Appeal from the Circuit Court of Henderson County; the Hon.
Stephen G. Evans, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Henderson County which dismissed certain equity counts in a complaint filed by the plaintiffs, Edith M. Diehl, Martha J. Pratt and Mary E. Steele, against the defendants, L. Fred Olson, Frank Olson, and L. Fred Olson as executor of the estate of Elizabeth G. Olson, deceased.
One of the plaintiffs, Martha Pratt, is not a party to this suit since she requested and received dismissal with prejudice from the case. Simply stated, the complaint sought to recover certain farms from the defendants so that they would become assets in the estate of their mother.
At age 91, Elizabeth G. Olson departed this life on July 31, 1978. She left surviving her six children, being four daughters, Edith M. Diehl, Martha J. Pratt, Mary E. Steele, and a daughter Ethel, with whom she resided. Ethel, however, departed this life prior to the institution of these proceedings. The sons surviving Elizabeth are the defendants, L. Fred Olson and Frank Olson.
The decedent Elizabeth Olson, with the assistance of an attorney, executed a will in 1969 to which she added a codicil on January 17, 1972. The will and codicil of the decedent provided that at her death several farms owned by her would be divided equally among her children and that the defendants Fred and Frank would have an option to purchase the same for a price determined at the date of her death.
In April 1974, the decedent, Elizabeth G. Olson, executed two contracts whereby she agreed to sell her farms, one farm to her son, the defendant L. Fred Olson, and one farm to her son, the defendant Frank Olson. Both contracts provided that the consideration for the purchase of the farms would be payable in installments. The defendants made all payments required by the contractual terms to an escrow agent and paid the consideration in full a year earlier than required.
The plaintiffs question the validity of these contracts, which were executed over nine years prior to the institution of this lawsuit. The suit was filed in July 1983, just two days short of the fifth anniversary of the death of Elizabeth G. Olson. It is the plaintiffs' contention that Elizabeth G. Olson was incompetent when the contracts were executed and that this incompetency continued until her death in 1978.
Since the execution of the contracts, time inexorably marched on, leaving its usual toll in its wake. Elizabeth G. Olson died as stated and her daughter Ethel, with whom she lived, also departed this life. Death also silenced other important defense witnesses, namely, attorney Stanton Prentice, defendants' attorney, and two appraisers who valued the land for the decedent.
• 1 A court of chancery will refuse relief where by reason of the delay of a party in asserting a claim the evidence has been lost or so obscured so that the court is physically precluded from ascertaining the matter in dispute. Pyle v. Ferrell (1958), 12 Ill.2d 547, 147 N.E.2d 341; Bobin v. Tauber (1976), 45 Ill. App.3d 831, 360 N.E.2d 368.
The record in this case discloses that the plaintiffs by their own admission knew in advance that a sale of the farms from their mother Elizabeth to the defendants was contemplated. They had knowledge of the terms of the sale, obtained their own appraisal and learned in 1974 that the sale had been consummated. The evidence discloses that Martha Pratt, the daughter who withdrew as a party to this suit, had knowledge when the contracts for sale of the land were executed. She possessed this knowledge on the very day they were executed. In the summer of 1974 the defendant Fred Olson discussed with his sister Mary Steele that the sales had taken place. During the same time frame, the summer of 1974, the defendant Frank Olson had a like discussion with his sister Edith Diehl.
The trial court, after hearing extensive testimony, made a number of findings, among which was that the plaintiffs knew or reasonably should have known that a cause of action, if any existed, arose in April of 1974, said date being nine years and three months prior to the time they filed suit and four years prior to the death of Elizabeth Olson.
The defendants, as a result of the delay of the plaintiffs in filing suit, were seriously prejudiced by the death of witnesses who had actual knowledge as to what the actual circumstances were at the time the contracts for sale of the farms were negotiated and consummated.
• 2 It is further noted that the defendants were further prejudiced by the long delay in that they made significant improvements on the farms and throughout the years paid taxes on the same. A party is barred from asserting a claim when he remains passive for a long time while permitting an adverse claimant to make expenditures in improving the property involved in the action and paying taxes thereon. Schroeder v. Schlueter (1980), 85 Ill. App.3d 574, 407 N.E.2d 204; Pyle v. Ferrell (1958), 12 Ill.2d 547, 147 N.E.2d 341; Freymark v. Handke (1953), 415 Ill. 360, 114 N.E.2d 349.
• 3 The plaintiffs in an effort to thwart the application of the doctrine of laches raise several issues, one of which is that the defendants had the burden of showing clean hands prior to their application of the doctrine of laches and they, the defendants, did not meet this burden. This assertion of the plaintiffs is not well founded since the defendants had no burden to meet with respect to the doctrine of clean hands since it is inapplicable when defendants are seeking defensive relief from a court of equity and are not counterclaiming. ...