has requested and demanded of the said defendants a statement and account of said copartnership transactions, which the said defendants have neglected and refused to give; and that he demanded of the said defendants that they deliver over all property due and owing, belonging or coming, to him as administrator of the estate of John A. Bell, deceased; and that they pay over to him as such administrator all sums of money as were due to the estate of John A. Bell, deceased, as his part of said partnership assets and property, which they have likewise failed to do." The prayer is for an accounting, and for general relief.

The court below sustained a demurrer to the complaint, and the plaintiff not amending, final judgment was entered in favor of the defendants. Two grounds are urged in support of the judgment. It is argued, in the first place, that the claim is barred by the statute of limitations; and in the second place, that the claim is so stale that a court of equity will refuse to enforce it.

1. In the view we take of the case, it is unnecessary to pass upon the first question. Assuming in favor of the plaintiff what we are inclined to think is true, viz., that the trust is not one of those implied trusts against which the statute runs, we think that so far as the claim for relief is founded upon the partnership transaction it is stale, and that a court of equity will not aid its enforcement.

This is a defense peculiar to courts of equity, and applies, although no statute of limitations governs the case. (Harwood v. Railroad Co., 17 Wall. 81; Sullivan v. Portland etc., 94 U. S. 811; Godden v. Kimmell, 99 U. S. 201; Sheldon v. Rockwell, 9 Wis. 181; S. C., 76 Am. Dec. 265; Harrison v. Gibson, 23 Gratt. 212; Stout v. Seabrook, 30 N. J. Eq. 189, 190; Matter of Neilley, 95 N. Y. 390; Groenendyke v. Coffeen, 109 Ill. 329; 2 Story's Eq. Jur., sec. 1520.) It is not the same thing as equitable estoppel, although it has been termed a quasi estoppel

(2 Pomeroy's Eq. Jur., secs. 816, 817); and hence the rules governing equitable estoppel (see Boggs v. Merced Mining Co., 14 Cal. 279) do not apply. The ground of the doctrine was stated by Taney, C. J., delivering the opinion of the Supreme Court of the United States in McKnight v. Taylor, 1 How. 168, as follows: "We do not found our judgment upon the presumption of payment, for it is not merely on presumption of payment, or in analogy to the statute of limitations, that a court of chancery refuses to lend its aid to stale demands. There must be conscience, good faith, and reasonable diligence to call into action the powers of the court. In matters of account, where they are not barred by the act of limitations, courts of equity refuse to interfere after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice when the original transactions have become obscure by time, and the evidence may be lost."

The principal foundations of the doctrine are acquiescence and lapse of time. But other circumstances will be taken into consideration. Thus it is a material circumstance that the claim was not made until after the death of those who could have explained the transaction. (See Mooers v. White, 6 Johns. Ch. 360; Barnes v. Taylor, 27 N. J. Eq. 259; German-American Seminary v. Kiefer, 43 Mich. 111; Bolton v. Dickens, 4 Lea, 577; Hatcher v. Hall, 77 Va. 578.) So it has been held that a change in the value and character of the property may be material. (Bliss v. Prichard, 67 Mo. 187; Allen v. Allen, 47 Mich. 79.) But as stated by Davis, J., in McQuiddy v. Ware, 20 Wall. 19, "there is no artificial rule on such a subject, but each case as it arises must be determined by its own particular circumstances." In other words, the question is addressed to the sound discretion of the chancellor in each (Brown v. County of Buena Vista, 95 U. S. 160; Rayner v. Pearsall, 3 Johns. Ch. *586; Landrum v. Union Bank, 63 Mo. 56.)

case.

The following decisions are instances of the application of the rule to facts similar to the facts of the case under consideration. In Groenendyke v. Coffeen, 109 Ill. 339, which was a suit by the heirs of the deceased partner for an accounting, it was held that a delay of sixteen years rendered the claim stale. In Codman v. Rodgers, 10 Pick. 119, which was a suit for an accounting brought by the representatives of the deceased partner against the representatives of the surviving partner, it was held that a delay of seventeen years rendered the claim stale. In Harris v. Hillegas, 66 Cal. 79, which was a similar case, it was held that a delay of somewhat over twenty years rendered the claim stale. And like decisions were made. in Ray v. Bogart, 2 Johns. Cas. 432, and Harlow v. Lake Superior Company, 41 Mich. 584. And in McEwin v. Gillespie, 3 Lea, 205, which was a similar case, it was held that a delay of twenty-one years rendered the claim stale.

