a few thousand dollars, and it grew to be worth many times that amount; the cash judgment alone being $48,000. There, the property had been improved. Here, the property has been improved, and here, in addition to the improvements, the appellant has expended $28,000 for the enhancement of the value of this property.

If one with sufficient notice or means of knowledge of his rights and of all of the material circumstances of the cases lies by for a considerable time and knowingly and deliberately permits another to deal with property or incur expense under the belief that this transaction has been recognized, or freely and advisedly abstains for a considerable lapse of time from impeaching it, there is acquiescence, and the transaction, although originally impeachable, becomes unimpeachable in equity. 2 Herman on Estoppel and Res Judicata, § 1063. It is a familiar principle that courts of equity will only grant relief in cases in which the application therefor is made promptly and without unreasonable delay, whatever may be the merits of the controversy. Laches and neglect ought forever to be discouraged. There is in chancery always a limitation. Nothing will bring a court of equity into action but pure equity and a reasonable diligence. The strongest equity may be forfeited by laches or abandoned by acquiescence. Nothing can call forth an equity court into activity but conscience, good faith, and reasonable diligence. Where these are lacking the court is passive, and does nothing. Laches and neglect are always discountenanced. Great Western

Min. Co. v. Woodmas of Alston Min. Co. et al., 14 Colo. 91, 23 Pac. 908; Peebles v. Reading, 8 Serg. & R. (Pa.) 493; Sullivan v. R. R. Co., 94 U. S. 811, 24 L. Ed. 324; Smith v. Clay, 2 Amb. 645. It is true, as a general rule, that when, in case of an express trust, the relation of trustee and cestui que trust is admitted to exist, and there is no assertion of adverse claim or ownership by the trustee, lapse of time can constitute no bar to relief, but, where the trust relation is repudiated. or the acts of the parties, or other circumstances, give rise to presumptions unfavorable to its continuance, in all such cases a court of equity will refuse relief on the ground of lapse of time. The fraud must be one that is secret and concealed, and not one that is patent and known. The presumption is that if a party affected by any fraudulent transaction or management might, with or dinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it. De Mares v. Gilpin, 15 Colo. 76, 24 Pac. 568.

Measured by this rule, the plaintiff was at fault. Having failed to receive her instalment of interest each 6 months for 13 years, she had notice that the defendant had repudiated the trust, if any existed, and it was then her duty to make such investigation as would advise her of the full situation. Having had

notice enough to excite her attention, she had notice of everything to which it is subsequently found that such inquiry might have led, and this inquiry, if any had been made, would have led to the information that this property, which had at one time belonged to the estate, was now held by the defendant, claimed by him as his own property, and dealt with by him as such. But it is said that it was the duty of the defendant to inform the plaintiff that there was nothing for her, and that, having failed to inform her how he was dealing with the property, he is guilty of having concealed it from her. This is not the law as we understand it. It was her business to inquire as to what had become of this property. Slight inquiry would have informed her as to the full situation. "Concealment by silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry." De Mares v. Gilpin, 15 Colo. 76, 24 Pac. 568; Wood v. Carpenter, 101 U. S. 143, 25 L. Ed. 807. There is no proof of anything of that sort here. The order of the county court to sell the Smith-Rice note was made in April, 1881, and the entry showing the sale of the note was made in June, 1881. This was a matter of record. On July 20, 1881, the deeds from defendant to Mrs. Wallace and from Mrs. Wallace to T. Dewey Woodruff, of the Bent county lands, were recorded. On July 26, 1881, the deeds between the same parties as to the Las Animas county lands were recorded. On September 23, 1881, the deed from John to defendant for the Trinidad lots was recorded. On September 30, 1881, the deed from John to T. Dewey Woodruff, covering the lands sold by Collins, trustee, was recorded. On the same date the power of attorney from T. Dewey Woodruff to T. T. Woodruff was recorded. On March 30, 1882, petition to sell real estate in Adams county, Ill., was institu'ed, and plaintiff, Williams, appeared and filed her answer. In October, 1883, the derd from T. Dewey Woodruff and Mrs. Wallace to T. T. Woodruff, of the Las Animas county lands, was recorded. In March, 1885, deed from T. Dewey Woodruff to defendant for the Las Animas county lands was recorded. In March, 1885, deeds were recorded in Las Animas and Bent counties, showing transfers from T. Dewey Woodruff to Mrs. Wallace, and from her to defendant. In December, 1885, defendant deeded to F. T. Moore an undivided half interest in certain lands. In 1887 defendant sold certain lots to the La Junta Town Company. In 1890 he made a declaration of trust of the Highland addition to the people of La Junta. So it appears that there was no effort upon the part of defendant to conceal any of these proceedings. The deeds were promptly recorded and notice thereby promptly given to all the world that he was treating this property as his own. There was an absolute lack of any reasonable diligence or any diligence whatever on

