Opinion
17970.
ARGUED SEPTEMBER 9, 1952.
DECIDED OCTOBER 14, 1952.
Cancellation. Before Judge Pharr. Fulton Superior Court. June 20, 1952.
Vester M. Ownby, for plaintiffs in error.
Frank Grizzard, Allison Pittard and John L. Respess Jr., contra.
1. "A grantor in a deed absolute in form but made to secure a debt, who remains in possession of the land conveyed, may, upon the payment of the debt, have the deed canceled as a cloud on his title." Blankenship v. Cochran, 151 Ga. 581 ( 107 S.E. 770); Askew v. Thompson, 129 Ga. 325 ( 58 S.E. 854); Spencer v. Schuman, 132 Ga. 515 ( 64 S.E. 466); Bashinski v. Swint, 133 Ga. 38, 39 ( 65 S.E. 152); Mercer v. Morgan, 136 Ga. 632 ( 71 S.E. 1075); Berry v. Williams, 141 Ga. 642 ( 81 S.E. 881); McNair v. Brown, 147 Ga. 161 ( 93 S.E. 289); Daniel v. Charping, 151 Ga. 34 ( 105 S.E. 465); Waller v. Dunn, 151 Ga. 181 ( 106 S.E. 93); Copelin v. Williams, 152 Ga. 692 (2) ( 111 S.E. 186); Paulk v. Dorminey, 154 Ga. 785 ( 115 S.E. 488); Sims v. Sims, 162 Ga. 523 ( 134 S.E. 308); Davis v. Akridge, 199 Ga. 867 ( 36 S.E.2d 102).
( a) Under the allegations of the petition in this case, the warranty deed was made to secure a debt, and the plaintiff has paid the loan which was secured by the deed.
2. "Laches will not be imputed to one in peaceable possession of property, for delay in resorting to a court of equity to establish his right to the legal title." Copelan v. Monfort, 153 Ga. 558, 568 ( 113 S.E. 514); Pavlovski v. Klassing, 134 Ga. 704, 705 (3) ( 68 S.E. 511); Smith v. Burrus, 139 Ga. 10 (2) ( 76 S.E. 362); Cowart v. Green, 194 Ga. 62 ( 20 S.E.2d 577).
( a) The plaintiff having been in peaceable possession of the property during all the period since his execution of the warranty deed to the ancestor of the defendants, his petition to have the deed canceled as a cloud upon his title is not barred by laches.
3. There being no administration upon the estate of the deceased grantee in the deed, the heirs are proper parties in an action to cancel the deed. Greenwood v. Starr, 174 Ga. 503, 504 (4) ( 163 S.E. 500).
4. The petition stated a cause of action, and the trial judge did not err in overruling the general demurrers.
Judgment affirmed. All the Justices concur.
No. 17970. ARGUED SEPTEMBER 9, 1952 — DECIDED OCTOBER 14, 1952.
J. W. Shirley brought an action against Mrs. Allene Shirley and others, as the sole surviving heirs at law of J. A. Shirley. It was alleged: On January 20, 1914, the plaintiff negotiated a loan of $800 from J. A. Shirley and executed and delivered to him as security a warranty deed to described lands, which was duly recorded. Along with the warranty deed, the plaintiff executed and delivered to J. A. Shirley a note for $800, due in twelve months. After the loan became due, the plaintiff secured a loan from Gordon Shirley, to repay J. A. Shirley, and on March 5, 1915, Gordon Shirley delivered his check for $800 to the plaintiff, which check was endorsed by the plaintiff and delivered to J. A. Shirley to repay the loan. J. A. Shirley delivered back to the plaintiff the warranty deed and note, but no cancellation of the returned deed was entered of record. In order to secure the loan of $800 made to the plaintiff by Gordon Shirley, the plaintiff executed and delivered to Gordon Shirley a deed to secure debt on the same land that was conveyed as security to J. A. Shirley on January 20, 1914. The loan was represented by a promissory note, which the plaintiff executed to Gordon Shirley along with the deed to him. The loan was repaid, and the deed to secure debt has been canceled of record. While the deed from the plaintiff to J. A. Shirley purported on its face to be a warranty deed, the purpose of the deed was to secure the loan of $800. Prior to the making of the deed by the plaintiff to J. A. Shirley, and continuously since that time, the plaintiff has been in possession of the property described in the deed to J. A. Shirley, and such possession has been public, exclusive, uninterrupted, peaceable, under a claim of right; and such possession has been evidenced by enclosures, cultivation, and actual occupation for more than forty years. During such time no one has ever questioned the plaintiff's right of possession and title. J. A. Shirley died on May 19, 1919, intestate. No administrator was appointed to administer upon his estate. The defendants are the sole surviving heirs at law of J. A. Shirley. They have refused to reconvey the land to the plaintiff.
The plaintiff prayed that the deed to J. A. Shirley be canceled as a cloud on his title.
The general demurrers of the defendants were overruled, and the exception is to that judgment.