fraudulent concealment; and as the facts conceded in the pleadings, in our judgment, indicate that he could not have been without knowledge of the existence of such rights, and the defendant's conduct in the interim, he must have regarded such rights acquired by the defendant as just and equitable, and acquiesced in them, otherwise negligence would seem justly imputable to him. In Linsay Petroleum Co. v. Hurd, 5 P. C. Cas. 8, Eng. R. 196, the court says: "The doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. . . . . Two circumstances, always important in such cases, are, the length of the delay, and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking one course or the other, so far as relates to the remedy."

Upon analogous principles, the lapse of time, especially when there was equal means of knowledge of the original transaction, and a failure to take any steps under the assignment, and no explanation or excuse for such delay, while at the same time the defendant was seeking openly in the same court to protect his title to the land in controversy from the action of the executors, and expending large sums in the settlement of such litigation, combined with all the circumstances set forth, much of which is matter of record, bring the case within the rule that lapse of time and staleness of the equity or claim requires, upon principles of equity and justice, that the decree of the court below be affirmed and the bill dismissed.

ON REHEARING.

Per CURIAM. The point suggested as to the assignee is immaterial. It is the staleness of the proceeding, under the circumstances, which influenced the judgment of the court.

EQUITY STALE CLAIM. The maxim that equity aids the vigilant, and not those who slumber on their rights, is applied to one who holds a stale equitable title: Frost v. Wolf, 77 Tex. 455; 19 Am. St. Rep. 761, and note. One who desires the aid of equity should seek it with reasonable diligence:

Bausman v. Kelley, 38 Minn. 197; 8 Am. St. Rep. 661, and note; Germantown etc. R'y Co. v. Filler, 60 Pa. St. 124; 100 Am. Dec. 546, and note; Hudson v. Layton, 5 Harr. (Del.) 74; 48 Am. Dec. 167, and note. A court of equity has always refused to aid stale demands: Douglass v. Douglass, 72 Mich. 86: Montgomery v. Noyes, 73 Tex. 203; Brown v. Roberts, 75 Tex. 103. The defense of stale demand will not avail in favor of one who sets it up against a claim that has accrued within ten years: McCampbell v. Durst, 73 Tex. 410.

EQUITY-STALE CLAIM-STATUTE OF LIMITATIONS. — Ordinarily, courts of equity adopt the time fixed by the statute of limitations for barring claims, but this rule is not inflexible, and may depend upon the allegations and proof: Reynolds v. Sumner, 126 Ill. 58; 9 Am. St. Rep. 523, and note. In cases where equity has exclusive jurisdiction, the statute will not be applied: Dugan v. Gittings, 3 Gill, 138; 43 Am. Dec. 306, and note; Mowatt v. Wright, 1 Wend. 355; 19 Am. Dec. 508, and note; Shelby v. Shelby, Cooke, 179; 5 Am. Dec. 686, and note.

LACHES AS A BAR TO RELIEF IN EQUITY.—It is, and long has been, the invariable practice of courts of equity to deny relief to one who has resorted to them after unreasonable delay, though no statute of limitations was ap plicable to his suit: Hanner v. Moulton, 138 U.S. 495 (thirteen years); Harris v. Hillegass, 66 Cal. 79 (twenty years); Godden v. Kimmell, 99 U. S. 201, 210 (fourteen years); Codman v. Rogers, 10 Pick. 119 (seventeen years); Groenendyke v. Coffeen, 109 Ill. 339 (sixteen years); Matter of Neilley, 95 N. Y. 390; 2 Story's Eq. Jur., sec. 1520.

The rule upon this subject is well stated in the following language, from the decision of the supreme court of the United States in the case of Speidel v. Henrici, 120 U. S. 387: "Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights, and shows no excuse for his laches in asserting them. 'A court of equity,' said Lord Camden, has always refused its aid to stale demands, where the party slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court': Smith v. Clay, 3 Brown Ch. 640, note. This doc. trine has been repeatedly recognized and acted on here: Piatt v. Vattier, 9 Pet. 405; McKnight v. Taylor, 1 How. 161; Bowman v. Wathen, 1 How. 189; Wagner v. Baird, 7 How. 234; Badger v. Badger, 2 Wall. 87; Hume v. Beale, 17 Wall. 336; Marsh v. Whitmore, 21 Wall. 178; Sullivan v. Portland and Kennebec R. R. Co., 94 U. S. 806; Godden v. Kimmell, 99 U. S. 210. In Hume v. Beale, 17 Wall. 348, the court, in dismissing, because of unexplained delay in suing, a bill by cestuis que trust against a trustee under a deed, observed that it was not important to determine whether he was trustee of a mere dry legal estate or whether his duties and responsibilities extended further. See also Bright v. Legerton, 29 Beav. 60, and 2 De Gex, F. & J. 606. When the bill shows upon its face that the plaintiff, by reason of lapse of time and his own laches, is not entitled to relief, the objection may be taken by demurrer: Maxwell v. Kennedy, 8 How. 210; National Bank v. Carpenter, 101 U. S. 67; Landsdale v. Smith, 106 U. S. 391."

