O.C.G.A. § 23-1-25 (2019)

Annotations

Cross references. - Authority of

courts of equity to interpose equitable bar owing to lapse of time and laches of complainant, § 9-3-3. Tolling of limitations due to fraud of defendant or those under whom one claims, § 9-3-96.

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION EQUITABLE DEMANDS MUST BE ASSERTED WITHIN REASONABLE TIME LACHES BASED ON INEQUITY PLEADING AND PRACTICE General Consideration Equitable doctrine of laches is not applicable to suits at law. Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5, 169 S.E.2d 349 (1969). 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. Parker v. Fisher, 207 Ga. 3, 59 S.E.2d 715 (1950). If both parties are equally to blame for delay, neither should be allowed to invoke the rule of laches in order to gain advantage over one’s adversary. City of McRae v. Folsom, 191 Ga. 272, 11 S.E.2d 900 (1940); Davis v. Newton, 217 Ga. 75, 121 S.E.2d 153 (1961). Generally, doctrine of laches will be invoked only when there will be prejudice to a party’s position. Ansley Park Plumbing & Heating Co. v. Mikart, Inc., 9 Bankr. 144 (Bankr. N.D. Ga. 1981). Quiet title action. - Trial court did not err in refusing to deny property owners’ petition to quiet title due to laches because the owners acquired their property on April 21, 2000, and over the next several years, the owners made repeated requests to adjoining landowners to stop using the street for anything other than

access from the owners’ driveways to the highway, but the adjoining landowners refused; the adjoining landowners identified no change in circumstance during the intervening years that would qualify as prejudice. Goodson v. Ford, 290 Ga. 662, 725 S.E.2d 229 (2012). Laches does not apply to uncollected child support. - Judgment forgiving a father’s child support arrearage based on the mother’s delay in making the claim was reversed because laches does not apply to claims for uncollected child support and the dormancy statute, O.C.G.A. § 9-12-60(a), did not apply to child support orders entered after July 1, 1997, such as the one involved in the case. Wynn v. Craven, 301 Ga. 30, 799 S.E.2d 172 (2017). Cited in Griffin v. Haden, 172 Ga. 478, 157 S.E. 686 (1931); Freeney v. Pape, 185 Ga. 1, 194 S.E. 515 (1937); Kinney v. Mayor of Milledgeville, 185 Ga. 866, 196 S.E. 467 (1938); Wright v. City of Metter, 192 Ga. 75, 14 S.E.2d 443 (1941); Miller v. Everett, 192 Ga. 26, 14 S.E.2d 449 (1941); Grant v. Hart, 192 Ga. 153, 14 S.E.2d 860 (1941); Gunby v. Turner, 194 Ga. 378, 21 S.E.2d 640 (1942); Lankford v. Holton, 195 Ga. 317, 24 S.E.2d 292 (1943); Williams v. Porter, 202 Ga. 113, 42 S.E.2d 475 (1947); Larkins v. Boyd, 205 Ga. 69, 52 S.E.2d 307 (1949); Calhoun County v. Early County, 205 Ga. 169, 52 S.E.2d 854 (1949); Gay v.

