text:
    H. R. HARTWELL et al., Appellants, v. MARIA PARKS.
    Division One,
    February 29, 1912.
    1. EVIDENCE: Relaxation of Rules: Burnt Records. From the very necessity of things the strict rules of evidence must he relaxed in support of ancient and dim transactions. When the records of land titles are in ashes, witnesses to wills dead, and the transactions in judgment ancient, the rules of evidence are relaxed and the law applies certain kindly and convenient presumptions based on common experience and observation.
    2. -: -: -: Presumptions. All things are presumed to he lawfully done, and duties to have been duly and rightly performed, by officers and private citizens, until proof to the contrary he made. And when the law required a thing to he done in a certain way, and the records that it makes the evidence of that ancient transaction are burned, and the witnesses are dead or their memory dimmed by time, the law will presume that that thing was done in the way the law required.

      3. -: -: -: -: Probate and Record of Will. Where by legislative enactment “Carleton’s Abstracts” were made evidence of land titles in Pemiscot county, the records having been burned, and those abstracts show this entry in connection with all the numerous tracts of land of Alexander Barnes except the one tract in suit: “Alexander Barnes to Agnes Barnes, conveying all lands in Pemiscot county; consideration, love and affection. Instrument, last will, dated September 10, 1869, filed July 8, 1871, recorded book D, page 9,” it will be presumed, in the absence of any further showing, that the will was both probated and recorded, since nearly forty years have elapsed, and the statute required the recording of a will by the clerk of the county court in a book kept for that purpose within thirty days after probate and that the original should be carefully kept in his office.
    4. -: -: -: -: -: No Entry Opposite Particular Tract in Suit. And where the plaintiffs are the brothers and sisters of said Alexander Barnes or their descendants and claim only as his heirs, it will not be held that the fact that no minute of the terms of the will appears in the abstract in connection with the particular tract in suit, is fatal to the title of the devisee Agnes or of her grantee.
    5. -: Will: Probate. The validity and consequent operative force of a will as a muniment of title to real estate hinge on its being probated in common and solemn form. The probate of a will is the crucial test of its validity to vest title in the devisee. Without such probate it is a mere writing, not a muniment of title.
    Appeal from Pemiscot Circuit Court. — Hon. H. G. Riley, Judge.
    Appiumed.

      McKay & Corbett and G. G. Shepard fo.r appellants.
    (1) There was not sufficient evidence before the trial court to show the instrument which witness Wells testified to witnessing as the will of Alexander Barnes, was the same instrument under which Agnes Barnes claimed said lands, and even though it was admitted to he the same instrument, there is neither proof nor fact sufficient to create a presumption that said will had been probated. Therefore it was ineffectual to pass title to Agnes Barnes. Neither was there sufficient evidence to show the instrument which the Car letón’s abstract purported to give as the will of Alexander Barnes was in fact executed by the said Barnes. By statute a will although duly executed is of no force and conveys no interest until duly probated. Smith v. Estes, 72 Mo. 310'; Snuffer v. Howerton, 124 Mo. 637; Rodney v. McLaughlin, 97 Mo. 427. Neither is the fact that the will was recorded in the recorder’s office even a presumption that the will had been probated. Fenderson v. Tie Co., 104 Mo. App. 290. (2) The entries in Car letón’s abstract pertaining to said will offered in evidence by the defendant were inadmissible for any purpose and should not have been received by the court. Said entries did not even purport to be a copy of said instrument or an abstract thereof. The entries are the mere conclusions of the party compiling the abstract, and are not even a copy of the smallest part of the instrument claimed to have been abstracted. (3) The abstract to the land in question does not show any will by Alexander Barnes at all, and in order to show a will which affected the land in question defendant offered and the court received entries of said abstract of other sections of land showing what said abstract recited was a will from Alexander Barnes to Agnes Barnes, of all land in Pemiscot county. This testimony was hearsay as to the land in question and should not have been admitted. (4) The judgment must be reversed because of the failure to have said will probated. C. P. Wells, one of the witnesses signing said will at the time it was executed by Alexander Barnes, testified that he had been a constant resident of Pemiscot county since 1868, that he witnessed a will for Alexander Barnes, and had never seen it since that time, and when asked the direct question of his appearing in the probate court as a witness when said will was probated, answered he did nothing of the hind. This we think is almost conclusive evidence that said will was never probated, and when taken in connection with the fact that what purports to be the records in the case, Carleton’s Abstract, are perfectly silent on the question, this proof is conclusive that the will was not probated.

      Arthur L. Oliver for respondent.
    (1) The thirty-one year Statute of Limitations is a complete bar to a recovery in this case by appellants. Silvers on Exam, of Mo. Tit., p. 394; Collins v. Pease, 146 Mo. 135; Campbell v. Greer, 209 Mo. 199; Fairbanks v. Long, 91 Mo. 628; McVey v. Carr, 159 Mo. 648.; Plaster v. Gabnell, 160' Mo. 669; Campbell v. Greer, 209 Mo. 199; Hubbard v. Slavens, 218 Mo. 615. (2) It is unnecessary to plead the thirty-one year Statute of limitations. Collins v. Pease, 146 Mo. 139; Campbell v. Gas light Co., 84 Mo. 352; Franklin v. Cunningham, 187 Mo. 184; Fairbanks v. Long, 91 Mo. 628; Stacker v. Green, 94 Mo. 280; Bud v. Sellers, 113 Mo. 580; Coleman v. Drane, 116 Mo. 387. (3) Respondent showed a legal and sufficient paper title. Respondent showed by Carleton’s Abstracts that on September 10, 1869, a last will was executed by Alexander Barnes conveying all his land in Pemiscot county to his wife, and that such.will was duly filed July 8,1871, and recorded in the county clerk’s office of Pemiscot county. It is apparent from the entries of Car letón’s Abstracts that this will was duly recorded. By section 25, R. S. 1865, it was provided that all wills conveying said estate shall be recorded by the county clerk within thirty days after probate, which implies that a will under that section of the statute was not entitled to record and could not be recorded until after it was probated. Thirty-six years elapsed after the filing of this will before the institution of this suit. The instrument being now lost and the records thereof burned, it should be presumed that it was properly proved and probated, especially in view of the entries of Carieton’s Abstracts shown in evidence. Unless this presumption be indulged, the county clerk violated his duty in recording the will before it was probated, while the presumption is that he did his duty, thus affording another reason for the presumption that the will was duly probated. Eothwell v. Jamison, 147 Mo, 611; Creasy v. Alderson, 43 Mo. 20; Seward v. Didier, 16 Neb. 58; Coombs v. Lane, 4 Oh. St. 112; Ward v. Barrows, 2 Oh. St. 241.
   LAMM, J.

Suit brought in Pemiscot Circuit Court in 1907 under old section 650 (now sec. 2535, E. S. 1909) to determine title to the northeast quarter of section 36, township 20, range 12, Pemiscot county. Prom a decree for defendant, plaintiffs come up.

The common source of title, Alexander Barnes," died in 1869, a resident of Pemiscot, leaving Agnes his widow and no children, and seized in fee of many parcels of land situate here and there in that county— among them, that in dispute. Some of plaintiffs are the half-brothers and half-sisters of Alexander, others are the descendants of those dead. Defendant holds, if at all, under the will of John C. Parks, deceased, duly probated. Agnes, relict of Alexander, intermarried with one Cropper. John C. Parks held under a conveyance executed in 1902 by Agnes (now dead) and her said second spouse, and duly spread of record. Agnes, in turn, held an estate (that has fallen in) as common law dowress, or as owner in fee under the will of her first spouse.

