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HEAD, Presiding Justice.
Equitable petition. Crisp Superior Court. Before Judge Horne.
1. "Neither laches nor the statute of limitations will run against one in peaceable possession of property under a claim of ownership for delay in resorting to a court of equity to establish his rights." Sutton v. McMillan, 213 Ga, 90 (7) (97 SE2d 139); Shirley v. Shirley, 209 Ga. 366 (2) (72 SE2d 719); Toombs v. Hilliard, 209 Ga. 755 (5) (75 SE2d 801); Richards v. Richards, 209 Ga. 839 (3) (76 SE2d 492).
2. The due registration of a deed is presumptive evidence of its delivery, but this presumption is rebuttable. Lowry v. Lowry, 150 Ga. 324 (2) (103 SE 813); Daniel v. Stinson, 179 Ga. 701 (177 SE 590); Allen v. Bemis, 193 Ga. 556 (2) (19 SE2d 516).
3. A court of equity will cancel the record of a deed which was never delivered, where possession of the property remained in the grantor, and the deed was filed for record by mistake of the attorney for the grantor, as between the original parties and their privies in estate, except as against bona fide purchasers without notice.
4. "A bona fide purchaser for value, and without notice of an equity, will not be interfered with by equity." Code 37-111.
6. The petition in the present case does not set out facts which show that the doctrine of equitable estoppel should be applied against the petitioner. The case of Zimmer v. Dansby, 56 Ga. 79, and other cases dealing with equitable estoppel cited by the plaintiff in error, are not in point on their facts with the present case. If facts exist not appearing on the face of the petition which work an estoppel, such facts are the subject matter of a plea, and can not be invoked by demurrer. Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524 (6c) (13 SE2d 165).
7. The petition in the present case states a cause of action. The order of the trial judge overruling the general and special demurrers to the petition, the motion to dismiss the petition, and the general demurrer to the intervention was not erroneous.
On October 27, 1960, Duncan Hosiery Mills, Inc., filed a petition in Crisp Superior Court against Fred M. Duncan, a resident of North Carolina, and president and treasurer of the petitioner, and W. L. Schautz Company, Inc., a Pennsylvania corporation. It was alleged: On June 10, 1952, the board of directors of Duncan Hosiery Mills, Inc., adopted a resolution proposing that it convey described property to Fred M. Duncan on the condition that he pay $1,000 and execute a lease agreement. Duncan Hosiery Mills, Inc., executed a deed to Fred M. Duncan, reciting receipt of the consideration of $1,000, and delivered the deed to its attorney, Mrs. Rosebud McCormick, to be held by her until such time as the proposal was accepted by Duncan and the lease agreement executed by him. It was the intention of both parties to the transaction that the sale would not be consummated until all of the conditions of the proposal were met by Duncan. On June 16, 1952, the attorney through mistake and error filed the deed for record, and it was recorded in the deed records of the county. Fred M. Duncan never paid any part of the consideration mentioned in the deed and never executed any lease of the property; he never assumed or paid the indebtedness on the property; there was never any actual or constructive delivery of the deed to him; he did not accept the deed; and he never assumed any control or possession of the property. The action of the attorney in recording the deed was beyond the scope of the resolution of the board of directors of Duncan Hosiery Mills, Inc., and it has never ratified such action. On August 25, 1958, Duncan Hosiery Mills, Inc., executed and delivered to First Federal Savings & Loan Association of Crisp County a note for $15,000, and a deed to secure debt on the described property to secure this obligation. It has made payments on this indebtedness, and there is presently due a balance of approximately $12,000. On August 12, 1960, the defendant W. L. Schautz Company, Inc., filed in Crisp Superior Court an affidavit for attachment against Fred M. Duncan and caused the writ of attachment to be levied upon the property described as the property of Fred M. Duncan. In its declaration in attachment W. L. Schautz Company, Inc., alleged an indebtedness of $22,700 due it by Fred M. Duncan, Gladys L. Duncan, and Fred M. Duncan, Inc., all residents of North Carolina, by virtue of a judgment obtained in Pennsylvania. Fred M. Duncan filed an affidavit of illegality to the attachment proceedings. Duncan Hosiery Mills, Inc., filed a claim to the property levied on in the attachment proceedings. Unless the attachment proceedings are enjoined and consolidated with the present cause, there will be a multiplicity of suits. Duncan Hosiery Mills, Inc., had no knowledge that the purported deed to Duncan had been recorded until the attachment was filed.
It was prayed: that the defendants be served by serving their attorneys of record in the attachment proceedings; that the attachment proceedings be enjoined and consolidated with the present case; that Fred M. Duncan be enjoined from executing any instrument or doing any act which would convey any interest in the res of this action against the interest of Duncan Hosiery Mills, Inc.; that the purported deed from Duncan Hosiery Mills, Inc., to Duncan be canceled of record as a cloud upon its title; that rule nisi issue; and for other and further relief. First Federal Savings & Loan Association of Crisp County filed its intervention, asserting that it had in good faith made a loan to Duncan Hosiery Mills, Inc., with the property described in the petition as security, and that a balance of approximately $13,000 is due on the loan. The intervenor prayed that the attachment of W. L. Schautz Company, Inc., be dismissed, and the intervenor be confirmed as the holder of a valid first lien against the property.
The bill of exceptions of W. L. Schautz Company, Inc., assigns as error the rulings of the trial judge in overruling its general and special demurrers to the petition, its motion to dismiss the petition, and its general demurrer to the intervention.
R. McCormick, for party at interest not party to record.
Wright & Reddick, Mixon & Forrester, contra.
Gerstein & Carter, Davis & Freidin, for plaintiff in error.
Friday May 22 22:34 EDT

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