Weyman v. City of Atlanta , 122 Ga. 539 ( 1905 )

Lamar, J.

(After stating the foregoing facts.) There is some logical inconsistency in the rules relating to the removal of clouds on titles. If the defendant’s claim is valid, it can not be cancelled. If it is absolutely invalid, some decisions hold that the courts will not deal with the question. The complainant, therefore, can secure relief only by setting up a state of facts between these two extremes. Yet one may have an absolutely perfect title to land, but an outstanding claim, be it never so groundless, may prevent the owner from selling his property. The intending purchaser may even be convinced that the claim does not come within the technical definition of a cloud, and be willing to buy the land and assume the risk. He knows, however, that the next purchaser may take a different view, and refuse to buy because, though the title is good, there is a possibility of a lawsuit. As a practical question, it is not so much the validity as the existence of an outstanding claim that vexes the owner by preventing a sale. The marketable character of a title may be as effectually defeated by an instrument certainly void as by one which is'not so apparently invalid. Considering the object sought to be accomplished, it would seem that a bill should be maintainable to remove anything, no matter how void or how invalid, if as a fact it interferes with the rights of a true owner. Indeed, the more invalid it is the less right has the defendant to allow it to prejudice the'owner, and the greater reason why the court should decree its cancellation. Considering again the object sought to be accomplished, it would seem that the very fact that the defendant resists the removal of the instrument is such a reliance upon it, or such an assertion of a right under it, or such a covert threat to use it in the future, as to make it a cloud, if it were not already such. The only reason why harmless and void instruments should not be ordered canceled is that the judgment against the defendant might impose the •costs upon him. That he can avoid by a disclaimer. But if instead of disclaiming he resists the cancellation, the court should proceed; and if it be found that in law and in fact the instrument operates to becloud the title, the proper decree should be entered, so that the plaintiff may be undisturbed in the right to sell — itself an integral and essential incident to the right of property and its enjoyment. Of course, a mere verbal claim or an oral assertion of ownership is not a cloud which can be removed by decree. Waters v. Lewis, 106 Ga. 758. The remedy in such cases is by an action for damages for slander of title (Civil Code, §'3883), or by injunction. But in view of the law as codified in the Civil Code, §§4892, 4893, the instrument may be canceled, not only when it meets the definition of a technical cloud, but also when it may be vexatiously or injuriously used against the owner or when it •casts suspicion upon his title, or when it subjects him to future liability or present annoyance and the cancellation is necessary to his present protection. Names should be disregarded, and relief should be afforded against the harmful effect of the instrument whether it as a matter of strict law ought to have that effect or not.

But this remedy is not given to one whose title deed may itself prove to be a cloud. The law does not contemplate that after securing a decree of cancellation against some one else the claimant .should himself then be in a position where his title deed can be removed at the instance of still another claimant of the land. The remedy is given to the “ true owner.” His petition should contain not mere conclusions, but statements of facts showing that he is the true owner and that he has a title. Except in cases relating to wild land, the petition should aver that the complainant is in possession. For these equitable proceedings are not intended to be a substitute for an action of ejectment, nor to try title or the right of possession, nor to determine to what extent an instrument which, if not a deed, as a lien can subject the property in controversy. Here the petition averred that the city lot was vacant. It failed to set out facts showing that the plaintiff had 'a good title. It relied on the fact that both parties claimed under a common grantor, but at the same time showed that the city by its deed to the plaintiff’s grantor expressly reserved the right to proceed against the property for the taxes of any year other than that in which the sale was made. The present claim of the city is under such subsequent sale. The title then acquired did not, therefore, under the Civil Code, § 3609, inure to the benefit of the former grantee. The court did not err in sustaining the demurrer to the petition. If in an action of ejectment the city disclaims, the plaintiffs will secure all the relief they require. On the other hand, if the city relies on the deed, the action of ejectment is the proper remedy to determine which has a better title. If, as argued, the city claims that the instrument gave it a lien on the land to the extent of the taxes, that question must be decided in the appropriate action, and not in a proceeding to remove as a cloud an instrument which may give to the city substantial rights in the land claimed by the petitioners.

Judgment affirmed.

All the Justices concur.