The issue here is sharp and single. If Alexander died testate and his will devised the land to his widow, as asserted by defendant, then defendant’s title is good by devises and mesne conveyances. Contra, if he died intestate as to this land, or if his will did not operate to devise it to her, then, subject to her dower, the title by descent cast vested, eo instante, on Alexander’s death, in his half-brothers and half-sisters and (Agnes’s dower having lapsed) now rests in them and the descendants of those dead, to-wit, plaintiffs. In that view of it, they hold a good title unless the thirty-year Statute of Limitation bars action and vests title in defendant, or unless there is laches in the way.

The petition alleges and the answer denies that the land is wild and uncultivated timber land, not in the possession of any one. The proof shows that it is fenced, partly cleared and cultivated, and has been in .defendant’s possession since the death of her husband in 1905. Prior to that it had been in possession of her husband since the date of his deed in 1902.

The petition alleges plaintiffs have a fee simple title and that defendant makes a claim (adverse and prejudicial to them) of some right, title, estate, or interest, the nature and character of which is unknown to plaintiffs. By answer defendant admits such adverse claim, alleges she is the owner in fee, denies plaintiffs’ ownership and avers that for “many years” by and through her tenants and grantors she is and has been in actual possession. The proof tends to show that Agnes at the time of her husband’s death and until she conveyed, claimed to own the land, that most of plaintiffs lived for a generation or so near the land, that plaintiffs knew of her claim of ownership and assertion of title under her husband’s will from the outset and never asserted any title or claim until a few months before the 3d day of October, 1907, when they had an abstract of title made (which, they claim, disclosed their ownership) and thereupon on said date brought this suit; that the title emanated from the general government in 1850, that the land was swamp land, that it was patented by Pemiscot county to Alexander Barnes in 1858, that during his lifetime he paid the taxes thereon, that since his death his widow and after her those claiming under her paid the taxes to this time, that plaintiffs paid no taxes and were never in possession, and that at a certain unnamed time those records of Pemiscot county that did not go up in smoke and flame were reduced to ashes.

It is agreed that a certain set of abstract books known as “Carleton’s Abstracts” became by legislative enactment and orders of the circuit and county court evidence of land titles in that county.

The proof also shows, as said, that Alexander Barnes owned a great many scattered tracts of land in Pemiscot, that Carleton’s Abstracts show the following entry anent the will of Alexander, to-wit: “Alexander Barnes to Agnes Barnes, conveying all lands in Pemiscot county, headed consideration, love and affection. Instrument, last will, dated September 10, 1869, filed July 8-, 1871 recorded book D page 9.” That entry appears on those abstract books opposite every other tract of land of which Barnes died seized, but not opposite the tract in question.

Defendant to further sustain the issues on her side put in parol testimony from an old citizen, Mr. Wells, a witness to the will of Alexander Barnes. It is shown thereby that Carleton wrote the will, and that it was signed by Carleton, Key ser and Wells as witnesses. Mr. Wells remembered that the will left all of testa tor’s real estate, “his entire holding,” to Agnes his wife, that testator left a small sum to “his preacher” who lived in New Orleans, say, twenty-five dollars, and his land he willed to his wife. Mr. Wells did not remember appearing at the probating of the will.

On such record, the questions are: •

First. Is the absence of the entry showing the recording of a will, with a minute of its terms, opposite or in connection with the land in question, on Carleton’s Abstracts, fatal to defendant’s title?

Second. The entry being silent about a probate of Alexander’s will, is that silence a fatal flaw in defendant’s title?

Third. The title having emanated from the Government in 1850' and Alexander having become patentee in-1858, and he and his widow and her grantees having paid all taxes since' 1858, and the present defendant being in actual possession for more than one year before the institution of this suit, and plaintiffs having paid no taxes for over thirty years and never having been in possession — on such premises, we say, does the thirty-year Statute of Limitation run in favor of defendant? (And herein of the question: Is it necessary to plead the thirty-year Statute of Limitation in a suit under old section 650?)

Fourth. In any event, is there ladies precluding recovery on the part of plaintiffs? (And herein of the question: Is laches a defense that must be pleaded to be effective?)

It is obvious that if the first two asking .propositions be ruled in favor of defendant, plaintiffs’ case breaks at that point, the land is hers and the judgment stands for affirmance. In that view of it, the last two will not be reached. We are of opinion they should be so ruled and that the trial court solved its problem in good form and according to rule. This, because:

(a) What we have to say on the concrete case may appropriately follow some general pertinent and controlling propositions. Thus: From the very necessity of things the strict rules of evidence must be relaxed in support of ancient and dim transactions. “There is a time when the rules of evidence must be relaxed. We-cannot summon ■ witnesses from the grave, rake memory from its ashes, or give freshness and vigor to the dull and torpid brain.” [per Ag-new, J., in Richards v. Elwell, 48 Pa. St. l. c. 367.] Experience, says the wise Latin, is mistress of things (Magistra rerum experientia.) We learn from the school of that mistress that when records of land titles are in ashes, witnesses to wills dead, scattered to the four winds of their memories are dull and dim with age and the transactions in judgment are ancient, the affairs of mankind would fall into an inextricable confusion leading to dismay and evil if the rules of evidence were not relaxed and if the law did not delight in applying certain kindly and convenient presumptions based on common experience and observation. IJnder such circumstances as said by Chief Justice Fuller, in Hammond v. Hopkins, 143 U. S. l. c. 274, “the hour glass must supply the ravages of the scythe. ’ ’ One of the precepts of the law is: What ought to be done is easily presumed. Another is: Presumptions arise from what generally happens'. [Post v. Pearsall, 22 Wend. l. c. 475, et seq.] We may borrow a little with profit from that case, viz.:

“The presumption of a fact is the conclusion drawn in the silence of all positive proof, from such existing circumstances as common experience shows ordinarily to accompany or follow the fact presumed. One of the greatest of modern civilians has condensed the whole philosophy of presumptive evidence into a definition of six words: ‘ Preswnptio, ex eo quod plerumque fit.’ Giojas as quoted by Pothier. Every well grounded presumption, then, is but an inference of the understanding from the common observation of life and the usual motives and conduct of mankind. . . . And again (quoting from Chancellor Erskinu in Hillary v. Waller, 12 Ves. 265): ‘Mankind, from the infirmity and necessity of their situation, must, for the preservation of their property and rights, have recourse to some general principle to take the place of individual and specific belief, which can hold only as to matters within our own time; upon which a conclusion can be formed from particular and individual knowledge.’ ”

Again: Experience teaches us that things are generally rightly done. That to do things wrongly is the exception, not the rule. Therefrom certain convenient and lenient legal presumptions arise and are universally indulged by courts when called for in administering' justice, to-wit: All things are presumed to be lawfully done, until proof be made to the contrary. [2 Co. Litt. (1 Am. Ed.), 232b.] All things are presumed to. have been rightly and duly performed until it is proved to the contrary. [Co. Lift. 232, Ibid.] Agreeably to those presumptions run the trite ones that innocence is presumed, that due care is presumed, that negligence is not presumed, and many more of the family of friendly inferences. Says Sergeant, J., in Foulk v. Brown, 2 Watts, 215: “The rule of-presumption, when traced to its foundation,- is a rule of -convenience and policy, the result of a necessary regard to the peace and security of society.” [Quoted with approval by this, court in Williams v. Mitchell, 112 Mo. l. c. 313.]

So, “The subject of the favorable presumptions which-are indulged in behalf of- persons acting in an official capacity, especially after a long lapse of time has intervened, has been quite extensively discussed in Long v. Joplin M. & S. Co., 68 Mo. 422. In similar circumstances ■ the like lenient presumptions are indulged in favor of persons who occupy no official station. Every one is presumed to govern himself by the rules of right reason, and consequently that he acquits himself of his engagements and his duty. [1 Phil. Ev., Oowen & Hill’s notes, pp. 604-605, sec. 10.] ” [Per Sherwood, J., in Lenox v. Harrison, 88 Mo. l. c. 496.]

