Chief Justice Hayt
delivered tlie opinion of tlie court.
The fee simple title to the property in controversy being in the defendants by patent from the United States government, the plaintiff cannot recover upon his first cause of action, unless he succeeds in establishing the second.
A recovery upon the second cause of action was denied by the district court for the reason that, in the opinion of that court, a lien was established against the' property by the attachment proceedings having priority over the lien created by the trust deed. In this court objection is made to the sufficiency of the second cause of action, upon the ground that the plaintiff being out of possession cannot maintain the action under the code provision with reference to determining an adverse claim, estate or interest in the property. It has been held, however, by this' court, after careful consideration, that where one out of possession can assert only an equitable title, he may have his equitable remedy. Stock-Growers’ Bank v. Newton, 13 Colo. 245; Mulock v. Wilson, 19 Colo. 296.
In this suit, as in the previous ones, it is urged by plaintiff in error that the Perkins and Moynahan judgments were void because there was no proper service upon The Great West Mining Company. This question was, however, put at rest by the last opinion filed in the case. It is there said:
“As a rule, a judgment of a court of general jurisdiction is not void unless it appears from the record itself that the court in pronouncing it acted without jurisdiction. A judgment rendered without bringing the defendants into court is not for this reason void, but voidable only, unless the failure to obtain jurisdiction over them appears from the record.
“ That this distinction has been kept constantly in mind [315]*315by this court is quite apparent from the qualification expressed in each instance in which the judgments are alluded to in the former opinions of this court as being ‘absolute nullities’ under certain conditions.
“ The proceedings being regular upon the record, the judgments can only be avoided upon extraneous evidence.” G. W. M. Co. v. W. of A. M. Co., 14 Colo. 90, pp. 103-104. And it was held that plaintiff had been guilty of such laches as precluded it from introducing such evidence.
It is to be borne in mind that the record shows ‘personal service in the one case and appearance by attorney in the other, and as the same evidence upon the question of the character of the judgments is now before us as in the former case, the conclusion in this case, as in that, must be that the judgments are not absolutely void. This result necessarily follows, irrespective of any question as to whether or not the former decision is res adjuclicata in this case.
Has the present plaintiff the right to contest these judgments rendered against his grantor, the grantor itself having forfeited and lost the right by reason of its laches ? In the Great West Case the plaintiff was shown to have had notice of the fraud complained of for a little more than two years before instituting suit, and it was held for this reason that the courts should refuse relief. The laches that will bar a recovery in a particular case depend to a large extent upon the character and nature of the circumstances surrounding the transaction. Where the subject-matter of the litigation is unpatented mining property, purely speculative in value, the necessity for prompt assertion of title has always been recognized by the English and American courts. See G. W. M. Co. v. W. of A. M. Co., supra, and cases cited. In this case both the trustee and the bondholders, as it is claimed, were chargeable with laches, with full knowledge of all the facts, which should preclude a recovery.
From the record it appears that one McBride commenced a suit as early as 1884, to subject the property to his claim. In that suit, Strickler, the trustee for the bondholders, was [316]*316made a party, and in his answer admitted that McBride had a prior lien and consented to a decree for complainant. 33 Fed. Rep. 402. And this constitutes one of the sources of title under which defendants now hold. Nothing more was attempted by the trustee until 1892, when he commenced a foreclosure suit upon his trust deed. In this suit he obtained a decree of foreclosure, but as the deed gave him power to sell, the suit was unnecessary. During all these years the interest upon the bonds was in default, and by the terms of the trust deed the trustee was authorized to sell for any failure to pay the interest as it fell due, and yet for eight years he allowed the matter to rest. During this time, the defendants defended many suits involving the title to the property, procured patents from the United States, and by an expenditure made by them and their grantors the mine was reclaimed from its worthless condition and put upon a paying basis.
At one time a block of these bonds of a par value of $10,000 was sold for about $3,000, and the money used to prosecute the suit instituted by The Great West Mining Company against The Woodmasof Alston Mining Company. The facts upon- which plaintiff now relies to impeach the judgment and sales were well known to all parties as early as 1884, and in 1886, Whitaker brought suit on behalf of himself and other bondholders, setting up these facts, and made application for an injunction against the defendants and for the appointment of a receiver. In these applications he was defeated, and thereupon abandoned the suit.
