Aken v. Bullard

68 S.E. 482, 134 Ga. 665, 1910 Ga. LEXIS 311

• Court: Supreme Court of Georgia
• Decided: June 23, 1910
• Status: Published

Opinion

Evans, P. J.

(After stating the foregoing facts.) The doctrine of laches is founded upon the maxim “vigilantibus non dormientibus subveniunt leges.” It rests on reasons of public policy, and its aim is intended for the repose -of society by discouraging the assertion of antiquated claims. “‘The principle upon which courts of equity proceed in such cases,” says Judge Nisbet, “is that the lateness of the demand, arising from lapse of time, is presumptivo evidence against its justice.” Akiss v. Hill, 7 Ga. 573. Equity will relieve against mutual mistake, but only at the instance of a complainant who moves with reasonable diligence. What is a reasonable time must necessarily depend upon the peculiar facts and environments of the particular case. The deed asked to be reformed was executed twenty-three years before the institution of the suit to reform if. The petition does not disclose the name of the scrivener, nor is it negatived therein that the plaintiff knew of the precise terms of the deed from the date of its execution. lie alleges that Bullard knew of the mistake at the time he took his second conveyance from Mrs. Pendergrass in 1899. This deed was spread upon the public records a day ox two after its execution and yet the plaintiff waited more than nine years before he aroused himself from lethargy. No excuse is given for the plaintiff’s long delay. The witnesses to the partition agreement may be dead; the scrivener may have passed away, for aught that appears in the deed. The memory of the parties may be dimmed after the lapse of a quarter of a century. It is incumbent on the plaintiff, in order io repel the presumption of unreasonable delay, to allege in his petition the impediments to an earlier prosecution of his claim. 12 Enc. Pl. & Pr. 834. This was not done. The laches of the plaintiff is so palpable from the petition that its dismissal on demurrer was proper. Cloud v. Glass, 120 Ga. 51 (47 S. E. 505); McWhorter v. Cheney, 121 Ga. 541 (49 S. E. 603); Basch v. Frankenstein, ante, 518 (68 S. E. 75).

Judgment affirmed.

All The Justices concur.