
    Youse, Appellant, v. McCarthy.
    
      Equity — Equity practice — Findings of fact — -Review.
    1. Where the correctness of a judge’s finding of fact in a case tried before him under the equity rules, depends upon the view to be taken of the direct testimony of witnesses, the finding will not be disturbed by the appellate court, if there be evidence to support it, and it is not clearly erroneous.
    
      Equity — Practice—Lapse of time — Attending circumstances — Laches.
    ' 2. In general, laches, as a defense peculiar to suits in equity involves something more than mere delay, if the period of delay be shorter than that which under the statute of limitations would bar an action at law. In such cases the lapse of time during which the plaintiff has knowingly and without reasonable excuse neglected or omitted to assert his right, is to be considered in connection with the general nature of the proceeding, the nature of the transaction involved, the remedy at law, the altered conditions, if any, and all the attendant circumstances, and from the whole, the chancellor is to determine whether in equity and good conscience the defense ought to prevail.
    3. A bill in equity against an oil company to compel the removal of a pipe line and telegraph poles on plaintiff’s land cannot be maintained, where it appears that the work on the land was done while it was in the possession of an assignee of creditors of the plaintiff, but that the plaintiff knew that the work was being done and stood by without objection, that he permitted his assignee to accept from the defendant a money consideration for the use of the land, which consideration he never returned, and that he delayed for a year and a half after the land had been reconveyed to him by the assignee, before he filed his bill.
    Argued Nov. 15, 1911.
    Appeal, No. 228, Oct. T., 1911,
    by defendant, from decree of C. P. Berks Co., Equity Docket 1910, No. 1,025, dismissing bill in equity in case of Daniel K. Youse v. Henry A. McCarthy and Tuscarora Oil Co., Ltd.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Endlich, P. J., filed the following finding of facts:
    1. The plaintiff, being the owner in fee of a certain farm in Washington township, Berks county, of about 100 acres, on August 5, 1907, conveyed the same, together with his personal property, in trust for benefit of creditors, to Francis S. Janson, who on August 21,1907, transferred an undivided interest in the same to Randolph Stauffer, Esq., selected additional assignee by creditors; both conveyances being duly recorded.
    2. The inventory and appraisement filed under the assignment showed the value of the personalty to be $2,505.83, and that of the realty $5,060. The schedule of debts filed enumerated unsecured liabilities to the amount of $730.83, a mortgage debt of $1,000, and a dower charge of $3,333.33 payable upon the death of the dowress.
    3. The management of the assigned estate, and the collection and disbursement of the funds belonging to it remained exclusively in the hands of Janson, and by June 1, 1908, all the debts due and owing by the plaintiff (except the dower charge) were fully paid and satisfied out of moneys received by him from the sale of the personalty.
    4. With the assent of the plaintiff the realty continued in the hands of the assignees, its reconveyance to the plaintiff being deferred at his instance, until March 8, 1909, when it was made. In the meanwhile the farm was in possession of a tenant on shares, put there by Janson.
    
      5. On August 11, 1908, Janson, without previous knowledge or assent on the part of the plaintiff or of the coassignee, and without the joinder of either, entered into a written agreement with the defendant McCarthy granting to him, his heirs and assigns, the right to lay, maintain and operate pipe lines, and to set along the fences and operate a telegraph line, over and through the land conveyed by plaintiff to Janson in trust as above stated by the deed of August 5, 1907, and of ingress and egress to and from the same; the grantee to pay any damage done to crops and fences, and also to pay to Janson for the right granted the consideration of $32.50 and a further like sum for each additional line of pipe beyond the first. The agreement is in form the act of Janson individually, not as assignee, speaks of the lands affected by it as his lands without mentioning plaintiff in connection therewith, and is signed by him without describing him as assignee. It was recorded October 12, 1908, and assigned November 20, 1908, to one Bedford, and on May 10, 1910, to the Tuscarora Oil Co., Ltd., defendant. At the time of the negotiations between McCarthy and Janson leading to the making of the agreement, McCarthy’s agent, acting for him, had actual notice of the fact that the land involved was not the property of Janson individually.
    6. Shortly after the making of the agreement of August 11, 1908, the grantee (after settling with the tenant for his loss of crops) entered upon the land for the purpose of staking off the line to be followed in laying the pipe. The fine as then staked off was subsequently altered by the grantee and new stakes driven accordingly. After October 5,1908, he paid to Janson $65.00, the stipulated consideration for the right to lay two lines of pipe, and proceeded to lay these lines (about 1,600 feet in length upon the land in question), as well as to erect telegraph poles and string them with wires. In the course of the former work there was injury to growing crops, in that of the latter to fruit •trees upon the property; which injuries have not been compensated for. Since then the pipe and telegraph lines have been maintained and operated by the grantee or his assignees, defendants in this suit, and the Tuscarora Oil Co., Ltd., intends to continue to maintain and operate the said lines.
    7. Before the laying of pipes and the erection of poles the plaintiff had knowledge of McCarthy’s purpose to lay and erect them and of the fact that Janson had undertaken to grant him the right to do so. Plaintiff also saw the stakes that had been driven to mark the course of the pipe line upon the ground. He took no steps to prevent the consummation of that purpose, nor made any protest against it until after the lines had been laid and the poles erected, nor at any time to McCarthy himself, or those acting in his behalf or as his assignees.
    8. About the time of the reconveyance to plaintiff of the farm, a settlement was made between him and Jan-son of the accounts beginning from the assignment of August 5, 1907, covering and including as a charge against Janson the sum of $65.00 received by him from McCarthy as above stated, and exhibiting a balance of $18.53 as due to the plaintiff; which amount was paid to and accepted by the latter with knowledge of the fact that the settlement included said sum of $65.00. No account has been filed by the assignees.
    