the part of plaintiff to discover these transactions. She could have discovered all these matters by simply writing to the court at Trinidad, and to the recorders of the several counties. Having had the means, she must be presumed to have had the knowledge itself. "Reasonable diligence is always necessary to incite the activity of a court of equity. The strongest equity may be forfeited by laches or abandoned by acquiescence." McLaughlin v. Thompson, 2 Colo. App. 140, 29 Pac. 817.

It is said in Warren v. Adams, 19 Colo. 526, 36 Pac. 608: "An essential element in a case to constitute laches is that the party whose delay is in question shall have been blamable therefor in the contemplation of equity; that he ought to have moved before, if he desired the peculiar and discretionary relief which courts of equity afford. There must, therefore, have been knowledge, actual or imputable, of the facts, which should have prompted a choice either to diligently seek equitable relief or thereafter to be content with such remedies as a court of law might afford." In this case, if the plaintiff did not have actual knowledge, she at least had imputable knowledge of the facts. Having knowledge that the estate was treated as insolvent, and failing and neglecting to make any of the numerous inquiries which would have put her in possession of all the circumstances, she will be deemed to have slept upon her rights, and cannot now be afforded relief.

In the case of Bateman v. Reitler, 19 Colo. 553, 36 Pac. 551, it is said: "If she was entitled to the portion owned by Robert Standring at the time of his demise, she should have set up such claim; instead of doing this she waited nearly four years after the confirmation of the sale before asserting such claim. In the meantime a portion of the property had been deeded by the purchasers, and third parties had paid out large sums upon the faith of the order of the court. During all this time, the purchasers had been in possession, presumably paying taxes upon the property, or otherwise it would have been sold for taxes. In this new country the value of city property fluctuates continually, and parties claiming title thereto cannot be allowed, with full information, to remain silent for years, while interested parties invest on the strength of a title apparently perfect. To allow plaintiffs in error to maintain this suit would be a manifest injustice and a fraud upon the rights of the defendants. By a familiar principle, a party who is guilty of laches or unreasonable delay in asserting his rights must be denied equitable relief." In the case before the court, instead of waiting four years, as in the Bateman v. Reitler Case, the plaintiff saw fit to wait for 13 years, during which time she had permitted the defendant to treat this property as his own. He had donated to the public, in a manner which he considered would in

ure to the benefit of this property, upwards of $28,000. He had erected valuable improvements upon the property. He devoted the energies of the best years of his life to the upbuilding of the communities in which this property was situate, so as to make it valuable.

