1. Complainant seeks to have a trust impressed on certain real estate for which he bargained and paid the purchase price, the conveyance being to his wife. Held, that nothing short of certain, definite, reliable and convincing proof will justify relief and overcome the presumption of a gift of the land. The great lapse of time since the date of the conveyance has rendered impossible that degree of certainty.
2. Lapse of time alone is deemed to be sufficient ground of estoppel where the court cannot feel confident of its ability to ascertain the truth as well as it could when the subject for investigation was recent, and before the memories of those who had knowledge of the material facts have become faded and weakened by time; and to constitute estoppel of this description, it is not essential that any actual loss of testimony through death or otherwise, or means of proof or changed relations, to the prejudice of the other party, should be proved to have occurred.
3. In the present case the death of the bank officer who conducted the transaction, as well as the death of the wife who is charged with misconduct criminal in its nature — both deaths occurring after the transaction came to the knowledge of the complainant — renders impossible any impartial or reasonably accurate ascertainment of the facts which are the foundation of the relief (that a trust be impressed) sought as to the personalty.
PER CURIAM.
The decree under review should be affirmed.
Counsel for appellant argues in his brief that it is the settled rule of law in New Jersey, that laches will not be imputed to a husband merely from his failure to prosecute a suit against his wife during the continuance of the marital relation, and cites Bennett v. Finnegan, 72 N.J. Eq. 155; Alpaugh v. Wilson, 52 N.J. Eq. 424; affirmed, 52 N.J. Eq. 589; Yeomans v. Petty, 40 N.J. Eq. 495; Collins v. Babbitt, 67 N.J. Eq. 165, and other New Jersey decisions as well as decisions of the courts of other jurisdictions.
Counsel for appellant, quoting from the opinion of the learned vice-chancellor the two following sentences, to wit:
"But I would not be here understood as passing on the merits of this controversy. I base my decree upon the delay of complainant in seeking the relief which he now claims," insists that the vice-chancellor, disregarding these decisions, erroneously applied the technical doctrine of laches as between husband and wife.
We do not so read the opinion, and in affirming the decree of the court of chancery on the opinion of the vice-chancellor, we do not repudiate the doctrine enunciated in a long line of decisions of this court which hold that, based upon the public policy of preventing litigation between the husband and wife, mere delay on the part of one spouse in bringing an action against the other during the continuance of the marital state, does not constitute such "laches" as will deprive the injured spouse of his or her remedy against the other.
With this explanation we approve the opinion of the vice-chancellor and affirm the decree for the reasons expressed in that deliverance.
For affirmance — THE CHANCELLOR, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, BROGAN, VAN BUSKIRK, KAYS, DEAR, WELLS, KERNEY, JJ. 13.
For reversal — None.