Bryan v. Kales

having stated the facts as above reported, delivered the opinion of the court.

The grounds upon which the District Court sustained the demurrer to the complaint are not shown by the record otherwise than, from the. statement in the opinion of the Supreme Court of the- Territory that it was because of laches in bringing suit. ' The latter court said :' “ It appears that the grantor of the plaintiff stood' by and saw all this property sold, and' had a right to redeem the same .in six months after the sale; that her residence was Maricopa County at the death of her *134husband, and its continuance will be presumed to be there, the contrary not having been alleged; that there was no action brought to set aside the judgment; that from the 8th day of November, 1883, till the [2] 9th day of June, 1887 — nearly four years — she saw the'.property greatly enhancing in value, saw it sold time and again,- then sells it to the plaintiff, who now comes into .a court of equity and asks a cancellation of.. all those sales. If the bill had shown, and. which plaintiff was,_ allowed to show, that 'any disability existed on the part of anyone having an interest in the property at the time , of sale, we would grant the prayer of the bill. No such disability being shown, can we think of allowing the party who has so. long slept upon her rights to divest the present owners of their valuable property ? ”

. The difficulty with this view is that it has no foundation in the allegations of the complaint. From the mere fact that. Mrs. Bryan’s residence at the time of her husband’s death was in Maricopa County, where the real estate iir question is-situated, the court below presumed not only that it continued there, but that she “stood by” for nearly four years, forbearing to exercise her right.to redeem, and “saw the property enhancing in value — saw it sold, time and again ” — without asserting any interest in it. No such presumption was justified by the allegations of the complaint. The case made by those'' allegations is that ■ of an administrator, who, having claims against the. estate he represented, which were secured by mortgage upon real property of which his intestate died seized, and having in his hands money sufficient to discharge those claims, yet resorted to the expedient of taking judgment in his individual -name against himself in his fiduciary capacity, for the amount of the claims and for attorneys’ fees, and caused the property to be sold. And of all those facts — the demurrer admits ■ — • the defendants and each of them had full notice when they made -their respective purchases. Beferring to the allegation in the complaint, that the administrator, at the time he sued himself, had in his hands sufficient money to-pay off his claims, the counsel for the defendants suggest that this might.well be, if those moneys had been applied to the *135debts in question without providing for the payment of other debts against the estate, the expenses of administration, or preferred claims; and that for aught appéaring in the complaint, it may have-been the duty of the administrator to apply the moneys in his hands to other debts and claims. A sufficient answer to this suggestion is, that the. allegation in the complaint upon this point imports a failure of the administrator to use the moneys in his hands to. discharge the debts held by him, when he could properly have so used them.

It is true, as contended, that where the -bill shows such laches upon the part of the plaintiff that a court -of equity ought not to give relief, .the defendant need not interpose a plea or answer, but may demur upon- the ground of want of equity apparent on the bill itself. Lansdale v. Smith, 106 U. S. 391, 393; Speidel v. Henrici, 120 U. S. 377, 387. But no such case is made by the bill. The limitation prescribed by the statutes of Arizona for the commencement of an action to recover real property, br the possession thereof, is five years. If this statute governs courts of. equity as well as courts of law. -— and such is the plaintiff’s contention —- the present action is not barred by limitation. If, as contended by the defendants, a court, of equity may deny relief because of laches in suing, although the plaintiff commenced his action within the period limited by the statute for actions at law, still the granting or refusing relief, upon that ground, must depend upon the special-circumstances of.each case. Harwood v. Railroad Co., 17 Wall. 78; Brown v. County of Buena Vista, 95 U, S. 157, 160; Haywood v. National Bank, 96 U. S. 611, 617. The casé made by the complaint in this suit is one of fraud -upon the part of the administrator, and in .that fraud — if the allegations of the complaint are sustained by proof — the defendants and each of them must be held to have participated. The circumstances as detailed in the complaint are so peculiar in .their character, that a court of equity should be slow in denying relief upon the mere ground of laches in bringing suit.

Other questions arise upon the face .'of the complaint, namely, as to whether Mrs. Bryan had such interest in the property as made her a necessary party to the suit of foreclosure *136instituted by Nales in bis individual capacity, and as to bow far the validity of the decree of foreclosure and sale was affected by the very unusual fact that the same person was both plaintiff and defendant in that suit. Perkins v. Se Ipsam, 11 R. I. 270; McElhanon v. McElhanon, 63 Illinois, 457; Hoag v. Hoag, 55 N. H. 172. But as these questions were not considered by the court below, and as their correct determination can be best made when all the facts are disclosed, we express at this time no opinion upon them, and place our decision upon,the ground that the Supreme Court of the Territory erred in holding that the complaint failed to show that the pláintiff was entitled to relief from a court of equity. The defendants should be required to meet the cáse upon its merits.

The decree is reversed with directions that the demurrer to the complaint loe overruled, andfor f 'mother proceedings consistent with this opinion.

— I concur in the judgment of this court for the reasons stated ; but I wish to add that in my opinion the judgment recovered by Kales against himself as administrator is’ an absolute nullity.