What is said in the case last cited as to the fluctuating value of property in this new country is peculiarly applicable to this case. For instance, about the time that Mr. Woodruff was appointed executor, Mrs. French, one of the original plaintiffs in this action and an aunt of plaintiff, Williams, wrote to certain citizens of Trinidad as to the value of this estate. They informed her that the entire property was worth but a few thousand dollars; that the lands known as the "Powell Canon Lands," being the same lands which were sold under the Hill trust deed, were worth from $1.25 to $2.50 per acre; yet we find sometime later that defendant sold a portion of these lands for $100 per acre, and it is said that, at the time of the trial of this case, they were again of but nominal value. So with the lands in Trinidad and in La Junta. Some years the prospects were bright, and the lands would be worth considerable money. Other years there would be no market for them, and they would be of but little value. This is but the experience of nearly all new communities. Plaintiff may not sit by and watch the defendant treat the property as his own, sell it, exchange it, improve it, and expend his money for public improvement to enhance the value of the property until it becomes extremely valuable, and then say it belongs to her and his labor was vain. Having failed to speak when equity demanded that s. should, she cannot now be heard when conscience demands that she be silent. True, she claims that she did not have knowledge of these things, but she had the means of knowledge, and, having had the means of knowledge, she will be considered as having had the knowledge itself.

In Hagerman v. Bates, 5 Colo. App. 402, 38 Pac. 1104, Judge Bissell says: "When the foundations of our system of equity jurisprudence were first laid by the learned lawyers and the wise judges who were its authors, it was declared that whenever a party invoked the extraordinary powers of a court of equity to compel the specific performance of a contract, he must proceed with both diligence and promptness. The absence of this diligence has long since become crystallized in the legal term 'laches,' which is incapable of an exact definition, and dependent upon neither the lapse of time nor the force of those statutes which, in actions at law, determine generally the plaintiff's right. The defense of laches is in no sense dependent upon the statute of limitations. The lapse of time and the staleness of the claim are undoubtedly the governing considerations which control the application of this rule, but the parties are always held bound to

proceed with reasonable diligence in the enforcement of their rights." Then, after reciting the facts, the court further says: "It may be truthfully said that for eight mortal years the plaintiffs failed to prosecute their action. There was a most notable absence of that 'conscience, good faith, and reasonable diligence,' which courts of equity always require." It is true that this case was reversed in 24 Colo. 72, 49 Pac. 139, by this court, but the soundness of the doctrines of law as announced in the Court of Appeals was not disputed. The court found that there were sufficient facts to excuse the delay of plaintiffs in that action, and the case was reversed, not because of any error in the law announced by Judge Bissell, but because it was found that the delay was occasioned by matters which rendered the plaintiff excusable. No excuse is offered in this case except, forsooth, that the defendant had not advised the plaintiff as to his actions.

Whatever may be said as to the moral obligation resting upon the defendant, there was still a legal obligation resting upon the plaintiff, whereby it was her duty to take some independent action for the purpose of supplying hersedf with such information as would lead her to a full knowledge of the facts. The plaintiff, knowing that she was a devisee under the will, and learning that the estates of Rice in Iowa and Illinois were insolvent, and knowing that defendant was engaged in the settlement of the estate in Colorado, and that the estate here was insolvent, had sufficient knowledge to put her upon her inquiry to determine or discover what had become of this property. The slighest effort would have led her to the true situation. It was only necessary for her to inquire of her aunt, under whose roof she was then sleeping, to learn all that she could have learned at the time of the commencement of this action. "No doctrine is so wholesome, when wisely administered, as that of laches. It prevents the resurrection of state titles, and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant that he make known his claims. It gives to the actual and larger possessor security, and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine received with favor, because its proper application works out justice and equity, and often bars the holder of a mere technical right, which he has abandoned for years." Naddo v. Bardon, 51 Fed. 493, 2 C. C. A. 335. "The term 'laches' in its broad legal sense, as interpreted by courts of equity, signifies such unreasonable delay in the assertion of and attempted securing of equitable rights as should constitute, in equity and good conscience, a bar to recovery. A learned judge has aptly and beautifully said that this power, as exercised by the courts of equity, is well symbolized by

