delivered the opinion of the court.
It is insisted on the part of the defendants in error that in the entry of the decree sustaining their demurrer to the bill of complaint no error was committed, in that, as they contend laches appears on the face of the bill; that the delay of complainant in filing her bill is of such a character as to preclude recovery in a court of equity. We are unable to agree with this contention. It appears that during all the time which elapsed between the execution of the deed charged to have been fraudulently obtained, and the filing of the bill, complainant was not only ignorant of the fact that she had executed such a deed, but was also in undisturbed possession of the premises. It is said in Hall v. P. & E. Ry. Co., 143 Ill. 163-171:
“ Laches can not be imputed to a party who is in possession of the property in dispute under a contract for a deed, as the railroad company was in this case. There was no necessity for bringing a bill for relief until the appellant created the necessity by bringing an action to recover the possession of the property.”
The principle thus stated is applicable in the present case. For the purposes of the demurrer, statements of fact properly pleaded are admitted by the defendants to be true, and there was no laches in failing to question by bill for relief the validity of a deed of which complainant had no knowledge, which purported to convey premises of which she was in undisputed possession until defendants in error created such a necessity -by attempting to assert their alleged title under said deed.. [Nothing appears on the face of the bill from which any presumption arises that the brewing company has been inequitably or unjustly prejudiced by the delay in bringing suit to set aside the alleged deed, and as to the other defendants they are to be deemed charged with notice of any just claims of the occupants of the premises. There has been in this case no acquiescence on the part of complainant in the assertion of any adverse right by the defendants, and no sleeping upon rights which ought to have been asserted at the earliest practical moment after discovery of the fraud. It appears that at once on making such discovery, plaintiff in error took steps to avoid the deed to premises of which she had up to about that time been in undisputed possession.
It is urged that complainant should' have appealed or sued out a writ of error from the order of the Circuit Court dismissing her original bill, instead of refiling her bill in the Superior Court as a poor person. But in this it does not so far appear that defendants were in any way prejudiced. They were fully advised of her contention, and so far as appears complainant was not to blame for the dismissal of her original bill. Practically the litigation continued without interruption. If the parties are desirous of reaching a determination of the suit upon the merits, and to save expenses, doubtless a way may be found by agreement of making use of the testimony taken under the former bill. At all events we are of opinion that the demurrer was erroneously sustained, and the decree dismissing the bill must therefore be reversed and the cause remanded.