Radford, 207 Ga. 38, 59 S.E.2d 915 (1950); Flannagan v. Clark, 207 Ga. 345, 61 S.E.2d 485 (1950); Barron v. Darden, 207 Ga. 350, 61 S.E.2d 497 (1950); Vinson v. Citizens & S. Nat’l Bank, 208 Ga. 813, 69 S.E.2d 866 (1952); Todd v. Bivins, 215 Ga. 402, 110 S.E.2d 768 (1959); Consumers Fin. Corp. v. Lamb, 218 Ga. 343, 127 S.E.2d 914 (1962); Fuller v. Fuller, 107 Ga. App. 429, 130 S.E.2d 520 (1963); Blackstock v. Murphy, 220 Ga. 661, 140 S.E.2d 902 (1965); Brown v. Granite Holding Corp., 221 Ga. 560, 146 S.E.2d 289 (1965); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972); Gauker v. Eubanks, 230 Ga. 893, 199 S.E.2d 771 (1973); Sikes v. Sikes, 231 Ga. 105, 200 S.E.2d 259 (1973); Wilson v. Passmore, 240 Ga. 716, 242 S.E.2d 124 (1978); Sakas v. Jessee, 202 Ga. App. 838, 415 S.E.2d 670 (1992); Troup v. Loden, 266 Ga. 650, 469 S.E.2d 664 (1996); Hall v. Trubey, 269 Ga. 197, 498 S.E.2d 258 (1998); City of Duluth v. Riverbrooke Properties, Inc., 233 Ga. App. 46, 502 S.E.2d 806 (1998); Parker v. Shreve, 244 Ga. App. 350, 535 S.E.2d 332 (2000). Equitable Demands Must Be Asserted Within Reasonable Time There is no principle of equity sounder, more conservative and more prolific, in all the fruits of peace, than this: that one who slumbers over one’s rights, with no impediment to one’s asserting them, until the evidence upon which a counterclaim is founded, may from lapse of time, be presumed to be lost; until the generation cognizant of the transactions between the parties, has passed away, and until original actors are in their graves, and their affairs are left to representatives - the law, in the exercise of an equitable sovereignty, presumes it to be unjust, that under such circumstances, a complainant should be heard; and in nine cases out of ten, it is unjust in fact, as well as in theory. The principle upon which courts of equity proceed in such cases, is, that the lateness of the demand, arising from lapse of time, is presumptive evidence against its justice. Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959).

Equity will not aid in the enforcement of stale demands. Cannon v. Fulton Nat’l Bank, 206 Ga. 609, 57 S.E.2d 917 (1950); Phillips v. Hayes, 212 Ga. 148, 81 S.E.2d 19 (1956); Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959). Defendant’s suit is properly barred by laches when defendant’s claim of a resulting trust in a house is based on payments made 35 years ago to a person who is the sole record owner and is now dead. Stone v. Williams, 265 Ga. 480, 458 S.E.2d 343 (1995). Rule that equity will not aid in the enforcement of stale demands applies to accounts. Cannon v. Fulton Nat’l Bank, 206 Ga. 609, 57 S.E.2d 917 (1950). In a suit to rescind the sale of land, the plaintiff ’s voluntary failure to bring suit for three years after being fully cognizant of the fraud committed seven years prior thereto is such laches as will bar an action. Hillis v. Clark, 222 Ga. 604, 150 S.E.2d 922 (1966). When no legal redemption of the land is alleged, or claimed, but the redemption is entirely an equitable one, persons claiming thereunder must assert their equitable demands within a reasonable time, for since equity rewards the vigilant, not the slothful, when the delay is such as to render the ascertainment of the truth difficult, equity will give no relief. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946). Timing of demands against partner in partnership. - Even after the dissolution of a partnership, the statute of limitations does not begin to run in favor of one partner against another until the partnership affairs, as to debtors and creditors of the firm, have been wound up and settled, or, at least, a sufficient time has elapsed since the dissolution to raise the presumption that such was the fact, nor, while there are outstanding assets and liabilities, will a partner be barred as against a copartner, on the principle of stale demands. Powell v. Powell, 171 Ga. 840, 156 S.E. 677 (1931), later appeal, 179 Ga. 817, 177 S.E. 566 (1934). There is no absolute rule as to what constitutes laches or staleness of demand, and no one decision constitutes a precedent in the strict sense for another. Each case is to be determined according to