      Error assigned was decree dismissing the bill.
    
      William Kerper Stevens, with him Walter S. Young, for appellant.
    — The plaintiff’s right is clear, and he is entitled to relief without resorting to an action at law; and, therefore, the fact that the bill was filed a year and a half after he secured possession of his farm does not constitute a waiver of his right to proceed in a court of equity: Stewart’s App., 56 Pa. 413; McCandless’ App., 70 Pa. 210; Goodson v. Richardson, L. R. 9 Ch. 221; Del., L. &> W. R. R. Co. v. Breckenridge, 41 Atl. Repr. 966; Baugh v. Bergdoll, 227 Pa. 420; Woods v. Greensboro Nat. Gas Co., 204 Pa. 606; McConahy v. R. R. Co., 31 Pa. Superior Ct. 215; Bussier v. Weekey, 4 Pa. Superior Ct. 69; Keppel v. Lehigh Coal & Nav. Co., 200 Pa. 649.
    The question of laches must be decided upon the facts of each case. Mere delay short of the period fixed by the statute of limitations does not usually deprive one of his right to restrain an invasion: Mellish’s Est., 2 Parson’s Equity, 482; O’Brien v. Wheelock, 184 U. S. 450 (22 Sup. Ct. Repr. 354); Carr v. Wallace, 7 Watts, 394; Glidden v. Strupler, 52 Pa. 400; Penn. Mut. Life Ins. Co. v. Austin, 168 U. S. 685 (18 Sup. Ct. Repr. 223); Platt v. Platt, 58 N. Y. 646.
    
      Isaac Hiester, with him Dunn & Schaeffer, for appellee.—
    If one knowingly receives the purchase money of land sold he affirms the sale and he cannot claim against it whether void or only voidable: Adlum v. Yard, 1 Rawle, 163; Stroble v. Smith, 8 Watts, 280; Crowell v. Meconkey, 5 Pa. 168; Smith v. Warden, 19 Pa. 424; Maple v. Kussart, 53 Pa. 348; Jacoby v. McMahon, 174 Pa. 133.
    October 14, 1912:
   Opinion by

Rice, P. J.,

The facts of this case are accurately, clearly and concisely stated in the findings of the learned trial judge, and a restatement of them by us is unnecessary. The only finding of fact that is assigned for error is the seventh; but there was ample evidence, if believed, to sustain it, and the testimony of the plaintiff himself scarcely puts it in doubt. Even if his testimony raised a substantial conflict regarding the fact, still the rule would be applicable, that where the correctness of a judge’s finding of fact, in a case tried before him under the equity rules, depends upon the view to be taken of the direct testimony of witnesses, the finding will not be disturbed by the appellate court, if there be evidence to support it and it is not clearly erroneous. This rule does not permit a perfunctory consideration of the evidence relating to facts in dispute, and is in entire harmony with the doctrine enunciated by Justice Trunkey in Worrall’s App., 110 Pa. 349; but it does attach great weight, and properly so, to the superior opportunity which the trial judge has to judge of the credibility of witnesses: Canavan v. Paye, 34 Pa. Superior Ct. 91.

