Howard v. Boyce

Court of Appeals of North Carolina

Howard v. Boyce

217 S.E.2d 702, 26 N.C. App. 686, 1975 N.C. App. LEXIS 2135

CourtCourt of Appeals of North Carolina

DecidedAugust 6, 1975

DocketNo. 751SC121

StatusPublished

Cited by1 cases

This text of 217 S.E.2d 702 (Howard v. Boyce) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howard v. Boyce, 217 S.E.2d 702, 26 N.C. App. 686, 1975 N.C. App. LEXIS 2135 (N.C. Ct. App. 1975).

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Opinion

MARTIN, Judge.

[1]' Petitioner appellants contend that the court erred in holding that they had lost their right to set aside the 1945 judgment because of laches. Laches has been defined as “the negligent omission for an unreasonable time to assert a right enforceable in equity.” Builders Supplies Co. v. Gainey, 282 N.C. 261, 192 S.E. 2d 449 (1972). The trial court based its findings of laches on the theory that respondents had been prejudiced because since 1959, when the action was filed to remove the cloud from title, several of respondents’ potential witnesses had died.

In Howard v. Boyce, 254 N.C. 255, 118 S.E. 2d 897 (1961), the Court held that “ [o] n the question of laches the record before us shows nothing more than considerable lapse of time and is insufficient to support the finding ‘that the movants have been guilty of laches and unreasonable delay.’ ”

During the periods from 2 April 1959 to 24 February .1960, from 4 March 1965 to 2 March 1966, and from 14 March 1966 to the present, this case has been in litigation, and it cannot be said that petitioners were negligently failing to assert their rights during these periods. Nor can it be argued that petitioners are guilty of laches by waiting twelve days to file their motions after the decision in Howard v. Boyce, 266 N.C. 572, 146 S.E. 2d 828, was filed 2 March 1966. As for the period from 24 February 1960 to A March 1965, it does not appear that any potential and material witnesses for respondents had died and, thus, no prejudice resulted from delay during that time period. There can be no finding of laches when the adverse party has not been prejudiced. In re Miles, 262 N.C. 647, 138 S.E. 2d 487 (1964) ; East Side Builders v. Brown, 234 N.C. 517, 67 S.E. 2d [689]*689489 (1951) ; Hughes v. Oliver and Oliver v. Hughes, 228 N.C. 680, 47 S.E. 2d 6 (1948). Except for petitioner Frances Badham Howard, the record does not support the court’s finding that the action and delay of petitioners constitutes laches.

[2] Respondents contend that petitioners are guilty of laches by allowing Boyce to remain in possession of the property from 1945 to 1959 without seeking to eject him. A person cannot be guilty of laches in failing to seek relief promptly when he does not know of his right or need for relief. Speight v. Trust Co., 209 N.C. 568, 183 S.E. 784 (1936). The record does not show that petitioners, other than Frances Badham Howard, had knowledge that the 1945 judgment had been entered or that Boyce was in possession of their property until 1959. It is true, as respondents point out, that Penelope Overton consulted a lawyer about the case as early as 1951 and that L. Joseph Overton had been familiar with the property since 1945. However, they are not movants in this case.

For the reasons stated, the order of the superior court is affirmed as to Frances Badham Howard and reversed as to the other named movants.

Judges Clark and Arnold concur.

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MARTIN, Judge.

[1]' Petitioner appellants contend that the court erred in holding that they had lost their right to set aside the 1945 judgment because of laches. Laches has been defined as “the negligent omission for an unreasonable time to assert a right enforceable in equity.” Builders Supplies Co. v. Gainey, 282 N.C. 261, 192 S.E. 2d 449 (1972). The trial court based its findings of laches on the theory that respondents had been prejudiced because since 1959, when the action was filed to remove the cloud from title, several of respondents’ potential witnesses had died.

In Howard v. Boyce, 254 N.C. 255, 118 S.E. 2d 897 (1961), the Court held that “ [o] n the question of laches the record before us shows nothing more than considerable lapse of time and is insufficient to support the finding ‘that the movants have been guilty of laches and unreasonable delay.’ ”

During the periods from 2 April 1959 to 24 February .1960, from 4 March 1965 to 2 March 1966, and from 14 March 1966 to the present, this case has been in litigation, and it cannot be said that petitioners were negligently failing to assert their rights during these periods. Nor can it be argued that petitioners are guilty of laches by waiting twelve days to file their motions after the decision in Howard v. Boyce, 266 N.C. 572, 146 S.E. 2d 828, was filed 2 March 1966. As for the period from 24 February 1960 to A March 1965, it does not appear that any potential and material witnesses for respondents had died and, thus, no prejudice resulted from delay during that time period. There can be no finding of laches when the adverse party has not been prejudiced. In re Miles, 262 N.C. 647, 138 S.E. 2d 487 (1964) ; East Side Builders v. Brown, 234 N.C. 517, 67 S.E. 2d [689]*689489 (1951) ; Hughes v. Oliver and Oliver v. Hughes, 228 N.C. 680, 47 S.E. 2d 6 (1948). Except for petitioner Frances Badham Howard, the record does not support the court’s finding that the action and delay of petitioners constitutes laches.

[2] Respondents contend that petitioners are guilty of laches by allowing Boyce to remain in possession of the property from 1945 to 1959 without seeking to eject him. A person cannot be guilty of laches in failing to seek relief promptly when he does not know of his right or need for relief. Speight v. Trust Co., 209 N.C. 568, 183 S.E. 784 (1936). The record does not show that petitioners, other than Frances Badham Howard, had knowledge that the 1945 judgment had been entered or that Boyce was in possession of their property until 1959. It is true, as respondents point out, that Penelope Overton consulted a lawyer about the case as early as 1951 and that L. Joseph Overton had been familiar with the property since 1945. However, they are not movants in this case.

For the reasons stated, the order of the superior court is affirmed as to Frances Badham Howard and reversed as to the other named movants.

Judges Clark and Arnold concur.

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Bluebook (online)

217 S.E.2d 702, 26 N.C. App. 686, 1975 N.C. App. LEXIS 2135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-boyce-ncctapp-1975.

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