Equitable Demands Must Be Asserted Within Reasonable Time (Cont’d) its own particular circumstances. Laches is not, like limitations, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions. Bleckley v. Bleckley, 189 Ga. 47, 5 S.E.2d 206 (1939); Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 38 S.E.2d 534 (1946). Laches is not, like limitations, a mere matter of time. but is principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions. Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945). Mere lapse of time is usually insufficient to activate the doctrine of laches. Ansley Park Plumbing & Heating Co. v. Mikart, Inc., 9 Bankr. 144 (Bankr. N.D. Ga. 1981). In determining whether there has been laches, there are various things to be considered, notably the duration of the delay in asserting the claim, and the sufficiency of the excuse offered in extenuation of the delay, whether plaintiff acquiesced in the assertion or operation of the corresponding adverse claim, the character of the evidence by which plaintiff ’s right is sought to be established, whether during the delay the evidence of the matters in dispute has been lost or become obscured or the conditions have so changed as to render the enforcement of the right inequitable, whether third persons have acquired intervening rights. Citizens’ & S. Nat’l Bank v. Ellis, 171 Ga. 717, 156 S.E. 603 (1931); Johnson v. Sears, 199 Ga. 432, 34 S.E.2d 541 (1945); Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945); Parker v. Fisher, 207 Ga. 3, 59 S.E.2d 715 (1950); Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959); Erhart v. Brooks, 231 Ga. 272, 201 S.E.2d 464 (1973). Delay in bringing suit must not be such as to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and

thus make the doing of equity either doubtful or impossible, due to loss or obscuration of evidence of the transaction in issue, or when the lapse of time has been sufficient to create or justify a presumption that, if the plaintiff was ever possessed of a right, it had been abandoned, waived, or satisfied. Citizens’ & S. Nat’l Bank v. Ellis, 171 Ga. 717, 156 S.E. 603 (1931); Flemister v. Billups, 202 Ga. 132, 42 S.E.2d 376 (1947); Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959). Premise behind doctrine of laches. - While most frequently the bar of laches is applied in instances where the long delay has rendered the ascertainment of the truth difficult, the doctrine does not rest on that premise alone. Johnson v. Sears, 199 Ga. 432, 34 S.E.2d 541 (1945). Delay until death of essential witnesses. - An unreasonable delay until the death of essential witnesses, which practically precludes the court from arriving at a safe conclusion as to the truth of the matters in controversy, and which make the doing of equity either doubtful or impossible, due to loss or obscuration of evidence of the transaction in issue, will bar the action. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942). Death of essential witnesses, which may preclude the court from arriving at a safe conclusion as to the truth of matters in controversy, and which makes the doing of equity doubtful or impossible, will bar the action. Whitfield v. Whitfield, 204 Ga. 64, 48 S.E.2d 852 (1948). Premise behind doctrine of laches. - While most frequently the bar of laches is applied in instances when the long delay has rendered the ascertainment of the truth difficult, the doctrine does not rest on that premise alone. Bryan v. Willingham-Little Stone Co., 194 Ga. 563, 22 S.E.2d 40 (1942). 18-year delay. - Petition showing affirmatively that the plaintiffs were guilty of laches in not seeking for 18 years the cancellation of deeds conveying property in their mother’s estate was properly dismissed on general demurrer (now motion to dismiss). Johnson v. Sears, 199 Ga. 432, 34 S.E.2d 541 (1945). 40 year delay. - A delay of 40 years or more, and the death of essential wit-

nesses, when the truth of matters in controversy cannot be fairly established, makes the doing of equity either doubtful or impossible, and will bar the action. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946). To charge a party with laches in delaying to assert a right, an opportunity to have acted sooner must have existed; if one acted at the first possible opportunity, one is not culpable. Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945). In a suit to cancel a deed on the ground of the grantor’s insanity, when no reason appeared why the plaintiffs did not know, or by the slightest diligence could not have known, of the substantial facts, so as to bring the suit within a reasonable time after the deed was executed and after the grantor’s death, the action was properly dismissed on demurrer (now motion to dismiss) on the ground that it was stale and that the plaintiffs were in laches. Hillis v. Clark, 222 Ga. 604, 150 S.E.2d 922 (1966). To prevail on a plea of laches, it is essential that the pleading party prove harm caused the pleader by the delay. Clover Realty Co. v. J.L. Todd Auction Co., 240 Ga. 124, 239 S.E.2d 682 (1977). Delay causing prejudice. - The defendant’s plea of laches in a suit brought to enjoin the defendant from extending a parking area onto land zoned for single family dwellings cannot be sustained, when no facts are alleged to show any prejudice to the defendant, or that the ascertainment of the truth is made more difficult by any delay on the part of the plaintiffs to immediately seek relief against the defendant for the unlawful use of the plaintiff’s property. Palmer v. Tomlinson, 217 Ga. 399, 122 S.E.2d 578 (1961). Delay alone is never enough to show laches when there is an applicable statute of limitations. Clover Realty Co. v. J.L. Todd Auction Co., 240 Ga. 124, 239 S.E.2d 682 (1977). Delay is excusable when it was induced by the adverse party; one cannot take advantage of a delay which one personally has caused or to which one has

