                                    No.      12578

          I N THE SUPREME C U T O THE STATE O M N A A
                           OR    F           F OTN

                                          1974



HUGH R. ADAIR, 11, a d m i n i s t r a t o r o f t h e
E s t a t e of Hugh R. Adair, Deceased,

                            P l a i n t i f f and A p p e l l a n t ,



CAPITAL INVESTMENT COMPANY, a n expired
Montana Corporation, e t a l . ,

                            Defendants and Respondents.



Appeal from:       D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                   Honorable P e t e r G . Meloy, Judge p r e s i d i n g .

Counsel of Record :

      For Appellant :

             Daniel J. S u l l i v a n argued, Helena, Montana
             James R. Beck appeared, Helena, Montana

      For Respondents:

             Smith, Smith and Sewell, Helena, Montana
             Chadwick H . Smith argued, Helena, Montana



                                                Submitted:              May 20, 1974

                                                    Decided :       JuL 12 1974
Filed :   JUL 12 1974
PER CURIAM:

      This is an appeal by plaintiff Hugh R. Adair I1 as
administrator of the estate of Hugh R. Adair, from a portion
of a judgment rendered in a quiet title action.
      Plaintiff alleges that in 1947 Hugh R. Adair, late Justice
of the Montana Supreme Court, purchased certain real property
located in Helena, Montana.   However the identity of the party
furnishing the consideration for the purchase was never firmly
established.
      Included in the property purchased was a three-quarter
interest in Lots 9 through 16 in Block 35 of the C.W. Cannon
Addition to the city of Helena.
      After the lots were purchased, they were placed in the
name of Judge Adair's mother-in-law, Ruth L. Janes.   Mrs. Janes
subsequently received a deed to the property.
      No improvements were ever made on the lots and they were
rarely used except in the wintertime when the Judge would take
his young son, Hugh R. Adair 11, to the property for tobogganing
and skiing.
      Judge Adair personally paid the taxes on the property until
1969 when he suffered a severe stroke and was incapacitated.
Hugh R. Adair 11, his son, was then appointed as his guardian
and paid the taxes on the property as the guardian and later as the
administrator of the estate after Judge Adair died in 1971.
      In 1949, Ruth L Janes died intestate and left as her
                     .
heirs a son, Virgil Janes, and one daughter, Dorothy Nahrgang,
Jeanice Adair, another daughter of Ruth L Janes, had been the
                                         .
wife of Judge Adair and was the mother of Hugh R Adair 11, plaintiff
                                                .
in this action.   Jeanice Adair predeceased her mother,
      Virgil Janes died in 1970 and left as his heirs, his wife
Hazel Janes and two sons, Robert and Gary Janes, all of whom are
defendants in this action.    Prior to this action, Dorothy Nahrgang
transferred her interest in the property to Hugh R. Adair 11, so
her interest is not in dispute.
      Plaintiff Hugh R. Adair 11 brought a quiet title action
contending that a resulting trust had arisen in favor of Judge
Adair because of section 86-103, R.C.M.   1947, which states:
      "When a transfer of real property is made to
      one person, and the consideration thereof is
      paid by or for another, a trust is presumed to
      result in favor of the person by or for whom
      such payment is made. I I
Thus, plaintiff argues that a resulting trust had arisen in
favor of Judge A.dairand as the only heir he is entitled to the
property free from the claims of defendants, because Judge A,dair
had furnished the consideration for the purchase of the property
and placed the title to the property in the name of Ruth L Janes.
                                                          .
      In support of his claim plaintiff offered into evidence
a letter written by Judge Adair to the county commissioners of
Lewis and Clark County which protested the assessed value of
several parcels of property, including the property in dispute,
Defendants interposed a hearsay objection to this letter which
was sustained after memoranda were filed and arguments were heard,
      After making findings of fact and conclusions of law, the
district court held that no resulting trust had arisen because
the evidence was not "clear, convincing and satisfactory and
practically free from doubt", a requirement stated by this Court
in McQuay v. McQuay, 81 Mont. 311, 263 P 683.
                                        .
      The district court then entered judgment, a portion of
which granted Hugh R. Adair I1 an undivided two-thirds of an
undivided three-quarter interest in Lots 9 through 16 of Block
35 of the COW. Cannon Addition to the City of Helena.   The judgment