Again: When things are done which are concomitant with other things, and which could not be rightfully done unless those other things which usually precede them, or which must legally precede them, are also done, then when the case requires it the law supplies the presumption that such antecedent things were also done (Chlanda v. Transit Co., 213 Mo. l. c. 260, et seq. and authorities and cases cited) — the maxim being: “Extremes being proved the medium things are presumed” (Probatis extremis, praesumuntur media) .

The foregoing maxims, precepts and presumptions are applied in innumerable cases to work out justice. And as no general rule applying them can be given, examples will best show the trend of the judicial mind in that behalf, viz.: ' ’

In State ex rel. v. Kupferle, it was ruled that where the directors of a private corporation were acting as such in fact, it will be presumed they were really elected until the contrary be shown. [44 Mo. l. c. 158.]

In Long v. Smelting Company where the question was over the delivery of an administrator’s deed it was ruled that where the purchase money was shown to be paid the presumption was that the deed was delivered —delivery being a usual concomitant in the ordinary course of business. [68 Mo. l. c. 430 et seg.]

In Wooldridge v. Quinn it was claimed the judgment entered was not the judgment rendered by the court. On proof that the clerk’s minutes supported the judgment it was ruled that presumptively the judgment was right. [70 Mo. l. c. 371-2.]

In American Insurance Company v. Smith, where the question was whether a note was void because the plaintiff company had no right to do business in the State, it was ruled that the possession of the note by plaintiff company was presumptive evidence that it had complied with our laws relating to admission to . the State to do an insurance business — in other words.its transaction of business was presumed to be lawful.' and not unlawful. [73- Mo. l. c. 370.]

In Fitzgerald v. Barker it was ruled that the possession of a note payable to another was sufficient to raise a presumption of a proper transfer to plaintiff. [85 Mo. l. c. 20-1.]

In Bush v. White it was ruled that the narration ■ of an officer in a deed that the sale was made at the courthouse raises a presumption that the sale was conducted at the lawful and customary place for execution sales, to-wit, at the courthouse door. [Ibid. l. c. 357.]

In Breckenridge v. Insurance Company, where the question was whether the assignment of a policy of insurance had been communicated by a regular agent to the company, it was ruled that presumptively it was communicated and was approved by the company, this being the orderly and usual course of business. [87 Mo. l. c. 71.]

In Hammond v. Gordon it was ruled that the court would presume that the officer taking an acknowledgment of a deed stamped his seal thereon. [93 Mo. l. c. 225.]

In McCoy v. Cassidy it was ruled that where the record copy of a sheriff: ’s deed did not show a seal, the presumption would be indulged that the original was sealed where the copy so stated. [96 Mo. 429.]

In Blodgett v. Perry, in aid of a sheriff’s deed it was ruled that it would be presumed that the clerk who issued and the sheriff who sold under the execution, obeyed the dictates of duty and complied with the law. [97 Mo. l. c. 271-2.]

In Williams v. Mitchell, 112 Mo. 300, it was held that the payment of a note for the purchase money of land and 'the delivery of a deed for the land might be presumed from facts stated.

In State ex rel. v. Ross, 118 Mo. l. c. 63, it was ruled that the filing of a provisional order appointing a receiver presupposes the filing of a petition prior to that order and that a presumption arises such petition was filed first.

In Chouteau v. Railroad, 122 Mo. l. c. 384, it was ruled that where the charter of a railroad company did not authorize it to receive a conveyance of land except for railroad purposes, it would be presumed that a given conveyance was received for such purposes.

In Ivy v. Tancey, 129 Mo. l. c. 509, it was ruled that the making of a trust, deed on land presupposed a prior deed to grantor by which she acquired title.

In Roe v. Bank, 167 Mo. l. c. 424, where bank books showed a loan was made the presumption was indulged that the nature, character and the essential features of the loan were known to the bank and were approved by it in all points and particulars.

Such examples, showing the application of presumptions arising from the course of ordinary business, in. the absence of countervailing testimony, might be indefinitely extended, and we close with two more, closer to the point.

In Creasy v. Alverson, 43 Mo. l. c. 19-20, in the case of a domestic will, it was held that the record of the will which had upon it the proof of its execution, presupposed its proper admission to probate — a probate being necessary to entitle the will to record.

In Rothwell v. Jamison, 147 Mo. 601, the Creasy casé was cited with approval and it was ruled that the recording of a will, with the evidence taken when the will was exhibited for proof, created a presumption that there had been an order confirming the probate of the will when a long time had elapsed, because otherwise the recording of the will was in violation of the law. That is, the action of the recording officer would be presumed proper, absent countervailing proof.

(b) We come now to apply the maxims, precepts and presumptions, together with the principles to be educed from the cases cited in their broad philosophy, to the case at bar. At the time of the death, of Alexander Barnes the statute required the recording of a will by the clerk of the county court in a book kept for that purpose, “within thirty days after probate,” and that the original should be carefully filed in his office. Where lands were situate in different counties a copy of a will devising the same was required to be recorded in the recorder’s office of each county, “within six months after probate.” [R. S. 1865, secs. 25 and 28, p. 530.]

The validity and consequent operative force of a will as a muniment of title to real estate, hinges on its probate in common or solemn form. A probate of a will is the crucial test, experimenhm crucis, of its vitality and validity in vesting title to real estate in a devisee. Without such probate there is a writing, a mere scroll, but no will. Accordingly the statute contemplates a probate of a will as a condition precedent to its record — the theory being no probate, no will; no probate, no record. The will of Alexander Barnes, as shown by Carleton’s Abstracts, was recorded nearly ■forty years gone. It was not entitled to such record without a probate and an officer who recorded it without a probate would have violated his statutory duty. At the times in hand wills were probated in county courts and the very clerk whose duty it was to record the will after probating, was clerk of that court and had custody of its records. His duty was to inform himself of the fact of probate and not to record the will without one. The presumption is he did his duty.

The premises in mind, in aid of this ancient document on which the parties have rested with tranquility and security for more than the average life of a man, we think the presumptions and doctrines considered in paragraph “a” of this opinion may be invoked. We rule, then, that the presumption is that the will was probated — that its very record presupposes a probate.

If probated, as we shall presume, then its terms are to be reckoned with. Those terms are that it willed all testator’s lands in Pemiscot county to Agnes Barnes. Given that Barnes owned the land in dispute, as here, that will devised it to his widow, and we so hold.

We are cited to Penderson v. Timber Co., 104 Mo. App. l. c. 296-7, as holding a contrary doctrine. The will dealt with, there was a Pennsylvania will. It was recorded here with no certificate of probate and it was held inadmissible as a mnniment of title, absent proof of probate. It was held that its mere record here was no evidence it had been proved and probated in Pennsylvania in accordance with onr laws as onr statutes require. The Penderson case is not our case.

(c) Something is made of the fact that a minute of the terms of the will do not appear on the abstract books in connection with the tract. We do not consider that omission fatal. If these plaintiffs were purchasers for value without having knowledge or information of the existence of a will, and if they had bought the land from an apparent owner relying on the history of the title of the specific tract as it appears on Carleton’s Abstract books, we might have a different case here. But it substantially appearing from the entries on those abstract books that the will covered all the land of Barnes, it should therefore have been noted in connection with the tract in dispute. That it was not is a mere oversight. It injured no one. That mistake did not leave the title in plaintiffs. If the will had been noted on those abstract books disconnected from any specific tract, would it not take the place of a record of the will as a muniment of title? That would be precisely the situation if the record had not been burned, and it had been read into the case. The point is without substance.