contributed. City of McRae v. Folsom, 191 Ga. 272, 11 S.E.2d 900 (1940). Constructive trust denied due to laches. - Former wife was not entitled to impose a constructive trust on her former husband’s military pension pursuant to O.C.G.A. § 53-12-132 because she failed to object to the absence of any provision for the pension in their divorce decree for 12 years and failed to bring suit until 5 years after payments allegedly became due. Davis v. Davis, 310 Ga. App. 512, 713 S.E.2d 694 (2011). Laches Based on Inequity Laches is not, like limitations, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions. Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 38 S.E.2d 534 (1946); Whitfield v. Whitfield, 204 Ga. 64, 48 S.E.2d 852 (1948). Laches does not arise from mere lapse of time. Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5, 169 S.E.2d 349 (1969). In fixing the time when the bar of laches may be interposed, the court does not measure altogether by the lapse of time, because this section declares that: ‘‘Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right.’’ Bass v. Mayor of Milledgeville, 180 Ga. 156, 178 S.E. 529 (1934), appeal dismissed, 295 U.S. 721, 55 S. Ct. 926, 79 L. Ed. 1675 (1935). Laches is an equitable doctrine which is independent of the statute of limitations, and as to the lapse of time necessary for invoking the doctrine of laches, such time may or may not correspond with the time specified in the statute of limitations. Prudential Ins. Co. v. Sailors, 69 Ga. App. 628, 26 S.E.2d 557 (1943); Johnson v. Sears, 199 Ga. 432, 34 S.E.2d 541 (1945). Courts of equity may act in obedience and analogy to statutes of limitation. - While the equitable doctrine of laches operates independently of any statute of limitations, courts of equity usually act in obedience and in analogy to the

Laches Based on Inequity (Cont’d) statutes of limitations, in cases when it would not be unjust and inequitable to do so. Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945). Lapse of time is an important element of laches; yet, unless a case falls within the operation of a statute of limitations, there is no fixed period within which a person must assert ones claim or be barred by laches; the length of time depends on the circumstances of the particular case. Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945). Period from which laches is determined is fixed in equity cases according to the circumstances of each case. Bryan v. Willingham-Little Stone Co., 194 Ga. 563, 22 S.E.2d 40 (1942). Equity can interpose equitable bar. - The doctrine of laches not only forbids relief to one whose long delay renders the ascertainment of truth difficult, though no legal limitation bars the right, but also authorizes equity to interpose an equitable bar, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce the party’s legal rights. Goodwin v. First Baptist Church, 225 Ga. 448, 169 S.E.2d 334 (1969), later appeal, 226 Ga. 524, 175 S.E.2d 868 (1970). Claimants barred by laches. - In an equitable suit to obtain possession of lands, under a rule analogous to the rule of law permitting title by adverse possession to be acquired in seven years under color of title, claimants would be barred after such time by their laches. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946). Equitable petition seeking cancellation of deed. - On an equitable petition seeking merely a cancellation of a deed, although ‘‘equity follows the analogy of the law’’ in allowing the seven-year period of limitation, this time is permitted only if there are no special circumstances demanding an earlier application, and when such circumstances exist, calling for an interposition of the equitable doctrine of laches, equity will refuse relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942).