reflects plaintiff's one-third interest as an heir of &nice     Adair,
and a one-third interest as a result of the conveyance from Dorothy
Nahrgang.   The remaining one-third interest in the property was
q u b W in favor of Hazel Janes and her two sons, Gary and Robert.
      Plaintiff appeals from this judgment and presents three
issues to this Court for review:
      1.   Is plaintiff's claim barred by laches?
      2.   Did the district court err in holding that no resulting
trust had arisen in favor of Judge Adair?
      3.   Did the district court err in sustaining a hearsay
objection to the letter written by Judge Adair protesting the
assessed value of the property in dispute?
      We believe this case can be decided by a holding on the
issue of laches, therefore we will not discuss the second and
third issues.
      This Court has examined the equitable doctrine of laches
on numerous occasions, particularly in its application to attempts
to assert the existence of a resulting trust.    In Riley v.
Blacker, 51 Mont. 364, 370, 152 P. 758, this Court stated:
      "Laches, considered as a bar independent of the
      statute of limitations, is a concept of equity;
      it means negligence, in the assertion of a right;
      it is the practical application of the maxim,
      '~quity aids only the vigilant'; and it exists when
      there has been unexplained delay of such duration or
      character as to render the enforcement of the asserted
      right inequitable. Therefore has it often been held
      by this court that: While a mere delay short of the
      period of the statute of limitations does not of it-
      self raise the presumption of laches [citing cases], yet
     'good faith and reasonable diligence only can call into
      activity the powers of a court of equity, and, inde-
      pendently of the period fixed by the statute of limita-
      tions, stale demands will not be entertained or relief
      granted to one who has slept upon his rights. Considera-
      tions of public policy and the difficulty of doing justice
      between the parties are sufficient to warrant a court of
      equity in refusing to institute an investigation where
      the lapse of time in the assertion of the claim is such
      as to show inexcusable neglect on the part of the
      plaintiff, no matter how apparently just his claim may be; and
      this   is particularly so where the relations of the
      parties have been materially altered in the meantime. I
      [citing cases]. What constitutes a material change of
      condition has been the subject of much judicial discus-
      sion and some judicial dissension; but whatever doubt
      there may be as to other circumstances, it never has
      been questioned, to our knowledge, that the death of one
      of the parties to the transaction is such a change. It
      Riley is frequently cited to illustrate the proper applica-
tion of the doctrine of laches.   See:   Clary v Fleming, 60 Mont.
                                                .
246, 198 P. 546 (1921); First State Bank of Philipsburg v. Mussig-
brod, 83 Mont. 68, 271 P. 695 (1928); Lewis v. Bowman, 113 Mont. 68,
121 P.2d 162 (1942); Barrett v Zenisek, 132 Mont. 229, 241, 315
                              .
P.2d 1001 (1957); and Lowrance v. Gunderson, 157 Mont. 532, 487
        In Barrett an action was brought to establish a resulting
trust with respect to certain real property.       The district court
held the claim was barred by laches.        In affirming the district
court, this Court stated:
        "It has frequently been stated by this court that
        the doctzrine of laches is especially applicable
        in those cases where there has been a change of
        circumstances, or where the positions of the
        parties have been materially altered. This court
        has gone on to say that the death of one of the
        parties or a material witness is such a change of
        bar--laches. [citing cases7.
        position warranting the ap 1.ication of the equitable
                                    t t ,




        The rationale of Barrett is pertinent to the instant case.
Both of the principal parties to the disputed transaction are now
dead.    Ruth L. Janes died in 1949 and Judge Adair died in 1971.
Virgil Janes and Jeanice Adair, whose testimony might have
clarified the transaction, are also dead.       The death of these
parties clearly warrants the application of the equitable doctrine
of laches.
        Equity cannot be brought to the aid of those who have slept
on their rights for twenty-four years.       Considerations of public
policy and the difficulty of doing justice between the parties
require us to hold that the claim is barred by laches, especially
since the principal parties to the transaction are now dead and
facts relating to the transaction have been obscured through the
passage of time.
        Judgment is affirmed.
