Posted by Duane on 7/20/07

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Let's say (A) owns a number of properties. (A) has 2
siblings (B) and (C). Both (B) and (C) are married. (B)
has no children. (C)divorces but has 4 children. (C) dies
before (A), leaving the 4 children as heirs to 1/2 of
(A)'s Estate.
(A) places (B)'s name only, not spouse, on property Deeds
to hold in Trust for (A). (A) dies intestate and the
children of (C) file a Chancery Lawsuit against (B) to get
their rightful share of (A)'s Estate. All properties of
(A)'s estate were listed in the Chancery Suit and equally
divided to (B) and (C)'s children, except 1 remaining
parcel. (B), in a letter to (C)'s children, writes she
plans to have the remaining parcel surveyed and divided
into 2 parcels with Deeds made after a certain date. One
Deed for (B) and one Deed for (C)'s heirs.

(C)'s eldest, we'll call (D) here, buys out her siblings
interests and relocates to where (A)'s property is located
and assume control per Court records.

(B)and spouse moves out of state and fails to divide the
remaining parcel in accordance to her written statement.
(B) dies intestate, and by law, (B)'s spouse, (B1)then
takes the property. However, (B1) never files with court
any documentation of (B)'s death. (B1)never has (B)'s name
removed from property Deed. Further, (B1) fails to notify
the local government, in which the property is located, of
his mailing address to recieve tax bills. (B1) attempts to
sell the property outright 3 years after (B)'s death.

(D)finds out about (B1)'s attempt to sell property in
direct breach of (B)'s written agreement. (D)notifies
(B1), that she will get a Court order to block any attempt
by him to sell this property and file a lawsuit against
him. (D) verbally notifies (B1) that the property in
question, was purchased and owned by her grandfather (A).
(D) informs (B1) Open and Hostile, she is the true and
rightful owner of the property and intends to take it
outright. (B1) never denies nor refutes (D)'s claim. (B1)
never makes an official counter claim by filing a legal
notice to change (B)'s name on Deed, nor does (B1) pay the
property taxes to show his rightful claim.

25 years pass with no counterclaim, written or verbal
communication from (B1) to (D), nor does (B1) make any
official record changes at local government. (B)'s name
remains on Deed to this day, 32 years after her death. (D)
has been the caretaker, guardian and steward of the
property for 41 years, since (B)and(B1) relocated out of
state. Unknown to (D), (B1) had died 13 years after (B).
(D) was never notified of (B1)'s death.

(D) has been faithfully and lawfully paying the property
taxes on the property in question for the past 25 years.

(D) now seeks to get Adverse Possession of the property
and claims the common law doctrine of estoppel by
acquiescence that is applied when one party,(D) gives
legal notice (verbal) to a second party B1)of a fact or
claim, and the second party (B1) failed to challenge or
refute that claim within a reasonable time. The second
party (B1)is said to have acquiesced to the claim, and is
estopped from later challenging it, or making a
counterclaim.

(D) will assert that (B1)'s Silence is Aquiescence. That
where (B1)'s silence, for the 13 years of the Open notice
by (D)'s claim of rightful ownership of the property, up
to and upon (B1)'s death, meant that he accepted or
permited (D)'s acts without protest or claim thereby loses
rights to a claim of any loss or damage.

(D) intends to also invoke Estoppel by Laches as an
equitable defense, or doctrine, in an action at law. The
person invoking laches,(D)is asserting that an opposing
party (B1)has "slept on his rights", and that, as a result
of this delay, that other party (B1)is no longer entitled
to his original claim after (B)'s death.

Put another way, failure to assert one’s rights in a
timely manner can result in claims being barred by laches.
Laches is a form of estoppel for delay.

In Latin; Vigilantibus non dormientibus æquitas subvenit.
Equity aids the vigilant, not the negligent (that is,
those who sleep on their rights).

In most contexts, an essential element of laches is the
requirement that the party invoking the doctrine has
changed its position as a result of the delay. [(D)'s
claim that (B) failed to divide the property as agreed to
by after a certain date. That (B1) also failed to honor
the agreement.] In other words, the defendant is in a
worse position now than at the time the claim should have
been brought. For example, the delay in asserting the
claim may have caused a great increase in the potential
damages to be awarded; or assets that could earlier have
been used to satisfy the claim may have been distributed
in the meantime; or the property in question may already
have been sold; or evidence or testimony may no longer be
available to defend against the claim.

(D)'s claim and position for Adverse Posssesion is:

1 - It was Open and Notorious

2 - That possession is adverse and under the claim of
right.

3 - That in good faith, (D) believes she owns the property
as part of the original inheritance from (A)'s Estate.

4- (D) has possessed the property as a protective steward
continuous beyond the state statutory limit by paying the
property taxes. 25 years.

5 - (D)'s right to invoke Estoppel by Aquiescense and
Estoppel by Laches, Penalizes (B1) for sleeping on his
rights. (B1) failed to make any simple legal counterclaim
by changing (B)'s name on the Deed to reflect his. (B1)
paid no property taxes on said property after (B)'s death
that would prove his interest in the property, thereby
forfeiting and relinquishing his rights.

The evidence here is, by way of the original Chancery
Lawsuit of (A)'s Estate, that directly links (D) as a
rightful heir to the property in question, coupled with
the written letter of (B),stating her intent to divide the
property and failed to do so. (D)'s Open and Notorious
Claim of rightful ownership to (B1) after (B)'s death.
Plus (D)'s equitable interests as defense, in that she has
been paying the property taxes for 25 years on the
property in question.

Question; will (D) be able to make a sufficient claim and
legal right to Adversely Possess the property and get a
clear Title?

Re: Adverse Possession / Estoppel by Aquiescence, 11/06/07, by john.

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