The views expressed settle the case without determining the two last propositions argued by counsel. Accordingly they are reserved.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    MARY E. LESLIE v. S. E. CARTER and CHARLES A. BYRD, Appellants.
    Division One,
    February 29, 1912.
    1. FRAUD: Confidential Relation: Concealment: Setting Aside Deed. Plaintiff was one of five heirs to 538 acres of farming and mining lands, which had been leased on a royalty basis for fifteen years, with no large returns. Her mother had died, and she had gone when a mere girl to Washington to live with a sister, there had married and gone with her husband to Alaska and lived there, and her brother, the defendant, looked after her interests in the land, collecting the rents and royalties, and she trusted everything to him, for whom her letters show she entertained strong affection. In all his letters to her he wrote discouragingly of the prospect of selling the property, and in one offered her $5000 for her interest, saying he was not writing to discourage her but wished he “could write something more favorable.” At that time he had recently bought the interest of another brother for $10,760 and that of the widow and minor son of a deceased brother for the same, and stated in the "letter that he had bought the interest of her sister in Washington for $3500. His own evidence showed that the property at that time was worth from $100 to $150 an acre, and at the lowest of those estimates her fifth interest was worth $10,760. Held, that there was concealment, and an abuse of a confidential relation, and the deed by which she conveyed her interest to him for $5000 should be set aside for fraud.
    2. -: -: -: -: Innocent Purchaser: Son-in-Law. A father has a right to be generous with the husband of his daughter, but when they are both called into court to answer a charge of fraud by the father against his sister in purchasing her fifth interest in land, and the son-in-law comes in the role of innocent purchaser for value from the father, he is not entitled to credit for so much of the value he claims to have expended as came to him through the generosity of the father out of the property acquired through the fraud of the father. And the evidence showing that the brother acquired his sister’s fifth interest in the property through fraud, and that the brother thereafter conveyed three-fifths of the property to his son-in-law, who paid for it only by a note which in fact was never paid out of his own money, and that all he ever paid on the property was money obtained by, a mortgage on the three-fifths interest, with which he bought the two remaining fifth interests, the said grantee will not be held to be an innocent purchaser for value.

      3. -: -: --: Laches: Delay. Laches is an equitable defense, and is sometimes allowéd when the period of limitation prescribed by the statute has not elapsed; but it is never allowed unless the delay has produced such a change in conditions that the defendant is put at a disadvantage, and not always then. Where the delay has worked no injury to the defendants, and they are as well equipped to make their defense at the trial as they would have been at any previous time, the defense of laches will not be allowed.
    4. --: -: -: -: -: Restitution: Mining Leases. It is no answer to a charge of obtaining a deed to land by fraud that the defendants have made such a disposition of the property that it would embarrass them to be required to make restitution. The fact that the fraudulent grantee has conveyed it to a son-in-law who is not an innocent purchaser for value, and that they have made mining leases on it, does not affect the merits of the case. The interests of the lessees is not an issue in such suit, nor is the validity of the leases, nor is the defrauded grantor responsible for any controversies in which those leases may involve the defendants.
    5. -: -: -: —:-: -: Allaying Suspicion. Where the conduct of the fraudulent grantee after the conveyance was made was such as to allay the suspicions of the defrauded grantor, she is not chargeable with laches in bringing the suit, if she brings it shortly after her suspicions are aroused by information of the facts.
    6. -: Setting Aside Deed: Accounting: Services of Grantee in Obtaining Leases. Where the increase in the value of the property after defendants had fraudulently obtained the deed from plaintiff was due to the developments of the .minerals through the operation of the mines on the land by lessees, the services of the grantee for his activity in obtaining the leases should not be taken into consideration in the accounting, since an estimate of the value of such services would be mere conjecture, and defendant was in possession through his own wrong.
    7. -: -: -: Bonus on Lease. Where the grantee has obtained a judgment against a bank for a bonus on a lease of the lands embraced in the fraudulent deed, the plaintiff grantor, in the accounting, is entitled to her proportionate share of that judgment when collected, less attorney’s fees and costs.
    8. -: -: -: interest on Money Paid: Royalties. The grantee is entitled to six per cent simple interest on the money paid by him to the grantor for the fraudulent deed from the date it is paid to the date the grantor files her petition to have the deed set aside for fraud in which she tenders back the money received. But if in the meantime the property has been leased she is entitled to have deducted from the amount of her payment the money that the grantee has received in the way of royalties on ores mined from the property.
    Appeal from Jasper Circuit Court. — Hon. Hugh Dabbs, Judge.
    Reversed and remanded (with directions).

      George Hubbert and Frank L. Forlow for appellants.
    (1) The plaintiff’s laches, and especially with her warning and information from others adverse.to defendant’s good faith towards her, for at least two years, according to her oym testimony, about .a matter so open to inquiry; and her express acquiescence in the conveyance, as shown by her conduct and letters, from time to time, for nearly two and one-half years before suit, constitute an effectual bar against her as to any remedy, under the well established rules of equity. Kerr on Frauds and Mistake, 299, 305; Klive v. Yogel, 90 Mo. 247; State ex rel. v. West, 68 Mo. 229; Dexter v.- McDonald, 196 Mo. 399. The effort to excuse the plaintiff’s laches by alleged fraud and continuing confidence cannot avail. But it shows plaintiff’s conscious need of some excuse. Callan v. Callan, 175 Mo. 346; Jones v. Rush, 156 Mo. 373; Newman 'v. Oberle, 90 Mo. 666; Powell v. Adams, 98 Mo. 598. (2) The evidence does not show any material fraudulent misrepresentation of fact by defendant Carter, believed, relied and acted on, by plaintiff, to her injury, under circumstances excusing her from exercising her own judgment with reasonable prudence; without which she can have no standing in-equity, nor claim for the relief sought by her. Hitchcock v. Baughman, 36 Mo. App. 222; Lewis v. Land Co., 124 Mo. 672; Nations v. Pulse, 175 Mo. 86; 18 Ency. PL and Pr., 853; Lumber Co. v. Crommer, 202 Mo.. 521; Wood v. Evans, 43» Mo. App. 230; Parker v. Marquis, 64 Mo. 38; Estes v. Desnoyers, 155 Mo. 587; Smith v. Dye, 88 Mo. 581. (3) Without proof of a relation of trust and confidence in fact, by which the will of plaintiff was subjected to the domination of defendant Carter; and also that he deceitfully availed himself of the relation and exercised an undue influence upon her mind; also that he thereby induced her to sell to him to -her damage, when she would not have done so otherwise — without each and all of these things being proved, the plaintiff should not have prevailed below; and yet such proof. was not made. Peckham v. La] one, 164 U. S. 255; Studebaker v. Cofeld, 159 Mo. 612; 2 Beach on Contracts,sec. 1391; Dickson v. Kempinsky, 96 Mo. 252; Cutts v. Young, 147 Mo. 587. (4) The lugging into this case of alleged frauds against Laura Miller and William Carter and George Carter, must fail of the purpose designed. The George Carter case has been submitted and is under the consideration of this court: The Laura Miller case has been amicably settled. The' William Carter case is pending in this court on appeal by him and not hy defendants. Each case must stand upon its own merits. Collateral transactions with strangers to the case on trial are so clearly irrele-vant that they should never have been offered, and-cannot be considered. Jones on Evidence (2 Ed.),' sec. 140; Edwards v. Warner, 35 Conn. 517; Williams v. Robbins, 15 Gray 590. Equity is always conditioned that defendant’s rights are to be conserved and protected; and one of the means of so doing is to require restoration of the status quo or its equivalent,failure to do which will preclude cancellation of the instrument in which the rights of all parties are tied up; for even an old wrong cannot, in the contemplation of equity, be righted by a new one. Pom. Eq. Juris., sec. 915; 18 Am. and Eng. Ency. Law, 858-60; Bradshaw v. Yates, 67 Mo. 221; McClure v. Lewis, 72 Mo. 323. (5) Compensation should at least have been allowed Byrd, proportionately for his expenditure of time, labor and money, and the improvement of the premises, by which their value and products were enhanced to the benefit of all owners; for owners in common may improve with the full assurance of being protected in so doing, to the extent of a contribution by each owner of his fair proportion of the enhanced value so added to the premises and products. Andrews v. Connoly, 145 Fed. 43; Freeman on Cotenancy, sec. 510; Hall v. Piddock, 21 N. J. Eq. 314; Coberly v. Coberly, 189 Mo. 1; Broyles v. Waddel, 58 Tenn. 32. (6) Byrd should have had six per centum annual interest, for the use of the $5000 for the time she had it, if he stand decreed to account for the rents, issues and profits of the land for that time. No less could make him whole under her tender of equities by her petition. Smith v. Townsend, 92 Am. Dec. (Md.j 637; McClure v. Lewis, 72 Mo. 314; Thornton v. Ogden (N. J. Eq.), 7 Atl. 619; Andrews v. Connoly, 145 Fed. 43. (7) The change of the conditions of the property, the acquirement by strangers of rights therein, the development of mines unopened before, all during the time passing after the making of the deed and the acquisition of the mining and speculative property by Byrd and others through him from Carter — these things are substantial objections in equity to the attempt to administer justice so long after the fact, upon charges of deceit therein. Spurlock v. Burnett, 170 Mo. 372; Phillips v. Hardeberg, 181 Mo. 46; 18 Am. and Eng. Ency. Law 102, 103; Hatcher’s Case, 139 Mo. 614; Bliss v. Pritchard, 67 Mo. 181.