the emblem of Time, 'who is depicted as carrying a scythe and an hourglass, that, while with one he cuts down the evidence which might protect innocence, with the other he metes out the period when innocence can no longer be assailed.' No specific limit of time can be fixed within which the doctrine may be successfully invoked in courts of equity. It is not essential that such time should have elapsed as to make the statute of limitations effective. * A delay which might have been of no consequence in an ordinary case may be amply sufficient to bar the title to relief, when the property is of a speculative character. * * If the property is of a speculative or precarious nature, it is the duty of a man complaining of fraud to put forward his complaint at the earliest possible time. He cannot be allowed to remain passive, prepared to affirm the transaction if the concern should prosper, or to repudiate it if that should prove to his advantage." Graff v. Town Co., 12 Colo. App. 106, 54 Pac. 854; Kerr on Fraud & Mistake, 306; Williams v. Rhodes, 81 Ill. 571. "The question ordinarily is whether, during the period of delay, such changes have taken place in the position of parties, relative to the subject-matter of the litigation, as to render it inequitable to permit the enforcement of rights, concerning which oherwise there might be no difficulty. If, while the injured party is unnecessarily inactive ** * * the other party, on the faith of an apparent situation, the reality of which he had no reason to doubt, has so changed his position that, if existing conditions were disturbed, he would suffer injury, the delay is chargeable as laches, and, in equity the consequence of the laches is the loss of the remedy." Du Bois v. Clark, 12 Colo. App. 220, 55 Pac. 750.

Measured by this rule, we find that defendant, relying upon his own good faith and beliving that this property was his own, expended his time, energy, and many thousands of dollars in the development of the section of country wherein the property was situate, with the purpose of making it valuable and his investment profitable. After he has succeeded in doing this and the plaintiff sat by silently for 13 years, during the progress of this development, she ought not now to be heard claiming that this money, labor, and eneregy were expended for her use and benefit. "The plaintiff has slept upon his alleged rights. His opponent has long been allowed to possess and enjoy the disputed property without complaint. The controversy has probably been settled. The evidence has been lost or obscured. The plaintiff has sought advantage by delay. His action is an experiment. There can be no justice or equity in his claim." Dunne v. Stotesbury, 16 Colo. 89, 26 Pac. 333.

In Manning v. San Jacinto Tin Co. (C. C.) 9 Fed. 737, it is said: "It must not be forgotten, not only that the world 'moves on,' but

that in this age and country and in this part of the country, it moves rapidly. Three years now, and especially in California, is longer, in events and progress, than 20 years some centuries ago, when the statutes of limitations were adopted in England. [The same is true in Colorado.] Parties cannot lie down to sleep upon their rights, and, on waking up many years after, find them in the same condition as that in which they were left. Even Rip Van Winkle, in a slower period and among a slower people, when aroused from his 20 years' slumbers in the recesses of the mountains, in the neighborhood of 'Sleepy Hollow,' found that the world had 'moved on.' 串串 If the open, known, notorious facts suggested in the bill, and apparent upon the records of the county, did not in fact put the complainant and his grantor upon inquiry, and lead them to a discovery of the frauds charged * they must indeed have been grossly neglective of their own interests." The above remarks are especially applicable to the case at bar. The 13 years between the time when the plaintiff should have commenced to receive her semiannual interest, and the beginning of this suit, were big with progress in the counties in which this property was located. The world moved on in that locality: the repudiation of the trust, if there was a trust, was sufficiently open and notorious to put this plaintiff on notice; and she could not indulge in a Rip Van Winklian Slumber during the 13 years and then expect to wake up and find matters in the same condition in which they were left. "The law of laches, like the principle of limitation of actions, was dictated by experience, and is founded in a salutary policy. The rule which gives it the effect prescribed is necessary to the peace, repose, and welfare of society. A departure from it would open an inlet to the evils intended to be excluded." Brown v. County of Buena Vista, 95 U. S. 157, 24 L. Ed. 422.

