# Annon v. Lucas

> West Virginia Supreme Court · December 6, 1971 · 155 W. Va. 368

URL: https://www.frixlaw.com/law-library/cases/9849110

## Case

- **Full name:** Woodrow W. Annon v. David F. Lucas, Sheriff, Etc., Et Al.
- **Court:** West Virginia Supreme Court
- **Decided:** December 6, 1971
- **Citations:** 155 W. Va. 368; 185 S.E.2d 343
- **Precedential status:** Published
- **Opinion:** Dissent by ARRiGAN
- **Judges:** Arrigan
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9849110

## How later opinions describe it (automated extraction)

- recognizing that relief for unjust enrichment is provided where “property which has been acquired by fraud, or . . . it is against equity that it should be retained by the person holding it”
- recognizing that relief for unjust enrichment is provided where “property which has been acquired by fraud, or ... it is against equity that it should be retained by the person holding it”
- holding that the legal title holders to real property held it in constructive trust for the equitable title holder, who was entitled to the real property based on an earlier contract

## Opinion text

C ARRiGAN, Judge,
dissenting:
I dissent from the majority opinion in this case.
The record discloses the following chronological facts in this case:
First: By a written instrument, dated May 13, 1949, plaintiff’s uncle, J. M. Annon, “agrees and does hereby sell, transfer and convey unto” plaintiff a farm of 131% acres in the State of Ohio together with all stock and equipment thereon, the plaintiff to receive the entire income from said farm and to pay all expenses of operation, taxes and upkeep. The consideration for this conveyance and transfer was that plaintiff would provide his uncle, J. M. Annon, for the remainder of his life “a home and the necessaries of life and will assume all obligations for the operation, taxes and upkeep of said farm.”
Second: On or about April 14, 1950, J. M. Annon executed a will leaving his estate to Walter H. Annon and Irene H. Annon, the plaintiff’s father and stepmother.
Third: On or about October 27, 1952, J. M. Annon conveyed the 131%-acre farm in Ohio to a third party and received over $20,000, which he deposited in a bank in the State of Ohio.
*386 Fourth: J. M. Annon died November 30, 1965, some thirteen years and one month after he conveyed the farm to a third party in October 1952.
Fifth: The will of J. M. Annon was probated in Taylor County, West Virginia, in January 1966 and Walter H. Annon, plaintiff’s father, qualified as executor thereof on January 19,1966. The ¡executor proceeded to pay the debts and inheritance taxes due from said estate and apparently was in the act of making a settlement of his account when the executor died on April 19, 1967. The wife of Walter H. Annon, plaintiff’s stepmother, predeceased both J. M. Annon and her husband, she having died intestate survived by one child.
Sixth: Plaintiff instituted this suit on April 22, 1967, three days after his father’s death, approximately thirteen months after the death of J. M. Annon, and approximately fourteen years and six months after J. M. Annon conveyed the 131%-acre farm to a third party.
A reading of the writing of May 13, 1949, which is fully set forth in the majority opinion, leads me to the conclusion that it is clear and unambiguous and that on that date J. M. Annon conveyed to plaintiff both his legal and equitable title to the 13114-acre farm, and the stock and equipment, and that thereafter plaintiff was to receive the income from the farm and to pay the taxes thereon and the upkeep thereof.
After May 13, 1949, no further action was required of J. M. Annon, or his heirs, to transfer title of said farm and equipment to plaintiff. If plaintiff had recorded the May 13, 1949, writing, he would have paramount title over the third party purchaser from J. M. Annon. Plaintiff acquired a determinable fee in said farm and equipment of which he could be divested only by plaintiff’s failure to provide a home for J. M. Annon or to perform the other things required of plaintiff in the May 13, 1949, writing.
Is it reasonable to believe that plaintiff, who was to receive the income from this farm and was to pay the taxes *387 thereon and upkeep thereof, would sit idly by for fourteen and one-half years without receiving any income from the farm or without paying any taxes thereon or any upkeep and not be said to have had knowledge of J. M. Annon having disposed of the property to a third party? Why did plaintiff wait until both J. M. Annon and plaintiff’s father, the brother of J. M. Annon and one of the legatees of his will, had died before starting this action? Is it possible that had this action been started during the lifetime of J. M. Annon or even that of plaintiff’s father, their testimony would have defeated the claim of plaintiff?
A reading of the various cases dealing with the doctrine of laches can only lead to the conclusion that in each case courts of equity have “tailored the suit to fit the cloth.” The following is quoted from Pownall v. Cearfoss, 129 W.Va. 487, 506-07 , 40 S.E.2d 886 , 898 (1946):
Laches may be said to be such neglect or omission to do what a person should do as warrants the presumption that he has abandoned his claim and declines to assert his right, or such delay as works disadvantage to another. Blake v. Blake, 98 W.Va. 346 , 128 S.E. 139 . Any excuse for delay that takes hold of the conscience of the chancellor, and makes it inequitable to interpose the defense, is sufficient. Berry v. Wiedman, 40 W.Va. 36 , 20 S.E. 817 . It is a well settled general rule in equity that mere lapse of time, unaccompanied by circumstances affording evidence of a presumption that a right has been abandoned, is not considered laches. Roberts v. Crouse, 89 W.Va. 15 , 108 S.E. 421 ; West Virginia Power & Transmission Co. v. Voight, 91 W.Va. 581 , 114 S.E. 138 ; Cranmer v. McSwords, 24 W.Va. 594 .
Laches implies injury to the person pleading it, brought about by loss of the evidence, the death of some of the parties to the original transaction, changed situations, or the intervention of the rights of other persons. Roberts v. Crouse, 89 W.Va. 15 , 108 S.E. 421 ; Cranmer v. McSwords, 24 W.Va. 594 . Mere delay or lapse of time alone is not sufficient to bar relief. It must be accompanied by some disadvantage to the opposite party, or by some conduct indicating abandonment of the *388 claim, the reassertion of which will inure to the benefit of the claimant by reason of changed conditions. Mitchell v. Cornell, 88 W.Va. 194 , 106 S.E. 866 . (Emphasis added.)
It appears that plaintiff knew, or should have known, shortly after 1952 that his uncle had sold the 131%-acre farm to another, since plaintiff received no income nor did he pay taxes or upkeep thereon. Possessing such knowledge plaintiff waited -until both J. M. Annon and Walter H. Annon died so that their testimony would not be available. Further, plaintiff in his original, first amended and second amended complaint offers no reason or excuse for the long delay in bringing this action. Long delay in asserting a right would raise a presumption of abandonment or acquiescence, and would require an averment excusing the delay or rebutting the presumption of abandonment or acquiescence. Hale v. Hale, 62 W.Va. 609 , 59 S.E. 1056 (1907). “Leges vigilantibus non dormientibus factae sunt.” Williams v. Harrell, 43 N.C. 123, 125 (1851).
The passage of some fourteen and one-half years before any action was started, the death of J. M. Annon, an original party to the writing of May 13, 1949, before plaintiff started this action and plaintiff’s failure to show any reason or excuse for such delay, leads me to the conclusion that plaintiff had abandoned any claim he might have had under the May 13, 1949, writing or that he acquiesced in the action of J. M. Annon in selling the farm.
For the foregoing reasons, I would hold that plaintiff’s claim is barred by laches, and I would affirm the ruling of the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9849110. Public record. Not legal advice.