      W. M. Robinson and Thomas <& Hackney for respondents.
    (1) The defendant Carter having been the trusted agent of his sister in the management of her one-fifth interest in tlie property in controversy ever since the death of her brother, A. G. Carter, in 1903, having in charge her interest in said property, collecting her rents and royalties and paying the taxes, and being her agent for the sale of the property, he is not permitted to enter into any transaction with her on his own behalf respecting the snbject-matter of the agency unless he acts with entire good faith and without any undue influence or imposition and makes a full disclosure of all of the facts and circumstances attending the transaction. 31 Ency. PI. and Pr., 1442; 2 Pom.Eq. Jur. (2 Ed.), sec. 955-956; Kerr on Fraud and Mistake, 173»; Bartholomew v. Leach, 7 Watts (Pa.), 472; Colbert v. Shepherd, 89 Va. 401; 1 Am. and Eng. Ency. Law (2 Ed.), 1071; Ralston v. Turpin, 129 TJ. S. 675; 1 Story’s Eq. Jur., par. 315; Harris v. Tremenhere, 15 Yes- 34; Wadsworth v. Adams, 138 U. S. 380; Gay v. Gillian, 92 Mo. 250; Dausman v. Rankin, 189 Mo. 703; Ross v. Payson, 43 N. E. 399; Hall v. Knappenberger, 97 Mo. 509; Reed v. Carroll, 82 Mo. App. 108. (2) The deed from the plaintiff to defendant Carter was obtained by him by fraudulent concealment of the conditions of the property, and its value, and by undue influence exerted over the plaintiff. Reed v. Carroll, 82 Mo. 108; Morley v. Harrah, 167 Mo. 74; Derby v. Donehoo, 208 Mo. 699; Evans v. Evans, 196 Mo. 19; Elmore v. Johnson, 153 111. 513; Hailwood v. Mansfield, 59 111. 496; Laclede Bank v. Keeler, 109 111. 385. (3) The evidence clearly shows that defendant Byrd was not an innocent purchaser and that whatever conveyances were made to him he received the same to hold for his codefendant. A purchaser on credit is not an innocent purchaser. And the fact that the pretended purchaser may have given the vendor his note therefor, does not render him an innocent purchaser, unless the note has been paid before notice or unless it has been negotiated and is in the hands of an innocent holder. Arnholt v. Hartwig, 73 Mo. 484; Young v. Keeler, 94 Mo. 590; Cheek v. Waldron, 39 Mo. App. 25; Wetmore v. Woods, 62 Mo. App. 265. The law charged Byrd with notice that a deed procured by Carter while the agent of his sister for the sale of the property for less than its value was a fraud on the plaintiff and he was put on inquiry, even if he had paid a full consideration, as to her rights in the property. Plow Co. v. Sullivan, 158 Mo. 440; Bank v. Tobacco Co., 155 Mo. 602; Eck v. Hatcher, 58 Mo. 235; Leavitt v. LaPorce, 71 Mo. 356. (4) Plaintiff was guilty of no laches in the bringing of her suit. She was not called on to take action until she had notice of the wrong committed against her. Real Est. Co. v. Lindell, 142 Mo. 61; Howell v. Jump, 140 Mo. 440; Napton v. Leaton, 71 Mo. 358; Davis v. Forman, 229 Mo. 27; 2 Pomeroy’s Eq. Jur., 917. Relationship of the parties is entitled to great weight when the question is one of laches. Wright v. Wright, 37 Mich. 56; Case v. Case, 26 Mich. 483; Van Buskirk v. Van Bus-kirk, 148 111. 9. There is no evidence of' any acquiescence o'f the plaintiff and no delay of hers induced the defendants or either of them to change their position. Newman v. Newman, 152 Mo. 515; 12 Am. and Eng. Ency. Law (2 Ed.), 544; Ross v. Payson, 43 N. E. 399; Walther v. Null, 233 Mo. 123.
   VALLIANT, J.

This is a suit in equity to annul a deed made by plaintiff conveying her one-fifth interest in 538 acres of land in Jasper county to defendant Carter, on the ground that it was obtained by fraud, pnd to annul also a deed from Carter conveying the same interest to defendant Byrd, on the ground that it was without consideration and made to further the fraudulent purpose by which defendant Carter obtained the deed from plaintiff. Plaintiff tenders back the purchase money paid her by Carter and prays an account of rents and profits. Defendant Carter’s answer was a general denial; defendant Byrd’s answer was a general denial, and a statement of facts going to show that he was an innocent purchaser for value, and that plaintiff was guilty of laches. The finding and judgment were for the plaintiff on all the issues, and the defendants appealed.

