
    NELSON v. WORTHINGTON.
    Equity ; Trust Funds ; Taxes ; Laches.
    1. Where, in 1876, in certain partition proceedings then pending
    it was agreed among the parties that a fund of $2,000 • ' should be retained by the trustees to pay taxes due upon the parcels of ground partitioned, and subsequently believing that all taxes had been paid, the trustees distributed among the parties in interest a balance of the fund remaining in their hands unexpended, it was heli, upon the petition of one of the parceners filed in 1888, that certain other assets of the estate were properly applicable to the payment of taxes due upon petitioner’s land which had been overlooked by the trustees.
    2. The question of laches is to be determined by the particular circumstances of each case in which it is raised.
    No. 76.
    Submitted April 3, 1894.
    Decided June 15, 1894.
    Hearing on cross-appeals from a decree of the Supreme Court of the District of Columbia, holding an equity term, ratifying and confirming, with certain modifications, a report of the auditor in partition proceedings.
    
      Reversed.
    
    
      The Court in its opinion stated the case as follows:
    The original bill in this cause was filed on the 17th day of February, 1869, for the partition of the real estate of which William Worthington died seized, among the devisees named in his will. Afterwards, such proceedings were had as that on the 26th day of May, 1876, the said real estate was practically partitioned between the several parties in interest, and such partition confirmed by the court. On the 14th day of February, 1888, Catherine L. Davis, one of the parties to the original bill, filed her petition in this cause, in which, after reciting the facts before mentioned more in detail, she avers that in the partition aforesaid, sublot 21 in square 74 in the city of Washington was allotted and conveyed to her son William L. Davis, and was afterwards conveyed to her; that at the time of such partition it was the design of the court, the trustees and the parties, that all taxes upon the several parcels of ground partitioned should be fully paid, and that more than $2,000 was left in the hands of the trustees with which to pay such' taxes, both general and special; that the trustees undertook to pay all of said taxes, and supposing that they had done so, subsequently distributed the balance of said fund among the parties in interest; that Susan G. Cox, one of said devisees and a party to this cause, had on the 10th day of November, 1880, filed her petition in this cause, showing that certain taxes upon the property which went to her in said partition, had not been paid by said trustees out of said fund, and praying that certain drawback certificates for taxes erroneously paid, to which the estate of William Worthington was entitled, might be collected and applied to the payment of the taxes upon her said property, which prayer was granted by the court on the 6th day of July, 1881.
    The petitioner, Mrs. Davis, states that, for the first time, within the three or four months preceding the date of filing her petition, she learned that said trustees had failed to pay certain taxes assessed and levied on said sublot 21, square 74, for the year 1875, amounting to $273.33, and an assessment for a footway amounting to $146.27, assessed in 1869, both sums bearing interest. She then avers that a certain lot of ground in square east of square 1015, belonging to the estate of said William Worthington, was not sold or partitioned by the trustees, but remained the property of the said estate, and that the court on the 14th day of November, 1887, ordered the same to be sold, and that the same is to be sold by said order of the court in this cause; and she prays that all taxes assessed against lot 21 in square 74 prior to the said partition may be paid out of the proceeds of the sale of said square east of square 1015.
    To this petition Mary W. Birnie, claiming to represent all the interest of her deceased mother as a devisee of William Worthington, alone answers, objecting to the allowance of the prayer, because the petitioner’s lot was at first conveyed not to her but to her son William L. Davis, and through him to others, so that the petitioner, though now seized of it, has not been continuously its legal owner; and, secondly, laches in not ascertaining the omission of the trustees to pay the taxes sooner. The said square east of square 1015 having been sold, the court referred the case to the auditor to state the account of the trustees making the sale and the proper distribution of the proceeds thereof.
    The auditor’s report shows that, “ By stipulation of the parties in the cause it was agreed that in the distribution of the proceeds of the recent sale, the right of Mrs. Davis to have her property relieved from these taxes should be submitted, and if allowed should be paid out of the said proceeds; and, by another stipulation, it was agreed that, in order to take advantage of the act of Congress allowing taxes to be,, paid with interest at six per cent, instead of the ordinary tax rate and penalties, Mrs. Davis might pay the taxes assessed against the said property without prejudice to her right to have the same allowed out of the proceeds of the sale.” And the auditor finds that accordingly Mrs. Davis paid said taxes on the first day of November, 1888. The auditor found the facts to be substantially as alleged in the petition of Mrs. Davis, and that she was entitled to the relief prayed therein, viz.:
    For amount of general taxes paid by her on lot 21, square 74, Nov. 1, 1888.$502.83
    Interest to December 1, 1891. 93-02
    Amount paid Birney & Birney for cancellation of special assessment . 114.69
    Deposit for costs of clerk and marshal in proceedings to cancel assessment. 12.00
    The auditor found that the special assessment on said lot 21 in square 74 had been canceled by a proceeding in the Supreme Court of the District of Columbia, and that the stipulated fee of $114.69 to Birney & Birney for doing this as attorneys, and $12 deposited for costs in that proceeding, had been paid and furnished by Mrs. Davis, and that she was entitled in equity to reimbursement of the same out of the proceeds then in the hands of the trustees for distribution.
    Mary W. Birnie excepted to so much of the report as is indicated by the following language:
    To “allowance to Mrs. Catherine L. Davis for general taxes (including interest then paid) paid in November, 1888, due in or about 1875 — $502.83, and additional interest, $93.02 — $595.85.
    “ Because of the great lapse of time and negligence of the claimant, when she knew of the taxes in person or by her agent, for which the lot in square 1015 could have been sold long before, thereby preventing an inequitable and unnecessary accumulation of interest, by reason of all which her claims are stale and barred.”
    On hearing said exception, the court in special term, on the 21st day of April, 1892, ordered, that in addition to the distributive share of exceptant Mary W. Birnie, as found by the auditor’s report, the trustees in this cause pay to her out of the proceeds of sale in his hands the sum of $18.60, being one-fifth of the interest allowed to Catherine L. Davis by said report upon the amount of general taxes 'paid by her; and, subject to the modification thus made, the report of the auditor was confirmed, and the trustee was directed to make distribution accordingly.
    From this decree Mary W. Birnie appealed, and Mrs. Davis appealed from so much as modified the report of the auditor.
    
