Opinion of the Court. testified that she was afraid she would not recommend any one to trust her memory twenty years back; and that as to the deed, she still did not recollect anything but the one deed, and yet she might have signed another. She had also completely forgotten her knowledge of the existence of the deed of January 28, 1864, to Mr. Ingle, to which she had referred in her letter of 1873, and which the record in the recorder's office showed had been delivered to the beneficiary in May, 1864. We understand it to be conceded that when the evidence was taken in this suit both of the justices of the peace before whom the deed of 1860 was acknowledged, as is admitted by the bill, were dead; and, in the absence of evidence of fraud or collusion on their part, their certificate ought to prevail. Mrs. Hammond stated in her answer, upon information and belief, that this deed of 1860, though absolute on its face, was availed of by her father solely as a security and for the protection of his brother, the said William M. S., who was addicted to intoxication, and that the full share of William M. S. in the estate of his father was duly accounted for and paid to him. In the settlement of March 28, 1865, William's share, namely, $2667.60, was receipted for by John S., the latter presumably claiming the power to do this by virtue of William's deed to him. On March 29, 1865, William was credited with $2667.60 in an account opened before that time in a book kept by George W. and John S., and that account showed that there was paid to him, on or before June 5, 1865, in instalments, the aggregate sum of $2667.60, after deducting $1641.01, made up of $1579.49 due John S. and $61.52 for bill of furniture. On December 2, 1873, William receipted for $503.29, his share of the purchase money from the Mix lots, and in full of any or all demands to date. This amount is shown on the same account, and is made up of nine items of cash paid him, commencing with January 6, 1872, and closing with December 2, 1873. This was not a bill to set aside the deed, nor is it framed in the aspect of repudiating the payments to William as made in fraud of his wife. We do not care to comment upon the testimony of William in this Opinion of the Court. connection. We think complainants failed to make out their charges of fraud, and that apart from that, the defence of laches interposes an insuperable bar to contention upon this subject. We perceive no adequate reason given for the delay in the attack upon this deed, nor in respect of the proceeds of the Mix lots, nor in the assault upon the account stated and settled in the orphans' court in 1865. We fail to find any ground assigned for the ignorance of plaintiffs of the proceedings upon the executors' accounting, or why they received and receipted for their distributive shares as determined thereby. Indeed, all the matters relied on to justify the imputation of fraud were known or could have been known to the plaintiffs just as well at the time when they transpired as when the bill was filed. No facts are shown of which plaintiffs were ignoNo discovery was made which might not have been made during the nineteen years. It is true that the children of John Hopkins had confidence in their brother and uncle; but as for nearly twenty years they apparently saw no reason for believing that that confidence had been misplaced, it would require much more convincing evidence than this record affords to justify the conclusion that they had been in fact the victims of imposition. Indeed, we do not understand the testimony of the survivors as affirmatively questioning the integrity of the trustees. rant. Mr. Justice Merrick, in his well considered opinion in this case, after saying that "the question then reduces itself to the naked question whether the doctrine of a court of chancery, with regard to the necessity of the repose of society, is not sufficient to prevent the opening of this inquiry under these circumstances," proceeds to examine the two classes of cases to which the doctrine is applied, that of constructive fraud in the dealing by a trustee with the subject of the trust through an intervening person for the acquisition of the legal title, and that of actual fraud and concealment, and points out the greater liberality in respect of lapse of time in the latter class than in the former. Where there is no fraud in fact, he Bays: Opinion of the Court. “If the party, in view of all the facts of the case, has slept upon his rights, a court of chancery will not intervene; and in measuring laches there are two extremely important considerations always taken notice of by a court of chancery, which limit and narrow the measure of time which otherwise would be liberal. Where there has been no change of circumstances between the parties and no change with reference to the condition and value of the property, a court of chancery will run very nearly if not quite up to the measure of the statute of limitations as applied in analogous cases in a court of law. But where there has been a change of circumstances with reference to the parties and the property, and still more where death has intervened, so that the mouth of one party is closed, and those who represent his interests are not in a predicament to avail of the explanations