Barrett v. Zenisek

APPEAL AND ERROR ? TRUSTS ? EQUITY 1. Appeal and Error ? Review in equity case. The Supreme Court will review all questions of law and fact on appeal in equity case. 2. Appeal and Error ? When court will reverse. Supreme Court will not reverse trial court in equity case on questions of fact, unless there is a decided preponderance of evidence against findings of trial court. 3. Trusts ? Character of proof. In order to recover on theory of resulting or constructive trust, proof must be clear, satisfactory, convincing, and practically free from doubt. 4. Trusts ? Evidence insufficient to establish trust. Evidence was insufficient to establish constructive trust with respect to realty by clear preponderance of evidence or in clear and decisive manner. - Page 230 5. Equity ? Laches. Delay which will bar relief in equity, on ground of laches, is not necessarily measured by period prescribed by statute of limitations, and it may be much less, depending on peculiar circumstances of case. 6. Equity ? Application of rule of laches. In determining whether laches will bar particular claim, it is proper to consider whether party or important witness has died, and party against whom claim is asserted has been deprived thereby of important testimony, or whether property involved has increased in value, or whether property has passed into hands of innocent third party, or whether position of parties is so changed otherwise that injustice will follow failure to apply doctrine of laches. 7. Trusts ? Laches applicable. Where there was a lapse of about 36 years in bringing suit to establish constructive trust with respect to realty, positions of parties had been materially changed, defendants had paid all taxes on realty, had farmed the realty for a long time, and had lost testimony of material witnesses by death prior to trial, doctrine of laches was applicable against plaintiff.