The 538 acres of land were owned by Washington G. Carter, who died in 1874, leaving his widow and six children his heirs, four sons, George, S. E., A. G., and William, and two daughters, Mary, the plaintiff, and Laura; George died sometime in the eighties, never married; the widow died in 1887; the five surviving children, three sons and two daughters, thus inherited the land. The plaintiff was four years old when her father died; she lived with her mother and the family of children on the farm until after the mother’s death. In 1890 plaintiff went to live with her married sister, Laura Miller, in the then Territory, now State of Washington, where she lived for a few years and was married and went with her husband, William M. Leslie, to Alaska, where she has ever since resided and where she was residing-when the transactions complained of in her petition occurred. After the plaintiff left Missouri, and went to Washington and thence to Alaska, her brother A. G. Carter, until his death, which occurred in 1903, acted as her agent, collected her share of the rents • and sent the same to her; after his death the-defendant Carter performed that office for her. The land lies in the lead and zinc mining district of Jasper county; there had been some mills and mining on this land during the above period, but the mining had not been a success; still there were prospects and the market value of the land fluctuated as those prospects brightened or faded. November 15, 1905, defendant Carter wrote the plaintiff offering her $5000 for her one-fifth interest in the land; the contents of the letter will be more particularly referred to again herein. December 9, 1905, plaintiff wrote a letter of that date accepting the offer and sending a deed as he had requested to a bank in Webb City to be delivered to him; the contents of that letter will also be referred to again. That is the deed which plaintiff seeks to annul in this suit. Plaintiff avers and Carter denies that he was her confidential agent, in whom she placed implicit trust; she avers and he denies that he deceived her as to the conditions existing in regard to the mining status and the mining-prospects which influenced the value of the land, that the interest which she was thus induced to part with for $5000 was worth at least $50,000. As already said after the death of A. Gh Carter the defendant S. E. Carter looked after the plaintiff’s interests, collected her rents and sent them to her. Further bearing on the issue of the confidential relation the testimony for plaintiff was to the following effect:

After the plaintiff left the home in which she had been reared, and went to Washington and thence to Alaska, she had been absent from the State, except a short visit in 1895, for fifteen years, and during that time she knew nothing of the property or its condition except through letters from her two brothers, A. Gr. Carter while he lived, and S. E. Carter, the defendant, afterwards. The letters from defendant Carter to plaintiff, and from her to him, are of the most affectionate character; the writers seem, though so long separated, to have never lost interest in each other or to have ceased their love as brother and sister. The letters though nQt models of literature are models of fraternal love, and the business features that necessarily come into the letters, when they relate to business, show only a desire to promote the welfare of each other. The letters are altogether too long and numerous to insert all of them in this opinion, .but such is our estimate of them. A. Gr. Carter looked after the plaintiff’s business affairs while he lived and we are not concerned with that, but it is the affairs of the plaintiff while the defendant S. E. Carter looked after them that are in question.

In 1890 the plaintiff, her brother William and sister Laura, executed a mining lease for fifteen years to their brothers A. Gr. and S. E. Carter, and under that lease the two latter made several subleases, but the operations had not proven very successful. October .20, 1905, defendant Carter wrote plaintiff, sending her a deed to be executed by her extending the lease for ten years, which she promptly executed and returned. In his letter of November 15, 1905, he thanked her for her prompt action in executing and returning the extended lease, and took occasion to say that he did not have at that time as much hope of selling the land as he had had, because the company that thought of buying had a heavy task in the matter of drainage, and the company that was there before said they had lost $150,000, and he said he believed those figures were about right. The heirs had for several years been trying to sell the land; the negotiations being conducted by A. G-. and S. E. Carter while the former lived and by the latter after the death of the former. In 1903, an option had been granted to one Hunter to purchase the whole tract for $81,000, but that failed.

In November, 1904, S. E. Carter conducted negotiations which led to an option for the sale of the land at a price which was to realize to each heir $10,760; the deeds were to be made to Charles A. Byrd through whom, for convenience, the title was to pass, if the sale should be consummated. Accordingly on November 30, 1904, Carter wrote the plaintiff inclosing the draft of a deed to be executed for her and her husband, conveying her one-fifth of the land. The deed was to be deposited in a bank in Webb City in escrow to be delivered when the price was paid. In the letter he said: “I have sent a similar -deed to all of the children. I have what I think is a good chance to dispose of the property, and as George’s interest will have to be procured through court it will take sometime, and then the people who are figuring on taking it expect to form •a stock company and sell stock. ’ ’ The George referred to was the minor son of A. G. Carter, deceased. Plaintiff in her letter replying, began: “My dear Brother: I received your letter} together with deed for land. We signed deed and returned it as soon as possible. I hope everything goes all right this time. It has been such a long time since I heard from any of you folks I was so glad to hear even through a business way.” The letter proceeds in a very sisterly tone and closes’ with, “Best love to you all.” That option also failed of consummation.-

On the question of fraudulent concealment and misrepresentations there was a great deal of testimony relating chiefly to the condition of the property in the way of mining and mining prospects. On the' part of the plaintiff there was testimony tending to show that in the fall of 1905, at the time the defendant Carter made his offer of $5000 to plaintiff for her interest, there were on the land three or four mills completed or in course of construction, several shafts being sunken, and much drilling with encouraging prospects, and the testimony on the part of the defendant did not diminish these works, but tended to show that they were constructed in the spring of 1906. One witness for the plaintiff testified that in a conversation with Carter in the fall of 1905, the latter said the land was worth $275,000. That witness also testified to the erection of mills, sinking of shafts and drills on the property-at that time. An effort was made to impeach this witness, several testifying that his reputation for veracity was not good. But there were several other witnesses against whom no impeachment was attempted, who testified that the land was worth at that time from $250 to $500 an acre. Witnesses for defendant testified that it was worth $100 or $150 an acre. The testimony showed that at the time he made this offer of $5000 to plaintiff he had bought or contracted to buy his brother William’s one-fifth interest' for $10,760, and the interest of the widow and heir of A. G-. Carter for the same amount. And that he had bought the interest of his sister Laura for $3500, that she afterwards brought suit against him to set aside the sale, and he compromised the suit by paying her at the rate of $100 an acre — which would amount to about the same that he paid William. The purchase from Laura was in the summer of 1905, and regarding that purchase he wrote the plaintiff that he had bought Laura’s interest for $3500 and had taken a risk in investing that much money in the land under the conditions.

June 5, 1905, plaintiff wrote her brother that her husband was in some trouble, that their money was tied up and they needed $2500, and asked him to lend her that amount; he very promptly complied with the request. July 9, 1905, she wrote enclosing the note of herself and husband for the money so loaned them and in the letter she asks if he thinks he will be able to sell the place that year, saying she hoped it could be sold “because it would be so much better for us all before any more of us passes away.” October 21, 1905, she wrote inclosing “$500, part payment of the $2500 loan, and referred to his ldndness in helping them over a bad place, and again expressed the hope that he would be able to sell the place. We quote from her letter to show the kind sentiment she entertained for her brother and her interest in the affairs of the family. After discussing the business relating to the loan and the part payment, she went on in that letter to say:

“I think you do yourself an injustice when you say you are a poor hand to write you certainly a most interesting letter you must have enjoyed yourselves while in the mountains this summer I think I should enjoy the praries I have seen nothing bnt mountains for so long.
“I’m sending you a pansy, I picked from my garden today so you can see it isn’t so wintry in the vn ev flowers and hardy vegetables do very well pansies and Asters last the longest.
“Is Bill dissatisfyed where he is liveing since they lost their babie? He owns the farm dosent he? I don’t think Belle ever liked the old home place very well I hope it can be sold before a great deal has to be laid out on it. I had so hoped something could be done before that deed expired but it can stand just as it is cant it without any change.
‘ ‘ The children and I are ■ alone as usual I stay here while Wm is away on account of the children being in school, schools are very good in all the incorporated towns of Alaska.
“I must close for this time with best love to Mahala and all the rest of the family yourself included
“I remain as every your
“Affectinate Sister
Mary C. Leslie.”

It was in answer to that letter that defendant Carter wrote proposing to buy the plaintiff’s interest for $5000. His letter making the offer is such an important feature in this case that we are forced to copy it in full, literally if possible.