In the same year a similar suit was brought by William Needham and other bondholders, in the circuit court of the United States in and for the district of Colorado, against the defendants. In this suit the issuance of bonds aggregating the sum of $50,000 was alleged to have been made by The Great West Mining Company, on or about the 15th day of February, 1883; that the same were secured by trust deed upon the property in controversy; that said Needham and others were the owners and holders of said bonds. It was further alleged that the judgments rendered in favor of [317]*317Gwynne and Moynahan and the sales made thereunder were fraudulent and void. The plaintiffs prayed that such judgments and sales be declared fraudulent and void, and for an accounting. Various proceedings were had in that suit, but the suit was finally dismissed some time in 1891.
It is alleged, however, that the bondholders could not be guilty of laches until after the principal of the bonds fell due, and that laches cannot be imputed to them unless they failed to act within a reasonable time thereafter. We do not think this contention is well founded when applied to the facts in this case. Defendants have a perfect record title to the property. No fraud is shown upon their part. The title dated back and took priority to the issuance of the bonds in question. As we have seen, the property conveyed was unpatented mining property, purely speculative in value. The purchasers made the property valuable as the result of their hazard and enterprise, and as soon as the value had been established their title was contested to an extent that is seldom paralleled. For ten years they have been called upon to defend their title against a multitude of claimants, attracted by the value given the property as the result of the enterprise and expenditure of defendants and their grantors, and eventually procured patents to the property from the United States.
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Chief Justice Hayt
delivered tlie opinion of tlie court.
The fee simple title to the property in controversy being in the defendants by patent from the United States government, the plaintiff cannot recover upon his first cause of action, unless he succeeds in establishing the second.
A recovery upon the second cause of action was denied by the district court for the reason that, in the opinion of that court, a lien was established against the' property by the attachment proceedings having priority over the lien created by the trust deed. In this court objection is made to the sufficiency of the second cause of action, upon the ground that the plaintiff being out of possession cannot maintain the action under the code provision with reference to determining an adverse claim, estate or interest in the property. It has been held, however, by this' court, after careful consideration, that where one out of possession can assert only an equitable title, he may have his equitable remedy. Stock-Growers’ Bank v. Newton, 13 Colo. 245; Mulock v. Wilson, 19 Colo. 296.
In this suit, as in the previous ones, it is urged by plaintiff in error that the Perkins and Moynahan judgments were void because there was no proper service upon The Great West Mining Company. This question was, however, put at rest by the last opinion filed in the case. It is there said:
“As a rule, a judgment of a court of general jurisdiction is not void unless it appears from the record itself that the court in pronouncing it acted without jurisdiction. A judgment rendered without bringing the defendants into court is not for this reason void, but voidable only, unless the failure to obtain jurisdiction over them appears from the record.
“ That this distinction has been kept constantly in mind [315]*315by this court is quite apparent from the qualification expressed in each instance in which the judgments are alluded to in the former opinions of this court as being ‘absolute nullities’ under certain conditions.
“ The proceedings being regular upon the record, the judgments can only be avoided upon extraneous evidence.” G. W. M. Co. v. W. of A. M. Co., 14 Colo. 90, pp. 103-104. And it was held that plaintiff had been guilty of such laches as precluded it from introducing such evidence.
It is to be borne in mind that the record shows ‘personal service in the one case and appearance by attorney in the other, and as the same evidence upon the question of the character of the judgments is now before us as in the former case, the conclusion in this case, as in that, must be that the judgments are not absolutely void. This result necessarily follows, irrespective of any question as to whether or not the former decision is res adjuclicata in this case.
Has the present plaintiff the right to contest these judgments rendered against his grantor, the grantor itself having forfeited and lost the right by reason of its laches ? In the Great West Case the plaintiff was shown to have had notice of the fraud complained of for a little more than two years before instituting suit, and it was held for this reason that the courts should refuse relief. The laches that will bar a recovery in a particular case depend to a large extent upon the character and nature of the circumstances surrounding the transaction. Where the subject-matter of the litigation is unpatented mining property, purely speculative in value, the necessity for prompt assertion of title has always been recognized by the English and American courts. See G. W. M. Co. v. W. of A. M. Co., supra, and cases cited. In this case both the trustee and the bondholders, as it is claimed, were chargeable with laches, with full knowledge of all the facts, which should preclude a recovery.