Now, in the present case, the complaint does not allege that the heirs of John A. Bell had not knowledge of the proceedings of William M. Bell, or that there was any impediment to their action, and consequently it must be presumed that they had such knowledge, and that there were no such impediments. (Marsh v. Whitmore, 21 Wall. 184, 185; McQuiddy v. Ware, 20 Wall. 19; Harwood v. Railroad Co., 17 Wall. 81.) Such being the case, we think that the fact that they delayed the assertion of their claim until the death of the surviving partner, a period of twenty-five years, is sufficient to make their claim stale.

It is contended, however, that this question cannot be raised on demurrer. But the preponderance of authority (and we think the better reason) is to the effect that it can. (Landsdale v. Smith, 106 U. S. 392; Bliss v. Prichard, 67 Mo. 189, 190; Shorter v. Smith, 56 Ala. 210.) The defense is, in substance, that the bill does not

LXXIII. CAL.-19

show equity; or in the language of our statute, that the complaint does not state facts sufficient to constitute a cause of action. This is a ground of demurrer under our system.

We think, therefore, that so far as the claim for relief is founded on the partnership transactions a court of equity will not enforce it.

2. But the complaint alleges that the real property "has at all times since the same was acquired and still does stand in the names of said partners, John A. and William M. Bell." Does this, in connection with the other allegations, state a cause of action of any kind? We think not. The action cannot be considered as for partition between co-tenants because the administrator is not a co-tenant, and cannot bring such an action. (Freeman on Cotenancy and Partition, sec. 454.) It cannot be treated as an action of ejectment between co-tenants, because what is alleged does not amount to an averment of ouster (Carpentier v. Webster, 27 Cal. 561; Carpentier v. Mendenhall, 28 Cal. 487; S. C., 87 Am. Dec. 135); and it cannot be treated as an action for mesne profits, because (if for no other reason) there is no averment that the use of the land was of any value.

We see no aspect in which the complaint states a cause of action; and we therefore advise that the judgment be affirmed.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

[No. 11843. Department Two.—August 30, 1887.]

WILLIAM J. WARDER, APPELLANT, V. WILLIAM ENSLEN, REspondent.

BY

MORTGAGE-DEED ABSOLUTE IN FORM-REDEMPTION-POSSESSION MORTGAGEE—ADVERSE POSSESSION.-In August, 1874, the plaintiff, for the sole purpose of securing an indebtedness due from him to the defendant, executed to the latter a deed, absolute in form, of the land in controversy. Simultaneously with the execution of the deed, the parties entered into an agreement by which the defendant promised that whenever the plaintiff could sell the land for a sum sufficient to pay the indebtedness, and should pay the same, he would reconvey the land, and the plaintiff promised upon his part that whenever he could sell the land for such amount he would do so, upon the demand of the defendant, and would pay the indebtedness and redeem the land. It was further mutually agreed that until such redemption the defendant should have the use and occupation of the land in lieu of interest on the indebtedness. pursuance of this agreement, the defendant entered and has since been in possession of the premises. The plaintiff never made any effort to sell the land, although at any time after January, 1879, it would have sold for enough to pay the indebtedness, and the defendant never demanded that he should sell or redeem. On the 22d of January, 1885, the plaintiff offered to redeem the land, but the defendant refused. The present action is brought for a redemption. Held, that the defendant, having entered into the possession under the deed and agreement, exclusive of any other right, his possession did not become adverse to the plaintiff prior to his refusal of the offer to redeem.

In

ID.-STATUTE OF LIMITATIONS-RIGHT OF REDEMPTION WHEN BARRED.— Under section 316 of the Code of Civil Procedure, the right of a mortgagor to redeem against the mortgagee in possession is not barred, unless the latter has continuously maintained an adverse possession of the mortgaged premises for five years after the breach of some condition of the mortgage.

FINDINGS CONFLICT IN-SPECIFIC CONTROL GENERAL.-Where there is a discrepancy between specific findings of particular facts, and findings that are general in their nature, the former must control.

APPEAL from a judgment of the Superior Court of Stanislaus County.

The facts are stated in the opinion of the court.

B. McKinne, Kittrell & Maddux, B. T. Rawlins, and W. H. Beatty, for Appellant.

Wright & Hazen, and W. L. Dudley, for Respondent.