“November 15, 1905, Mary E. Leslie. Dear Sister I received your ever welcom, Letter of Oct. 23th also $500.00 and $18.00 as interest which, I have credited on your, note now, Mary, I did not kneed this Money at preasant and you kneed not weary about the remainder for i will let you know in plenty of time if i kneed it I was indeed sorrow to hear that every thing was not going as pleasant as hoped for I hope things may turn more favorable to you and your family and that William will succeed favorable to him in his Litigation. Mary you' have now idea how i appredated that little flower, that token of love and friendship yon sent me in your Letter I must thank yon for your prompt action in exicuting and sending back thos papers they have ben received in good shape I do not have as much hopes now of selling as i had some time ago for this company that was wanting to buy this Land is the Company that is trying to Drain this track of Land and thare superintendant told me that they had allready spent $160000.00 in Pumping and machinery and ect this is on the Baker Land and our togather the amarican company that was thare before them I understand clame to have lost about 150000.00 I believe thease fig*urs ar not far from right all though they seam very large to one that is not familler with a large Pumping propsetion I know thare expenses is very large Mary, I have tryed very hard to sell this Land but when thease things come up it is all off the mills that has ben on our Land hear to for has not as yon know ben a success and if we can not get a mine that is a money maker started somewhare on it it will not be a easy matter to sell and Georges Interest Is somewhat of a drawback with some prospective purchasers for fear a goob title could not be made through the court and others think it would take to much time & so on I am not writing this to discorage you I wish I could write you something more favorable this may some time prove to be a very productive property and It may be a good thing for us if we coulb not be able to sell at all no one can tell what the future may bring fourth I do not want to advise you in any way in the sale of this Land I just sending the condetions as I see them I all ways was in favor of partetioning this Land in Brothers Lifetime for I thought, if Myne was off by it self i could dispose of it and I think yet that if I could sell this land in small tracks it could be sold to much better advantage I think if it should fail to develop for mineral property that a portion could be disposed or to small farmers and market gardners

on time payments say about five years time on a 10 acre track or something like that you ask, me if Brother ■william owned his farm in McDonal. Co yes and i think it is all clear I think they are in comfortable surcamstanc thare are about to sell and came up hear thay are thinking of buying the old judge stevinson farm, where Lum livgs he Lum is thinking of going to Panhandal Texas. I have ben offering to trade Brother william some webb city property and also some johns town property for his interest in the old home but we have not yet traded Bell is very anxious she says to sell out before any more complications arise by death or other wise

now Mary I will make you this offer for your part in the old home if you want to take it I will give you five thousand Dollars $5000.00 then I can possible make arrangements to sell in small tracks if I buy Billeys part I am not advising you to do this but it is all that I think I can possible give. I will send description of Land so you can execute if you desire and send to webb city Bank and instruct them to deliver to me when the money is at your credit this would make $25000.00 for the track quite a little sum it may be worth more after a while or it may be a great deal less if you conclude to do this let me know soon.”

December 9, 1905, the plaintiff wrote her answer to that letter, the first paragraph of which was:

“My dear Brother: Your letter of Nov. 15th has been before me for a couple of weeks and after some consideration and several sleepless nights I concluded to accept your offer. I hated awfully to sell what has always been such a fond memory to me but I know all things must change with time and it seemed the best to us all and you offer was generous for an individual although less than half what we had hoped to get but life is made up of disappointments. I hope it will be a successful investment for you and I’m sure it will be Brother used to say he would rather trust your judgment than any one he ever knew.”

She then goes on to say that she has forwarded the deed as he directed, and asks him to invest the money for her as she has such confidence in his judgment.

There is a great deal more of the letter correspondence, but the above is a sufficient sample of the whole.

I. Before taking up the evidence relating to the defenses made by the answer of defendant Byrd we will consider the evidence bearing on the questions of betrayal of confidence and fraudulent concealment of material facts.

It would be difficult to imagine a ease of greater trust and confidence. Here was a sister who, following the fortunes of her husband, had left the home of her childhood and -youth and gone to a far away land, trusting all that she owned to her brothers, for whom, as her letters show, she entertained strong affection. When one brother died her affairs came exclusively into the care of the other, who assumed that agency and conducted it for two years before the transaction now complained of. In the exercise of that agency he not only collected the little rents and royalties belonging to her, but was active in his efforts to sell her interest in the property in connection with that of the other heirs. His business letters to her were not merely letters of business but letters of brotherly love, and in those letters he professed to give her all the information he had affecting the value of the property, and until the last year of his agency, 1905, the information seems to have been correct. But in November, 1905, when he wrote the plaintiff offering to give her $5000 for her interest, the evidence shows that the mining prospects' which gave value to the property were brighter than they had ever been, but he failed to give her that information.

Appellants in their briefs say that it was the developments made by the industry of defendant Byrd since that time that has given value to the property. The evidence does show that there have been developments, but those developments are the realizations of the fair prospects that then existed. In all his letters to the plaintiff defendant Carter wrote discouraginglv •of the prospect of selling’ the property. In his letter of November 15th he said he did not have as much hope as he had had of selling, because the company that was trying to drain the land had already spent $160,000 in pumping and the end was not yet, and that a former •company had claimed that they had lost $150,000 in the same effort; he mentioned other discouraging matters, and then said: “I am not writing this to discourage you I wish I could write you something more favorable.” He could have written something more favorable, but if he had done so the probabilities are that the plaintiff would not have accepted his offer. In the^summer of 1905 he wrote the plaintiff that he had bought their sister Laura’s interest for $3500, and that he thought he had taken some risk in paying that much for it. According to testimony introduced by defendants the land was worth from $100 to $150 an acre. That could not have been an estimate of its value as farm land only, for defendants’ evidence shows that it was not very valuable as farm land; the •estimates were based on the fact that ore was found on the land and its mining prospects were good. Besides, at the time this offer was made to plaintiff defendant Carter concealed from her the fact that he had already bought or contracted to buy the interests of William and that of the widow and. heir •of George at the price of $10,760 each. It was only the sister Laura who was away off in the State of Washington, and the sister Mary in far away Alaska, who were induced to sell, the one for $3500, the other for $5000.

The evidence justifies the finding and judgment, of the trial court on the questions of betrayal of confidence and concealment of material facts.

II. The next question is, was defendant Byrd an innocent purchaser for value? There was a great deal of evidence on that issue which we will not attempt to compress into this opinion, but will only give its general character and our conclusions drawn from it.

In 1904, S. E. Carter negotiated a sale to be made of the whole property by which each heir was to receive $10,760 for his or her share, and deeds to carry that .proposed sale into effect were executed by each of the heirs and deposited in a bank in escrow. Those deeds were all made to defendant Byrd; he was not to be the real purchaser, but was selected by Carter as a convenient holder of the title, which he was to convey to the real purchaser when the proposed sale should be executed. That sale was not effected and the deeds-in escrow were ’withdrawn from the bank.

In February, 1906, Carter, then holding title to three-fifths interests, his own and those of his two sisters, executed a deed conveying to defendant Byrd those three-fifths, for which Byrd executed his promissory note for $32,280, and about the same .time Byrd acquired the title to the interest of William Carter and that of the widow and heir of George Carter deceased, paying for each of those interests $10,760. The good faith of the deed from Carter to Byrd is challenged, and the good faith in taking the title to the other two interests in Byrd’s name is also challenged; it being contended that the one from Carter to Byrd was without consideration, and that Carter was the real purchaser of the two others’ interests.