Complaint is made, in the second assignment of error, of the judge’s conclusion of law “B,” which was, in substance, that, by reason of the plaintiff’s failure to object to defendant’s entry upon the land before the laying of the pipes, etc., and his delay after that in filing the bill, he was precluded, on the score of laches, from seeking a decree enjoining the operation of the pipe and telegraph lines and compelling their removal, or either. When this conclusion is read in connection with the findings of fact, it will be seen that it does not rest alone on the lapse of time during which the plaintiff delayed assertion of his right, but that and other circumstances of great significance. Thus viewed, the conclusion is not erroneous, but is warranted by well-established principles of equity. In many cases equitable relief depends on the discretion of the chancellor, and the laches of the complaint is often one of the most important of the elements which are taken into consideration when that discretion is exercised: Bispham’s Eq. (7th ed.), sec. 39. In general, laches, as a defense peculiar to suits in equity, involves something more than mere delay, if the period of delay be shorter than that which, under the statute of limitations, would bar an action at law. In, such cases the lapse of time during which the plaintiff has knowingly and without reasonable excuse neglected or omitted to assert his right, is to be considered in connection with the general nature of the proceeding, the nature of the transaction involved, the remedy at law, the altered conditions, if any, and all the attendant circumstances, and from the whole the chancellor is to determine whether in equity and good conscience the defense ought to prevail. It results, from the very nature of the defense, that each case as it arises must be decided according to its own peculiar facts, taking into ' consideration all the elements affecting the question; Scranton v. Manley, 13 Pa. Superior Ct. 439; Hansell v. Downing, 17 Pa. Superior Ct. 235. But if it be true, as has frequently been declared, that nothing can call a court of equity into activity but “conscience, good faith, and reasonable diligence,” and that “where these are wanting the court is passive- and does nothing ” (Smith v. Clay, 3 Bro. C. C. 646; Tozier v. Brown, 202 Pa. 359), it is not necessary, in order to sustain the defense, to hold that the plaintiff is estopped by his action or inaction from suing at law for the invasion of his legal right. Therefore, even if it be conceded that the defendant here is not in position to assert that the plaintiff is estopped to maintain such action by his reception and retention of the price the defendant paid to the plaintiff’s assignee for benefit of creditors for the privilege of laying the pipes across his land (see eighth finding of fact), yet it must also be conceded that this is a pertinent and highly significant circumstance to be considered in determining whether he is entitled to equitable relief without tendering or offering to return the money. This and other facts embraced in the findings are pertinent because they tend to show the plaintiff’s acquiescence; and an important if not a principal factor in determining whether a plaintiff has been guilty of laches, is acquiescence: Hansell v. Downing, 17 Pa. Super. Ct. 235; 16 Cyc. of Law & Pro. 158. If, in addition to mere passive negligence, there be a showing of facts amounting to acquiescence in the act complained of, or of other circumstances which, coupled with the delay, will render the granting of the relief inequitable, the chancellor, in the exercise of sound discretion, will refuse to interfere: Stevenson v. Boyd, 153 Cal. 630; 19 L. R. A. (N. S.), 525. Acquiescence in the wrongful conduct of another, by which one’s rights are invaded, may often operate, upon the principle of and in analogy to estoppel, to preclude the injured party from obtaining many distinctively equitable remedies to which he otherwise would be entitled. This form of quasi estoppel does not cut off the party’s title nor his remedy at law; it simply bars his right to equitable relief, and leaves him to the legal actions alone: 2 Pomeroy’s Eq. Juris., sec. 817. A multitude of Pennsylvania cases might be cited to sustain the proposition. Many of them are collected in Good v. Queen’s Run Fire Brick Co., 224 Pa. 496, and that case itself is a good illustration of the proper application of the principle. But no case that can be cited better illustrates it than the one before us. This is well shown by the following excerpt from Judge Endlich’s opinion: “But here, under the facts found, the question is not one of mere lapse of time without change of conditions, and there can be no fair pretense of the existence of any adequate excuse or justification for plaintiff’s nonaction. The case is one of a plaintiff who, before anything important or permanent had actually occurred affecting his interests, possessed adequate knowledge of all that had already been done and all that was intended to be done, and had a clear standing and sufficient opportunity to proceed for the protection of his rights, but chose to he by until the price of the alleged privilege over his land had been paid by defendant and received by himself and the contemplated work completed and put into operation, as a part, of course, of a larger system, and who then for the first time comes into court with a prayer that all this be undone and broken up because in its inception without his express assent. It would seem very plain indeed that the obvious and only possible answer to this prayer must be that it comes too late to be granted. See Gt. West. Ry. Co. v. Oxford, etc., Ry. Co., 3 De G., M. & G. 341-359.” This succinct summary is warranted by the formal findings of fact and the evidence, and clearly indicates the equitable considerar tions which in the opinion of a majority of this court, justify the decree.

The assignment of errors are overruled, and the decree is affirmed at the costs of the appellant.  