The rules of limitation do not apply if the defendant, or those under whom the defendant claims, has been guilty of a fraud by which the plaintiff shall have been debarred or deterred from the plaintiff’s action. In such a case, the period of limitation shall run only from the time of the discovery of the fraud, and equity applies a similar rule as to laches. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942). The statute of limitations is a statute of repose. When a person is defrauded, and has knowledge of the fraud, the person must ask redress, if at all, within the period of limitation. If the person waits for a longer period, the person is bound by laches. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946). Fraud is not good reply to statute of limitations. - Fraud, which should have been discovered if usual and reasonable diligence had been exercised, is not a good reply to the statute of limitations. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946). A general allegation of fraud amounts to nothing. - It is necessary that the complainant show, by specifications, wherein the fraud consists in order to prevent the application of laches against the complainant. Issuable facts must be charged. Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959). Measure of delay. - Period of the delay in bringing suit to decide if it is barred by laches is measured from the time the cause of action was possessed by the party charged with laches or the party’s privies. Chapman v. McClelland, 248 Ga. 725, 286 S.E.2d 290 (1982). Pleading and Practice Defense of laches must be alleged. - A petition is not demurrable (now subject to motion to dismiss) on the ground of laches on the part of the petitioner, when nothing in the petition authorizes the inference that there was any delay on the petitioner’s part, suit being brought within the statute of limitations, which rendered the ascertainment of the truth more difficult, or in any way hindered the defendant city in making its defense. Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960), overruled on other

grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994). Laches is an equitable defense, and a petition for equitable relief is not subject to demurrer (now motion to dismiss) on the ground of laches unless the allegations of fact affirmatively show such defense. Henderson v. Henderson, 219 Ga. 310, 133 S.E.2d 251 (1963). Plaintiff must prove absence of laches. - It is incumbent on the plaintiff, in order to repel the presumption of unreasonable delay, to allege in the plaintiff’s petition the impediments to an earlier prosecution of the plaintiff’s claim. Parker v. Fisher, 207 Ga. 3, 59 S.E.2d 715 (1950). When the petition affirmatively shows that there has been unusual and unreasonable delay in bringing the action, it is incumbent upon the plaintiffs to show that the plaintiff were not guilty of laches. Hillis v. Clark, 222 Ga. 604, 150 S.E.2d 922 (1966). When it cannot be said as a matter of law that the plaintiff was dilatory in asserting the plaintiff’s claim, then the defense of laches is a question for the jury and summary judgment cannot be granted the defendant on the issue. Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133 (1975). Application to mandamus. - Supreme Court of Georgia concluded that case law supporting that a mandamus action can be barred by gross laches is the correct rule; thus, Crow v. McCallum, 215

Ga. 692, 696 (113 SE 203) (1960), and its progeny, were wrongly decided and overruled. Marsh v. Clarke County Sch. Dist., 292 Ga. 28, 732 S.E.2d 443 (2012). Plaintiff ’s right to recover plaintiff’s share of the remainder estate is a plain statutory right not subject to the bar of laches. Perkins v. First Nat’l Bank, 221 Ga. 82, 143 S.E.2d 474 (1965). One in possession of land is not chargeable with laches in failing to bring suit to cancel deeds. Marietta Realty & Dev. Co. v. Reynolds, 189 Ga. 147, 5 S.E.2d 347 (1939); Davis v. Newton, 217 Ga. 75, 121 S.E.2d 153 (1961). One who is in possession of property under a claim of ownership will not be guilty of laches for delay in resorting to a court of equity to establish one’s rights. Davis v. Newton, 215 Ga. 58, 108 S.E.2d 809 (1959). Affirmative defense relevant. - Trial court’s denial of a decedent’s father’s motion for partial summary judgment pursuant to O.C.G.A. § 9-11-56 in an action against the decedent’s mother and the estate administrator was proper, because the defense of laches under O.C.G.A. § 23-1-25 was appropriate in defense of the father’s request for imposition of a constructive trust on an annuity that was purchased with the wrongful death settlement proceeds, and the defense of advice of counsel under O.C.G.A. § 15-19-17 against the father’s claim of breach of fiduciary duty was relevant to the mother’s state of mind. Rhone v. Bolden, 270 Ga. App. 712, 608 S.E.2d 22 (2004).