Byrd was S. E Carter’s son-in-law; he was not a man of considerable property. Until shortly before the transaction complained of he had lived on a farm of 114 acres belonging to his father-in-law, which he-rented at the yearly rental of one-third of the crop. lie left the farm and moved to town, where, fox a while, he conducted a butcher shop, which he afterwards sold, but could not remember the price he received for it. He testified that he engaged in the real estate business, but to what extent he could not give any definite idea. Then he went into the live stock business, and when asked to state the extent of that venture said that he owned two jacks and a stallion; he had also bought and sold hogs, in all of which ventures he made money, but how much he was unable to say. The assessment rolls of the county showed that the total assessment of the personal property of himself and wife for the year 1905 was $405. We gather the impression from the evidence that he is a man of considerable intelligence, business capacity and activity, but that he is,' or at least at the time of the transactions under discussion was, not a man of sufficient means to purchase property of the market value of $50,000. He testified that he paid for, the three-fifths that his father-in-law sold him with his note for $32,280, and that he borrowed $15,000 by a mortgage on that property and used that money with some other means he had to pay for the two other interests at $10,760 each. Ooneeding the truth of what he says the fact stands out clearly that he was greatly favored in the transaction by his father-in-law. A father has a right to be generous to the husband of his daughter, but when they are both called into court to answer- a charge of fraud and the son-in-law comes in in the role of innocent purchaser for value, he is not entitled to credit for so much of the value he claims to have expended as came to him through the generosity of his father-in-law out of the property acquired through the fraud charged. He undertook to show that he had, before this, had a transaction with his father-in-law by which he purchased or agreed to purchase the 114-acre farm he had formerly lived on, and had made some payments on that, and that when this matter came up they cancelled that agreement and the father-in-law refunded the money Byrd had from time to time paid on that account and he paid that as a part. payment on the $32,280 note. His testimony as to 'that transaction was not very clear, but conceding it to be true it does not account for the sale of the three-fifths interest in this valuable property for $32,280 paid only in the note of Byrd and wife except on the theory of the generosity of Carter to his daughter and son-in-law. Carter had a right to be as generous as he pleased with his ownj but not with his sisters’ interests. The $32,280 note was not secured by mortgage on the property conveyed or otherwise, except a personal agreement that a certain proportion of the income derived from the property should be applied towards its payment; it was only the personal note of Byrd and wife. It'was the title he obtained of that three-fifths interest which was the foundation of this purchase of the whole property at the aggregate price of $53,800. If Byrd had come as a stranger into the market to purchase, with no favors to be granted him, it is altogether improbable that he could have made that purchase. There was evidence of a very satisfactory character tending to show that Carter paid the purchase money for the interests of William and the widow and heir of George, and that he paid the $15,000 mortgage that Byrd had put on the land. There was also evidence of the notary who wrote the deeds that about the same time that Carter executed the deed conveying the three-fifths to Byrd the latter executed a deed to Carter conveying all the land to him, but defendants denied that.

Our conclusion from the evidence is that Byrd has not sustained his plea of innocent purchaser for value.

III. It is claimed by defendants that the plaintiff has been guilty of laches. The deed was obtained from her in December, 1904; this suit was begun in May, 1908, therefore not barred by the Statute of Limitations. Laches is an equitable defense, it is allowed sometimes when the period of limitation prescribed by the statute has not elapsed; but it is never allowed unless the delay has produced such a change in conditions that the defendant is put at disadvantage, and not always then. The delay in this case has worked no injury to the defendants, they were as well equipped to make their defense at the trial as they would have been at any time before. But it is said that mining leases to third parties have been made and their interests would be jeopardized. The interests of those parties are not in question in this suit, and what is here adjudged is not res adjudicata as to them. If this plaintiff should hereafter dispute the validity of ’ the mining leases, as they affect her one-fifth interest, the courts will be free to hear what the lessees have to say on that subject. So far as those leases may involve the defendants in controversies, the plaintiff is not responsible. It is certainly no answer to a charge o'f obtaining property by fraud that the defendants have made such a disposition of it that it would embarrass them to be required to make restitution.

There is another answer to this plea of laches. The conduct of defendant Carter was such as to allay suspicion.

In January, 1906, defendant Carter wrote the plaintiff about the suit Laura had brought against him, complaining bitterly of its injustice, and, attributing it to the influence of lawyers, asking her to try and recall everything that she had ever heard Laura’s husband «ay in reference to the value of the property and the mining shafts that were there in 1897. It was a letter full of expressions of affection for Laura and regret that she had fallen into the hands of the “gang of lawyers” which would result in her financial ruin. Plaintiff answered the letter assuring him of her sympathy and assistance. Those letters show the confi■dence the plaintiff still reposed in her brother; she was ready to take sides with him against her sister, whose hospitality she had enjoyed and with whom she had made her home before her marriage, not perhaps because of lack of affection for her sister, but because of the representations contained in the letter of her brother to the effect that Laura had been imposed on by the lawyers who advised the lawsuit. That suit, ■as has already been said, was compromised by paying Eaura a sum equivalent to that paid William. January 14, 1908, plaintiff wrote her brother a long and affectionate letter in which she said: “My dear Brother: I received your ever welcome letter sometime ago but owing to its being so near Xmas times I hadn’t time to answer. I was indeed glad to know how you feel regarding the old home place and hope you may get great returns sometime in the near future. I have and always have had unbounded faith in the integrity of my brothers and what they say they always do.” Up to that date, as .all the letters show, the plaintiff had absolute confidence in her brother, the defendant Carter, and he conducted himself towards her as if he entertained for her the most genuine affection. But in January, 1908, after she had written the above letter, the plaintiff was informed by a letter from her brother William that their nephew George had brought suit against these defendants which had come to trial in January, 1908, and the report of the trial conveyed to the plaintiff the first information that led her to believe that she had been imposed on. William enclosed in his letter a clipping from a newspaper giving an account of the trial. After that she lost no time in bringing suit. Of course what William said in the letter and what was said in the clipping from the newspaper were not evidence of the truth of what was said, but it was evidence in connection with her testimony as to when she received the first information.

The defense of laches is not sustained.

IY. There was an accounting covered by the decree including’ rents and profits. Appellants complain that they should have been allowed certain items and should not have been charged with certain other items.

a. It is claimed that Byrd should have been credited with the value of his services in improving and developing the property. It was shown that the property had advanced in value after the defendants had obtained the deed from plaintiff, but that increase in value was owing chiefly, if not entirely, to the development of its minerals through the operation of the mines and that was the'work of the lessees holding mining leases. It was doubtless true that the leases were made through the activity of the defendants, but it would have been mere conjecture if the court had undertaken to estimate the value of Byrd’s services based on the increased value of the property. Besides, what he did was in his own interest or that of his father-in-law, and they were in possession of the plaintiff’s property in their own wrong. It was not error not to allow that item.

b. Byrd obtained a judgment against the Webb City Bank for $10,469.92, for a bonus on a lease of the premises, and the court decreed that plaintiff was entitled to one-tenth of that judgment when collected less costs and'expenses for attorney’s fees. We find no error in that.

c. The court found that defendants had received from minerals taken from the land of plaintiff the sum of $2212.85, which sum she was entitled to deduct from the $5000-paid her as purchase money which she had tendered back in her petition. But the court did not allow defendants interest on that $5000, as it should have done, from the date of the payment to her to the date of filing the suit. The exact date when the $5000 was paid does not appear; the deed from plaintiff to Carter is dated December 9, 1905, it was recorded February 5,1906, perhaps it would not be far wrong to take Janua,ry 1st, 1906, as near the date of payment of the money, which would give as an approximate of the period on which interest should he allowed, two years and four months, amounting to $700. That amount should be added to the $50007 making $5700', from which deducting $2212.85 leaves $3487.15, the amount to be paid by plaintiff on the fulfillment of the decree. That is the only error we find in the record. For that error the judgment will be reversed and the cause remanded with directions to the circuit court to enter a decree in all things the same as the decree rendered August 6, 1908, except to add $700 as interest to the $5000, from which the $2212.85 is to be deducted, leaving the amount to be paid by plaintiff to defendants on the fulfillment of the decree on their part, $3487.15; the decree to be entered as of date August 6, 1908. All concur.