      Mr. J. J. Waters for Mary W. Birnie.
    
      Mr. J. J. Darlington for Catherine L. Davis.
   Mr. Chief Justice Bingham,

of the Supreme Court of the District of Columbia, who sat with the court in the hearing of this cause in place of Mr. Justice Morris, delivered the opinion of the Court:

It will be perceived that the exception of Mary W. Birnie is based solely upon a claim of laches in Mrs. Davis, that she delayed the commencement of this proceeding unreasonably, and in support of such claim counsel cite Richards v. Mackall, 124 U. S., 183; Hammond v. Hopkins, 143 U. S., 224 ; Badger v. Badger, 2 Wall., 87 ; Wagner v. Baird, 7 Howard, 234 ; Gibbons v. Duley, 7 Mack., 320 ;

From a careful examination, we do not think the present case falls within the rulings in any of these cases. As stated in Hammond v. Hopkins, supra, in regard to laches, “ each case must be governed by its own circumstances.”

The original action of John L. Nelson et al. v. Lucy Worthington et al. was commenced in equity to secure the partition, or in a contingency, the sale of the real estate of William Worthington, deceased. As a result, in May, 1876, by the arrangement of the devisees named in the will of said Worthington, the most of the real estate was formally sold to them, but in such manner as that each devisee received a portion of such realty, and the sales so made were on that day confirmed by the court. The averment of Mrs. Davis in her petition that “as will appear by the report of the auditor filed in the cause on the third day of October, 1876, it was the design and intention of the court, the trustees and the parties, that all taxes upon the several parcels of ground so sold to or partitioned among the parties in interest should be fully paid, and that more than $2,000 was left in the hands of the trustees for that purpose, and that the trustees undertook to pay all the taxes out of said fund so reserved, and supposing they had done §0, subsequently distributed the balance ratably among the parties in interest,” is not denied.

This state of things seems to have been expressly recognized by all the parties in interest in the instance before mentioned of Mrs. Cox, when she petitioned for similar redress to that which Mrs. Davis now prays may be granted to her. The original suit in equity has been regarded as pending for the purpose of converting the property devised by William Worthington into money, and distributing it according to the equitable rights of the respective devisees; as is evidenced by the fact that no objection was made by any one to Mrs. Cox’s petition for relief, nor to that of the trustees to sell original lot 2 in square east of square 1015, nor indeed to the present petition of Mrs. Davis, because the proceeding in each instance was commenced by petition in original suit in equity numbered 1547.

The devisees having received from the trustees that portion of the fund which by their own arrangement should have been applied to the payment of the taxes on the realty which went to Mrs. Davis and had the use of the same ever since, cannot now be heard to say that they are injured by the appropriation of other assets belonging to the estate to pay such taxes.

There is no pretence that by reason of delay on the part of Mrs. Davis to ask for this relief that any injury results to any of the parties, except that it is claimed that interest has been accruing, and so they should at most only be required to pay the principal, and interest to such reasonable time after the distribution of the original fund as Mrs. Davis ought to have applied for the relief which she now asks for. The record shows that the delay to pay these taxes has in fact resulted to the benefit of all parties;

First, by a proceeding in certiorari prosecuted by Mrs. Davis after the filing of her petition herein by which a special assessment for $146.27, with penalties and accumulated interest, was adjudicated to be void.

Second, by the parties being enabled, by the passage of a recent act of Congress, to liquidate the regular taxes in arrears at six instead of ten per ce7it. interest without penalties, as they did by authorizing Mrs. Davis, by the stipulation before recited, to pay them.

We think there is no equitable ground for objection on the part of these devisees to granting the prayer of Mrs. Davis’ petition, and that the auditor rightly found that so much of the fund now under the control of the court as may be necessary for that purpose should be appropriated to refund to Mrs. Davis the money paid by her to liquidate the taxes, together with interest from the date she paid the same.

The special term erred in ordering the payment to the exceptant, Mary W. Birnie, the sum of $18.60, being the one-fifth of the interest allowed by the auditor to Catherine L. Davis, but correctly otherwise affirmed the auditor’s report. The auditor’s report should have been affirmed without modification.

The decree of the Supreme Court of the District of Columbia is reversed, with costs; and the cause remanded with direction to enter a decree affirming the auditor's report, and directing a distribution of the fund in accordance with its recommendations.  