which he might have made, out of the charities of the law and in consideration of the fact that fraud is never to be presumed, but must always be proved and proved clearly, the courts limit very much, in such cases, the measure of time within which they will grant relief, because the presumption comes in aid of the dead man, that he has gone to his account with a clear conscience. In this case one of these trustees, the survivor, remained in active life and energy for nineteen years after the alleged technical fraud is supposed to have been committed. There was no challenge, during that time, of the transaction. Had there been the law has a right to presume, and does presume, that he would have had opportunities of explaining these transactions and vindicating himself, which opportunities are now lost. The counterpresumption now arises, that there has been delay with a view to have the undue advantage of evidence on one side no longer capable of explanation on the other. "This is this case stripped of all the surroundings with reference to it, stripped of all the imputations and suspicions piled one upon another with artful ingenuity, arising out of a number of minute circumstances, no one of which has in itself, apart from others, any significance. The effort has been made, I say, under such circumstances, to impute fraud. "But it is very remarkable that, while the circumstances of VOL. CXLIII-18 Opinion of the Court. themselves do not carry any persuasive evidence of fraud to the trained judicial mind, the parties themselves who are impeaching the transaction, the surviving children who had knowledge of what occurred, in their evidence in this cause and under all the temptations to strain or overtop their testimony do not to-day impute any actual malversation to either of the trustees. The utmost they say is that if they have rights they want them. They never did call in question, in the lifetime of the trustees, the integrity of the trustees: they do not affirmatively call it in question to-day. They simply say, at the uttermost, that if they have rights, as has been suggested to them, in regard to the possibilities of a legal administration of a trust in the manner in which I have stated, they want those rights. Now, under all these circumstances, with all this lapse of time, with all the knowledge they had then and there while the transactions were fresh, with all the temptations now in their own minds to pervert the facts, there is no one of those who are at all reliable in testimony and I do not include W. M. S. Hopkins in this remark who ventures to impute actual fraud to the trustees whose estates they are now calling in question." We concur in these views. In all cases where actual fraud is not made out, but the imputation rests upon conjecture, where the seal of death has closed the lips of those whose character is involved, and lapse of time has impaired the recollection of transactions and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence. The hour-glass must supply the ravages of the scythe, and those who have slept upon their rights must be remitted to the repose from which they should not have been aroused. The decree is reversed, and the cause remanded, with direc tions to dismiss the bill. Statement of the Case. THE BARBED WIRE PATENT.1 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA. No. 128. Argued December 16, 17, 1891. — Decided February 29, 1892. The invention secured to Joseph F. Glidden by letters patent No. 157,124, dated November 24, 1874, for an improvement in wire fences, involved invention, and the patent therefor is valid. Courts incline to sustain a patent to the man who takes the final step in the invention which turns failure into success. When an unpatented device, the existence and use of which are proven only by oral testimony, is set up as a complete anticipation of a patent, the proof sustaining it must be clear, satisfactory and beyond a reasonable doubt. THIS was a bill in equity for the infringement of letters patent No. 157,124, issued to Joseph F. Glidden, November 24, 1874, for an "Improvement in Wire Fences." In his specification the patentee stated that "this invention has relation to means for preventing cattle from breaking through wire fences; and it consists in combining, with the twisted fencewires, a short transverse wire, coiled or bent at its central portion about one of the wire strands of the twist, with its free ends projecting in opposite directions, the other wire strand serving to bind the spur-wire firmly to its place, and in position, with its spur-ends perpendicular to the direction of the fence-wire, lateral movement, as well as vibration, being prevented. It also consists in the construction and novel arrangement, in connection with such a twisted fence-wire and its spur-wires, connected and arranged as above described, of a twisting key or head-piece passing through the fence-post, carrying the ends of the fence-wires, and serving, when the spurs 1 Three appeals relating to this patent taken from decrees of the Circuit, Court for the Northern District of Iowa, were consolidated and argued together, viz.: No. 128, Washburn & Moen Manufacturing Company v. The Beat 'em all Barbed Wire Company; No. 129, Same v. Norwood ; and No. 130, Same v. Wiler. |