The views thus expressed have been adopted by the supreme court of California in several cases, and are thus stated at length in the decision of Bell v. Hudson, 73 Cal. 287: "In the view we take of the case, it is unnecessary to pass upon the first question. Assuming in favor of the plaintiff what we

are inclined to think is true,- viz., that the trust is not one of those implied trusts against which the statute runs, - we think that so far as the claim for relief is founded upon the partnership transaction it is stale, and that a court of equity will not aid its enforcement. This is a defense peculiar to courts of equity, and applies, although no statute of limitations governs the case: Harwood v. Railroad Co., 17 Wall. 81; Sullivan v. Portland etc. R. R. Co., 94U. S. 811; God len v. Kimmell, 99 U. S. 201; Sheldon v. Rockwell, 9 Wis. 181; 76 Am. Dec. 265; Harrison v. Gibson, 23 Gratt. 212; Stout v. Seabrook, 30 N. J. Eq. 189, 190; Matter of Neilley, 95 N. Y. 390; Groenendyke v. Coffeen, 109 Ill. 329; 2 Story's Eq. Jur., sec. 1520. It is not the same thing as equitable estoppel, although it has been termed a quasi estoppel: 2 Pomeroy's Eq. Jur., secs. 816, 817; and hence the rules governing equitable estoppel (see Boggs v. Merced Mining Co., 14 Cal. 279) do not apply. The ground of the doctrine was stated by Taney, C. J., delivering the opinion of the supreme court of the United States in McKnight v. Taylor, 1 How. 168, as follows: 'We do not found our judgment upon the presumption of payment, for it is not merely on presumption of paymeat, or in analogy to the statute of limitations, that a court of chancery refuses to lend its aid to stale demands. There must be conscience, good faith, and reasonable diligence, to call into action the powers of the court. In matters of account, where they are not barred by the act of limitations, courts of equity refuse to interfere after a cousiderable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice when the original transactions have become obscure by time and the evidence may be lost.' The principal foundations of the doctrine are acquiescence and lapse of time. . . . . Thus it is a material circumstance that the claim was not made until after the death of those who could have explained the transaction: See Mooers v. White, 6 Johns. Ch. 360; Barnes v. Taylor, 27 N. J. Eq. 259; German-American Seminary v. Kiefer, 43 Mich. 111; Bolton v. Dickens, 4 Lea, 577; Hatcher v. Hall, 77 Va. 578. So it has been held that a change in the value and character of the property may be material: Bliss v. Prichard, 67 Mo. 187; Allen v. Allen, 47 Mich. 79. But as stated by Davis, J., in McQuiddy v. Ware, 20 Wall. 19, 'there is no artificial rule on such a subject, but each case as it arises must be determined by its own particular circumstances.' In other words, the question is addressed to the sound discretion of the chancellor in each case: Brown v. County of Buena Vista, 95 U. S. 160; Rayner v. Pearsall, 3 Johns. Ch. *586; Landrum v. Union Bank, 63 Mo. 56."

....

In Piatt v. Vattier, 9 Pet. 416, a suit was brought by one claiming a right to a conveyance of a lot of land in Cincinnati after a great lapse of time, but the statute of limitations did not constitute any bar to the action,- 1. Because it was not pleaded nor relied upon; and 2. Because one of the parties, by his non-residence or absence from the state, was within one of the exceptions of the local statute of limitations, but the court declared "that the lapse of time is, upon the principle of the court of equity, a clear bar to the present suit, independently of the statute."

It has been insisted that the defense of laches could not be asserted by way of demurrer, because the court could not know what facts and circumstances may have existed to excuse the complainant's delay. The reply to this is, that the courts require the complainant to state what excuse, if any, he has for his delay, and will dismiss his bill if a sufficient excuse is not given, and will do this either upon demurrer or in the absence of demurrer, upon. the mere suggestion that the claim is stale. In other words, it is a part of the complainant's cause of action to show that his claim is not stale: Bell v.

Hudson, 73 Cal. 285; Speidel v. Henrici, 120 U. S. 387; Harris v. Hillegass, 66 Cal. 79.