From the record it appears that one McBride commenced a suit as early as 1884, to subject the property to his claim. In that suit, Strickler, the trustee for the bondholders, was [316]*316made a party, and in his answer admitted that McBride had a prior lien and consented to a decree for complainant. 33 Fed. Rep. 402. And this constitutes one of the sources of title under which defendants now hold. Nothing more was attempted by the trustee until 1892, when he commenced a foreclosure suit upon his trust deed. In this suit he obtained a decree of foreclosure, but as the deed gave him power to sell, the suit was unnecessary. During all these years the interest upon the bonds was in default, and by the terms of the trust deed the trustee was authorized to sell for any failure to pay the interest as it fell due, and yet for eight years he allowed the matter to rest. During this time, the defendants defended many suits involving the title to the property, procured patents from the United States, and by an expenditure made by them and their grantors the mine was reclaimed from its worthless condition and put upon a paying basis.
At one time a block of these bonds of a par value of $10,000 was sold for about $3,000, and the money used to prosecute the suit instituted by The Great West Mining Company against The Woodmasof Alston Mining Company. The facts upon- which plaintiff now relies to impeach the judgment and sales were well known to all parties as early as 1884, and in 1886, Whitaker brought suit on behalf of himself and other bondholders, setting up these facts, and made application for an injunction against the defendants and for the appointment of a receiver. In these applications he was defeated, and thereupon abandoned the suit.
In the same year a similar suit was brought by William Needham and other bondholders, in the circuit court of the United States in and for the district of Colorado, against the defendants. In this suit the issuance of bonds aggregating the sum of $50,000 was alleged to have been made by The Great West Mining Company, on or about the 15th day of February, 1883; that the same were secured by trust deed upon the property in controversy; that said Needham and others were the owners and holders of said bonds. It was further alleged that the judgments rendered in favor of [317]*317Gwynne and Moynahan and the sales made thereunder were fraudulent and void. The plaintiffs prayed that such judgments and sales be declared fraudulent and void, and for an accounting. Various proceedings were had in that suit, but the suit was finally dismissed some time in 1891.
It is alleged, however, that the bondholders could not be guilty of laches until after the principal of the bonds fell due, and that laches cannot be imputed to them unless they failed to act within a reasonable time thereafter. We do not think this contention is well founded when applied to the facts in this case. Defendants have a perfect record title to the property. No fraud is shown upon their part. The title dated back and took priority to the issuance of the bonds in question. As we have seen, the property conveyed was unpatented mining property, purely speculative in value. The purchasers made the property valuable as the result of their hazard and enterprise, and as soon as the value had been established their title was contested to an extent that is seldom paralleled. For ten years they have been called upon to defend their title against a multitude of claimants, attracted by the value given the property as the result of the enterprise and expenditure of defendants and their grantors, and eventually procured patents to the property from the United States. The litigation was notorious, and the facts now relied upon must have been within the knowledge of all the parties. Under these circumstances, it would be unjust and inequitable to allow the plaintiff to maintain this action.
In the original suit brought by The Great West Mining Company, a period of delay of less than two years was held sufficient to.bar a recovery. Under the most favorable view of the evidence, the plaintiff in this suit had been guilty of a delay of six years, and, under a view which the evidence warrants, he has been guilty of delay for a much longer time.
The Great West Case was cited with approval in the recent case of Johnston v. Standard Mining Company, 148 U. S. 360, and in speaking of the necessity of diligence in actions of this character involving the title to mines where the property [318]*318has been developed and its value established by the enterprise of others, the court says :
“ Under such circumstances, where pi’operty has been developed by the courage and energy and at the expense of the defendants, courts will look with disfavor upon the claims of those who have lain idle while awaiting the results of this development, and will require not only clear proof of fraud, but prompt assertion of plaintiff’s rights.”
The delay that barred a recovery in that case was trivial compared with that in this case. In fact, a stronger case for the interposition of the doctrine of equitable laches can seldom be found.
The judgment of the district court will be affirmed.
Affirmed.