*

*

In the case of Young v. Cook, 30 Miss. 332, the court says: "It may be said, however, that Shotwell was, under the will, a trustee, and that the statute does not run in such a case. This is true in regard to express trusts, and this may be deemed to be of that character. But it is only true so long as the character of trust and cestui que trust exists. By the settlement made in March, 1845, both parties treated the trust as satisfied. The petition, however, says that the trustee divested himself of his character of trustee by fraudulent means. Admitting this to be true, the fraud, to avail the party, must have been such that he could not, by the use of reasonable diligence, have discovered it within the period prescribed by the statute. He could have made this discovery as well within one year after the commission of the fraud, by proper diligence, as in the time alleged in his petition." That is true in this case. Suppose that Woodruff was a trustee of an express trust when he made his final settlement with

the court in 1881 wherein he stated that the debts were still unpaid and there was nothing to satisfy specific legacies, and, of course, nothing for residuary legatees. He repudiated the trust. The plaintiff knew of the making of this report, or had the means of knowing it. Everything that she has learned since 1891 could as well have been learned many years previous to that time. Numerous cases have been decided by this court, where delay for a much less period than that fixed by the statute of limitations has been held to preclude the right of the party to bring the suit. In such cases, it is said, courts of equity act upon their own inherent doctrine of discour aging, for the peace of society, the prosecution of the suit; and no general rule can be laid down for the guide of the court in every case." Kerr on Fraud & Mistake (Bump's Ed.) 306; Williams v. Rhodes, 81 Ill. 571.

Conceding what is contended for by the counsel for plaintiff, that time does not run against an express trust, it must be borne in mind that this rule is subject to the qualification that when the trust is repudiated by clear and unequivocal words and acts of the trustee who claims to hold the trust property as his own, and such repudiation and claim are brought to the notice of the beneficiary in such a manner that he is called upon to assert his equitable rights, or he has sufficient information to put him upon his inquiry, time will begin to run from the date such repudiation and claim, or information which would have led to the discovery, came to the knowledge of the beneficiary. Again, it is said by another court: "It is true, as a general rule, that when the relation of trustee and cestui que trust is uniformly admitted to exist, and there is no assertion of adverse claim or ownership, lapse of time can constitute no bar to relief. But where the trust relation is repudiated, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties, or other circumstances give rise to presumptions unfavorable to its continuancein all such cases, a court of equity will refuse relief on the ground of the lapse of time and its inability to do complete justice." Nettles v. Nettles, 67 Ala. 599.

In Buckner and Stanton v. Calcote, 28 Miss. 599, it is said: "In the present case, there was a lapse of about 11 years, according to the statements of the bill, before any efforts were made to investigate the alleged frauds, when, from their nature as stated, they were open to detection all this period of time. It would be dangerous and mischievous in the extreme to sanction a rule that would, under such circumstances, permit transactions so long acquiesced in and involving immense interests, not only to the parties directly implicated, but in all reasonable probability to innocent persons whose rights are connected with, or dependent upon them, to be set aside and annulled without

the clearest equity shown by the complainant, and the absence of all laches."

In the case of Hammond v. Hopkins, 143 U. S. 244, 12 Sup. Ct. 427, 36 L. Ed. 134, it appears that the trustee purchased, as charged here, through an intermediator at his own sale, and that court, through the Chief Justice, said: "Each case must necessarily be governed by its own circumstances, since. though the lapse of a few years may be sufficient to defeat the action in one case, a longer period may be held requisite in another, dependent upon the situation of the parties, the extent of their knowledge or means of information, great changes in values, the want of probable grounds for the imputation of intentional fraud, the destruction of specific testimony, the absence of any reasonable impediment or hindrance to the assertion of the alleged rights, and the like." Marsh v. Whitmore, 21 Wall. 178, 22 L. Ed. 482; Lansdale v. Smith, 106 U. S. 391, 1 Sup. Ct. 350, 27 L. Ed. 219; Norris v. Haggin, 136 U. S. 386, 10 Sup. Ct. 942, 34 L. Ed. 424; Mackall v. Casilear, 137 U. S. 556, 11 Sup. Ct. 178, 34 L. Ed. 776; Hanner v. Moulton, 138 U. S. 486, 11 Sup. Ct. 408, 34 L. Ed. 1032.

