163 Ga. 868 | Ga. | 1927
1. The court erred in dismissing the petition upon the ground that the petition was brought more than twelve years after the execution of the deed sought to be reformed, and that for this reason the plaintiff’s cause of action-was barred by laches or the statute of limitations.
(а) To avail himself of such defense, a party must plead it. Parker v. Irvin, 47 Ga. 405; So. Ry. Co. v. Wells, 103 Ga. 209 (29 S. E. 714).
(б) A party in possession is not too late to move for reformation of a deed under which she claims title and right to possession until her possession is sought to be disturbed. Wall v. Arrington, 13 Ga. 88; Smith v. Burrus, 139 Ga. 10, 12 (76 S. E. 362) ; Sweatman v. Dailey, 162 Ga. 295 (133 S. E. 257).
2. A court of equity will reform a contract of sale, when from mutual mistake, or mistake common to both parties, an instrument does not express the true agreement of the parties. Equity will also reform an instrument, where there is ignorance or mistake on one side, and fraud or inequitable conduct on the other side. Reese v. Wyman, 9 Ga. 430; Wyche v. Greene, 26 Ga. 415; Adair v. McDonald, 42 Ga. 506; Venable v. Burton, 129 Ga. 537 (59 S. E. 253); White & Hamilton Lumber Co. v. Foster, 157 Ga. 493 (122 S. E. 29); Gibson v. Alford, 161 Ga. 672, 682 (132 S. E. 442).
3. Applying the above rulings, the court erred in sustaining the demurrer to the petition.
Judgment reversed.
