In his petition Henry Smith alleged as follows: He is in possession, and has been since February 25, 1870, of the property thereinafter described, in his .own right, and is the absolute owner thereof. He is a negro man eighty years of age, illiterate, and in reference to legal matters absolutely dependent' upon what he is told by others. On about June 15, 1890, he married one Polly Stewart, whom he took to live with him on the described premises. She died about August, 1900. After her death G-. S. Burras informed him that his wife had left a will, nominat
1. The jurisdiction of courts of equity to remove clouds upon title, upon the principle quia timet, is well settled. Our statute declares (Civil Code, § 5465) : “The proceeding quia timet is sustained in equity for the purpose of causing to be delivered up' and canceled any instrument which has answered the object of its creation, or any forged or other iniquitous deed or other writing, which, though not enforced at the time, either casts a cloud over complain
2. Is he barred? “A party in possession of land who resorts to a court of equity to settle a question of title is not chargeable With laches,. no matter how long his delay.” 5 Pomeroy's Eq. Jur. § 33. A plaintiff out of possession must move seasonably to protect his title against an alleged cloud; but if he is in possession, he may lie by until his possession is invaded or his title attacked before taking steps to vindicate his right. Pavlovski v. Klassing, 134 Ga. 704 (68 S. E. 511); Simmons Creek Coal Company v. Durand, 142 U. S. 417 (12 Sup. Ct. 239, 35 L. ed. 1063). Laches which amounts to negligence debarring the assertion of a right is such an omission to assert the right as, taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party. It would be indeed singular to say that the holder of a forged title out of possession could claim any grant of immunity from attack on his false title by the true owner in possession, solety because of the latter’s delajg when the circumstances do not even remotely suggest that lie has been prejudiced by such delay. Inasmuch as an owner of land in possession may resort to .a court of equity to defend his title at any time before his possession is invaded or his title is attacked, it was immaterial when the plaintiff received information that 'the deed to his property had been forged. .The allegation is that this knowledge came to him after' the death of his wife; and as the interest of no other person is affected by his delay, equity will not throw him out of court, though he may have waited as long as even ten or eleven years to bring suit.
3. The amendment alleging that the deed was forged by his wife’s causing some one to impersonate the plaintiff before the witnesses to the deed was unnecessary to save the case from dismissal. The allegation in the original petition was that it was a forgery, and the plaintiff was not called upon to allege by whom the forgery
Judgment reversed.