Many of the cases in which the suggestion that the claim was stale has been sustained were suits for an accounting, but the rule is not confined to suits of that class nor founded upon considerations peculiar to them, but rests upon the broad principle that equity will not act upon stale claims of any character. The following were not suits for an accounting, unless every suit to enforce a trust may be so regarded, nor were any of them decided upon the ground of the statute of limitations operating either directly or by analogy. In every instance the court refused relief because the claim was stale, except in the case of West v. Russell, 74 Cal. 544, in which two out of three judges placed their concurrence in the opinion on the ground of the staleness of the claim. See Birdsall v. Johnson, 44 Mich. 134 (to remove doubt from title); Bliss v. Prichard, 67 Mo. 181 (to establish an involuntary trust); West v. Russell, 74 Cal. 544 (to compel transfer of one half of property); Coddington v. R. R. Co., 103 U. S. 409 (to rescind contract); Shorter v. Smith, 56 Ala. 210 (to declare a trust); Hanner v. Moulton, 138 U. S. 486 (to cancel deeds and establish title); Speidel v. Henrici, 120 U. S. 387 (to establish trust); Hume v. Beale, 17 Wall. 336 (to recover for breach of trust); Richards v. Mackall, 124 U. S. 183 (to set aside a sale); Piatt v. Vattier, 9 Pet. 416 (to establish a trust); Godden v. Kimmell, 99 U. S. 201 (to establish a trust); Castner v. Walrod, 83 Ill. 171 (to compel conveyance).

HOME MUTUAL INSURANCE COMPANY V. OREGON RAILWAY AND NAVIGATION COMPANY.

[20 OREGON, 569.]

INSURANCE - SUBROGATION OF INSURER. - Where property insured is destroyed by and through the negligence of a third party, the insurer, paying the loss, is, to the extent of his payment, subrogated to the rights and remedies of the owner against the wrong-doer. INSURANCE-SUBROGATION OF INSURER PARTIES PLAINTIFF. Where the value of property insured, and destroyed through the negligence of a third person, exceeds the amount of insurance paid, the insurer, by making such payment, only acquires a joint interest with the owner to the extent of the payment in the cause of action against the wrong-doer to recover the whole loss, and in bringing such action, both the insurer and the owner must be joined as co-plaintiffs.

ACTION by the plaintiff insurance company alone as plaintiff to recover of the defendant company the sum of $19,888.14 paid by plaintiff to one Koontz as insurance on building totally destroyed by fire caused by the negligence of the defendant company. The total value of the property destroyed was $36,361.72. The defense of the defendant company consisted of a general denial, and the further defense that, prior to the commencement of this action, Koontz sued the defendant company for the total amount of his loss, and in that action re

covered judgment for the sum of seventeen thousand five hundred dollars, which judgment was fully paid by the defendant company as total compensation for the injury caused him by said company; that prior to the commencement of said action the plaintiff company had full knowledge of the loss; that during the pendency of such action, and before its final termination and the payment of the judgment therein, the defendant company notified the plaintiff company thereof, "and requested it to take such steps as it might deem necessary to protect any interest or claim upon the proceeds of the judgment, to be recovered therein, which it might have; that the insurance company, upon the receipt of such notice, disclaimed any right, title, or interest in the said judgment in favor of Koontz, or the proceeds thereof, and declined to take any steps, legally or otherwise; and that by reason of the failure of the insurance company to unite with the said Koontz in the prosecution of said action, and failure to disclose their interest, and to take any steps to prevent the collection of such judgment, whereby Koontz was permitted to receive the entire proceeds of said judgment, the insurance company was guilty of a fraud upon the rights of the defendant, and is estopped from prosecuting this action." The plaintiff company demurred to the defense set up, as insufficient, and the demurrer being overruled, it appealed.

John M. Gearin, for the appellant.

W. W. Cotton and Zera Snow, for the respondent.

LORD, J. The question presented by the contention for the plaintiff is, that if a loss under a policy of fire insurance is caused by the wrongful act of a third person, the insurer, upon making payment to the insured pro tanto, is subrogated to the rights and remedies of the insured, and may maintain against the wrong-doer an action in his own name, and need not prosecute it in the name of the insured.

This action is brought by the plaintiff in its own right, upon the assumption that the effect of the insurance was to create in the plaintiff a pecuniary interest in the property insured, and that when it was destroyed by the wrongful act of the defendant, whereby it became liable, and was required to pay for the loss to the extent of the insurance to the insured, it became entitled to a legal remedy against the defendant in its own independent right, to the extent which it was compelled to pay for such loss occasioned by the defendant's