It is claimed that because the plaintiff resided at a great distance from the scene of the transaction, she necessarily remained in ignorance of many of the facts which were open and notorious to the people residing in the vicinity. This will not avail her, because it has been determined that absence does not excuse laches. Absence of itself is no excuse. Travel and communication are easy. If she could not and did not care to go to the location of the property, she could easily have written and ascertained exactly what was being done with it, and with equal ease could have given notice of her claim. There cannot be one law of laches for the resident and another for the nonresident. Naddo v. Bardon, 51 Fed. 496, 2 C. C. A. 335. In the case of Broderick's Will, 21 Wall. 503, 22 L. Ed. 599 it is said: "They do not pretend that the facts of the fraud were shrouded in concealment, but their plea is that they lived in a remote and secluded region, far from means of information, and never heard of Broderick's death or of the sale of his property, or of any events connected with the sale of his estate, until many years after these events had transpired. Parties cannot thus, by their seclusion from the means of information, claim exemption from the laws that control human affairs, and set up a right to open up all the transactions of the past. The world must move on, and those who claim an interest in persons or things must be charged with knowledge of their status and condition and of the vicissitudes to which they are subject."

While it may be true that the defendant has dealt with this estate in a manner prohibited by law, upon which subject we express no opinion, yet, from the careful investigation which we have made of this re

cord, we cannot find that the plaintiff is in a position to complain. The authorities cited in this opinion are enough, and more than enough, to prohibit us from granting her relief.

The judgment of the lower court will therefore be reversed, and the cause remanded, with instructions to dismiss the bill at plaintiff's cost. Reversed.

GABBERT, C. J., and GODDARD, J.,

concur.

(11 Idaho, 789)

DOUGAL v. EBY et al.

(Supreme Court of Idaho. Feb. 7. 1906. On Rehearing, March 8, 1906.)

1. APPEAL-REVIEW-RECORD.

Affidavits and papers that are not shown to have been presented to the court or judge thereof at the hearing on a motion to dissolve an injunction and appear from the judge's certificate not to have been used or considered by him on such hearing, cannot be considered by this court on appeal from an order made granting or denying such motion.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3263.]

2. SAME-RULINGS ON EVIDENCE.

Where the trial court or judge thereof refuses to consider affidavits or other papers or evidence offered on the part of either plaintiff or defendant, exception to such ruling must be saved, and the rejected evidence must be incorporated in a bill of exceptions, or certified to by the judge as having been presented and rejected in order to be considered on appeal. 3. INJUNCTION-DISSOLUTION SURETIES ON BOND.

LIABILITY OF

Where a claim is made against the sureties on an injunction bond for costs. damages or counsel fees on breach of the bond, the sureties are entitled to their day in court and the right to defend against the demand, and it is error for the court or judge thereof to summarily enter judgment against the sureties on the dissolution of the injunction.

[Ed. Note. For cases in point, see vol. 27, Cent. Dig. Injunction, § 548.]

(Syllabus by the Court.)

Appeal from District Court, Bingham County; James M. Stevens, Judge.

Action by Albert C. Dougal against James S. Eby and others.

From an order dissolving a temporary injunction, and directing judgment for costs and damages against the sureties on the injunction bond, plaintiff and his sureties appealed. Affirmed as to the order dissolving the injunction, and reversed as to the order directing judgment against the sureties.

Charles A. Merriman, for appellants. J. Ed. Smith, for respondent.

AILSHIE, J. On the 1st of June, 1905, the plaintiff, who is appellant in this court, commenced an action against James S. Eby, as constable, and others, and on the filing of the complaint procured a temporary injunction against the defendants in any manner