and profits Of the lands ac-
cruing since the death of Mrs. Nc
Cullough and the eXtinguishment, by
that event OF her life estate, hut as
we have seen, the bill cannot be en-
tertalned for such purpose. The
plaintiffs interest in the real prop
erty in question arose at least when
the viii Of Mccullough was prohated.
At tha thine plaintiff had such an
estate in the land as Tesiduary devil
see that It might have paid to Kees
the amount due upon the mortgages
even before suit to foreclose and
thus extingulsh them. Nothing, 50
far as appears by this record, ever
arose to prevent such action on the
part of the plaintiff. The life estate
of Mrs. Mccullough was no obstacle
to prevent plaintiffs redemption for
being a tenant in common with her,
It could have charged her with her
proportional part Of the redemption
fund 1t was more than IA years af-
ter It thus became entitled to redeem
from the effect of the KEGS mort
cages until the plaintiff instituted
this suit
In the settlement of the McCul-
Tough estate, the plaintiff was served
with citation on the 9Th day of De-
cember 1894, to show cause in the
county court of Linn county why
these very premises should not be
sold for the satisfaction Of claims
against the Mccullough estate.
Prior to the KEGS foreclosure it was
notified by correspondence with ].
NJ. Somers, an attorney, of the situa-
ton and was importuned to make
some provision for the payment OF
the mortgage, but declined to do so
So far as the records appear It made
no answer to the citation to show
cause why the land should not be
sold at administrator sale. 1t was
certainly by these facts put upon its
inquiry as to its interest in the lands
as early as December 6, 1894 the
date the citation was served upon it,
The general statute of limitations
for the recovery of real property is
10 years. L. o. l.. Sec. 3. While
courts of equity are not bound strict
ly, like courts of law, by the statutes
of limitations, yet equity will act by
analogy under their restrictions and
tho rule is that when suit is brought
after the statutory time, the plaintiff
must plead and prove that laches on
its part do not exist, and the facts
must be specified and precisely
pleaded Wills " Nehalem Coal
company, So Or. 81; Wilson V. Will
son, Al Or. 459.
There Is no reason assigned in the
complaint why the plaintiff did not
act promptly in asserting its claims
to the land in question Meanwhile,
the land has passed through several
hands to the present defendants.
Some Of the parties connected with
the transaction are dead. The testi-
mony shows that KEGS, the mortga-
gee under whom the defendants
claim, is also dead, and his estate
finally settled. The delay of plaintiff
has certainly worked to the prejudice
of the persent holders of the lands,
if its contention is to prevail here.
Long after their grantor's death they
are assailed by a claim which could
have been urged over IA years ear
Ter. The plaintiff now claims under
the alias Congregations Seminary
at Forest Grove" which it would not
recognize when cited in the county
court and, while its conduct in that
proceeding does not operate as an es-
topDel, not having been pleaded as
such, still it is a circumstance which
strongly imputes laches to the plain
tiff, The testimony shows that the
land brought as near what it was
] N'ltu 40 COulu ue expected at q
forced sale 1t has advanced in
value, not only on account of the de-
velopment of the country in general
but also by reason of the improve
ments made upon it by the present
holders in establishing their homes
upon it. If the plaintiff would rear
where it has not sown, it should have
begun sooner. The laches render II
ineQuitable now to allow the present
defendants to be ousted by a claim
so stale.
The decree of the circuit court
should be reversed and the suit dis.
missed