RESEARCH REFERENCES Am. Jur. 2d. - 27 Am. Jur. 2d, Equity, §§ 93, 152 et seq., 159 et seq. C.J.S. - 30 C.J.S., Equity, § 100. 31 C.J.S., Equity, § 113 et seq. ALR. - Laches as affecting right of corporation or its stockholders to relief against directors for violations of trust, 10 A.L.R. 370. Laches as preventing recovery of property diverted from one religious sect or denomination to another, 18 A.L.R. 692. Check in payment of interest or installment of principal as tolling statute of limitations, 28 A.L.R. 84; 125 A.L.R. 271.

Institution of suit as relieving one of charge of laches precluding relief in equity, 43 A.L.R. 921. Effect of recovery of judgment on unfiled or abandoned claim after expiration of time allowed for filing claim against estate, 60 A.L.R. 736. What amounts to laches or delay on part of wife or widow in attacking antenuptial settlement which will prevent relief, 74 A.L.R. 559. Right to equitable relief from usury as affected by laches, 111 A.L.R. 126. Applicability of statute of limitations or

doctrine of laches as between husband and wife, 121 A.L.R. 1382. Statute of limitations or presumption of payment from lapse of time as ground for affirmative relief from debt or lien, 164 A.L.R. 1387. Workers’ compensation: time and jurisdiction for review, reopening, modification, or reinstatement of award or agreement, 165 A.L.R. 9. Pleading laches, 173 A.L.R. 326. Delay of stockholders in exercising their right to convert their stock into other class of stock or corporate obligation, 10 A.L.R.2d 587. Applicability of statute of limitations or laches to quo warranto proceedings, 26 A.L.R.2d 828. Laches as precluding cancellation of or

other relief against release for personal injuries, 34 A.L.R.2d 1314. What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54 A.L.R.2d 13. Delay in asserting contractual right to arbitration as precluding enforcement thereof, 25 A.L.R.3d 1171. Estoppel or laches precluding lawful spouse from asserting rights in decedent’s estate as against putative spouse, 81 A.L.R.3d 110. Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147. Laches or delay in bringing suit as affecting right to enforce restrictive building covenant, 25 A.L.R.5th 233.

CHAPTER 2 GROUNDS FOR EQUITABLE RELIEF

Sec.

Article 1

Article 3

General Provisions

Fraud

When equity will set aside judgment [Repealed]. Setting aside sale or contract for inadequate consideration. Payment of lost bonds or notes.

Accident and Mistake

Article 2

Sec.

Which accidents relievable in equity. What mistakes relievable in equity; power to relieve to be exercised cautiously. Mistake of law in instrument by contracting parties. Mistake of law in instrument by agent. When mistake of fact relieved. Form of conveyance contrary to intent. Accident or mistake in execution of power. Equitable interference not authorized by mere ignorance of law. Equitable interference not authorized by mutual ignorance of fact; mistake in judgment of value. Equitable interference not authorized by failure to exercise diligence; ignorance of fact absent fraud. Reformation and execution of contract in case of mistake distinguished. Rescission for unilateral mistake of fact. When negligent complainant granted relief. Mere volunteers, in general; exception for executed contracts. Relief against original parties or privies; exception.

Concurrent jurisdiction over fraud. Fraud as actual or constructive. Misrepresentation as legal fraud. Suppression of fact as fraud. Surprise as a form of fraud. Use of similar trademarks, names, or devices. Consummation of fraud. Proving existence of fraud. (For effective date, see note.) Confidential relations defined. Acquisition of antagonistic rights by one in confidential relationship. Annulment of conveyances for fraud. Article 4

Accounting of Contribution; Apportionment; Setoff

Scope of equity jurisdiction over matters of account. Entitlement to contribution; when equity has jurisdiction. Apportionment of contract, rent, or hire. Discharge of encumbrances affecting several interests. Burden of distinguishing mingled property. Offer to pay balance unnecessary. Equitable setoff. Article 5

Administration of Assets Generally

Legal and equitable assets defined; rules of distribution. When equity will interfere with administration of estates. Application for direction or construction of will.

Sec.

Marshaling assets of decedent’s estate. Compelled election in marshaling assets. Creditors’ petitions. When equitable assets may be reached by creditor. Time limit for intervention in case disposing of assets; publication of order. Application of joint and individual assets to debts. Article 6

Exercise of Powers of Appointment and Sale