was within the concurrent jurisdiction of law and equity, if it was not purely legal. Id., at p. 274, 197 F.2d 383.
Mere lapse of time is not enough to establish laches. Defendant must show some prejudice thereby. The record shows none.
Assuming that the right of the defendant to recover on the debt has been barred by the statute of limitations, it does not follow that the defendant would be without the right to proceed to foreclose on the deeds of trust, for the period of limitation thereon had not elapsed. The sole possible loss, therefore, to defendant would be as to any deficiency in the event of foreclosure under the deeds of trust. This is theoretical, as there is no claim there would be a deficiency, and further, by bringing this action the plaintiffs have impliedly, at least, waived their right to assert the statute of limitations as to the notes should need come for action thereon. There is, however, no problem here, for the plaintiffs have conceded the indebtedness and right to proceed under the deeds of trust. Having come into equity to seek relief from the two documents purporting on their face to vest fee simple titles in the defendant by having them declared to be mortgages, it follows, under the equitable maxim that he who seeks equity must do equity, that the plaintiffs would be estopped to assert the statute of limitations as a bar to any deficiency.
Any possible prejudice resulting from the entry of defendant (as purported owner in fee of the two properties under consideration) into the agreements of April 27, 1960 (monthly tenancy agreement), and August 10, 1961 (agreement providing for monthly payments with right to have property deeded to tenant if payments for twenty months paid up to date), cannot be charged to plaintiffs. Furthermore, the record fails to disclose any facts from which it may be concluded that plaintiffs' failure to bring their action at an earlier date has worked to the prejudice of defendant.
Thus neither the defense of the statute of limitations nor laches constitutes a bar to the plaintiffs' action.
It follows, therefore, that the documents, which on their face purport to convey to the defendant fee simple titles to the two properties, should be declared to be mortgages.
The court finds further that an accounting should be had and that the plaintiffs are entitled to credit for all rents collected by defendant and all payments made by plaintiffs under the agreement of March 20, 1959, and the defendant to offset against such credits all payments made by him on the first trust notes and taxes with interest thereon from date of payment.
It is therefore, this 7th day of December, 1964,
Ordered (1) that the documents of March 20, 1959, insofar as they purport to grant fee simple titles to the two properties herein involved, be and the same are hereby cancelled, and further, that said documents be and the same are hereby declared to be mortgages, and (2) that an accounting be and the same is hereby granted in accordance with the formula hereinbefore set forth.
This memorandum may be used in lieu of findings of fact and conclusions of law.
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