This appeal and cross-appeal arise out of a dispute over title to a two-acre residentiаl tract located on Wieuca Road in Atlanta. Diana Fiksman, in both an individual and a representative capacity, claims unencumbered fee simple title to the real estate through her late husband, Alex Fiksman. She filed a quiet title action, seeking to *560 remove as clouds on her title two security deeds held by Yale Mortgage Company (Yаle) and a lien for attorney’s fees filed by Ralph Hunstein in 1997.
Hunstein answered. Yale answered and counterclaimed, seeking a determination that its security deeds were valid and enforceable instruments. After discovery, Yale moved fоr summary judgment. The trial court denied the motion as against Mrs. Fiksman, concluding that genuine issues of material fact remainеd as to whether her title was unencumbered by the security deeds. The trial court did, however, grant Yale’s motion for summary judgment against Hunstein, holding that the lien should be removed for his failure to take any action either to collect on the debt or to foreclose on the real property within four years from the date the fees were first claimеd.
Hunstein appealed to the Court of Appeals from the grant of summary judgment as to the unenforceability of his lien, and Yale filed a cross-appeal from the denial of its motion for summary judgment. Since the underlying action is an аction to quiet title, the Court of Appeals transferred the two appeals to this Court as cases coming within оur title to land jurisdiction.
Case Number S05A0883
1. In
Johnson v. Giraud,
in the form of an open account and [is] subjеct to the statute of limitations of four years, and [if] it remain[s] in the form of an open account for a period exceeding four years it [will] become barred by limitation, and if the debt is barred then the lien is likewise barred ([cit.]). . . .
Thus, foreclosure of a lien for attorney’s fees “is time-barred when a claim on the underlying debt has become time-barred. [Cit.]”
Hornsby v. Hunter,
Case Number S0SX0884
2. Yale’s recovery as against Mrs. Fiksman depends upon the strength of its own title, not any weakness in hers.
Smith v. Ga.
*561
Kaolin Co.,
In 1993, Mr. Fiksman executed a quitclaim deed cоnveying the property to an entity named Wieuca Partnership, Inc. (WPshipI). At the time this instrument was executed, WP was not in existence. Mrs. Fiksman contends that, although “WPshipI” denotes a corporate entity, the grantee was in fact a genеral partnership composed of her husband, Thomas Pierce and several others. The question of the intendеd grantee is further complicated by the fact that, only a few weeks after the conveyance to WPshipI, Mr. Fiksman and Mr. Pierce did create a corporation bearing the very similar name of WP. Yale asserts that, even thоugh the 1993 deed named WPshipI as the grantee, that was a misnomer and the true grantee was the subsequently incorporated WP. However, the evidence must be construed most strongly against Yale, as the movant for summary judgment. When that is done, genuine issues of material fact remain as to the actual grantee in the 1993 deed executed by Mr. Fiksman.
3. Yale also contends that, as the result of certain actions by her husband, Mrs. Fiksman is estopped from denying that the intended granteе in the 1993 quitclaim deed was a corporation and that WP was that corporate grantee. “Estoppel is usuаlly an issue of fact to be decided by the jury. [Cit.]”
Vines v. Citizens Trust Bank,
4. Yale further asserts that Mrs. Fiksman’s claim is time-barred, because suit was not filed within seven years of discovery of grounds for challenging the 1993 deed. However, she does not seek to cancel that or any conveyаnce for fraud. Compare
Troup v. Troup,
Rather than Mrs. Fiksman’s compliance with the seven-year statute of limitations, the appropriate inquiry is whether the equitаble defense of laches bars her action to remove Yale’s two security deeds as clouds on her title. In thаt regard, she apparently has remained in possession of the property throughout the relevant periods. “ ‘Laches will not be imputed to one in peaceable possession of property, for delay in resоrting to a court of equity to establish his right to the legal title.’ [Cits.]”
Shirley v. Shirley,
5. To the extent that any remaining enumerations of error are not otherwise resolved by the previous holdings, they are moot.
Judgments affirmed.