History generally.

- This section is derived from the decision in Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S.E. 663 (1893).

"Cloud upon title" defined.

- In order for an outstanding conveyance to be a cloud upon title, it is necessary that it of itself, or in connection with alleged extrinsic facts, should constitute an apparent title; that is, one upon which a recovery could or might be had against the true owner were he in possession and relying upon possession alone. Anything which would force him to attack the adverse title, or to exhibit his own, would be a cloud; anything which would not have this effect, would be no cloud. An instrument which springs from no definite source whatsoever, for example, from a stranger to the title, can never properly be considered a cloud. Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S.E. 663 (1893); McMullen v. Cooper, 125 Ga. 435, 54 S.E. 97 (1906).

The following instruments have been canceled as clouds in: Israel v. Wolf, 100 Ga. 339, 28 S.E. 109 (1897); Adams v. Johnson, 129 Ga. 611, 59 S.E. 269 (1907) (will of property not owned by testator, but not before probate); Denham v. Walker, 93 Ga. 497, 21 S.E. 102 (1893) (deed with condition subsequent after condition broken); Fulgham v. Pate, 77 Ga. 454 (1886) (void sale of property by wife to husband); Brewton v. Smith, 28 Ga. 442 (1859) (void deed); Wynne v. Lumpkin, 35 Ga. 208 (1866) (illegal deed); Walker v. Hunter, 27 Ga. 336 (1859) (deed without consideration); Graham v. Hall, 68 Ga. 354 (1882) (deed based upon illegal judgment); Butler v. Durham, 2 Ga. 413 (1847) (deed functus officio); Smith v. Burrus, 139 Ga. 10, 76 S.E. 362 (1912) (forged deed).

Cited in Morris v. Mobley, 171 Ga. 224, 155 S.E. 8 (1930); Hadaway v. Hadaway, 192 Ga. 265, 14 S.E.2d 874 (1941); Fairview Terrace, Inc. v. Roberts, 215 Ga. 407, 110 S.E.2d 641 (1959); Collins v. Storer Broadcasting Co., 217 Ga. 41, 120 S.E.2d 764 (1961); Drake v. Barrs, 225 Ga. 597, 170 S.E.2d 684 (1969).

Removal of cloud requires proof of possession.

- The general rule is that, in order for a plaintiff to maintain an equitable petition to remove a cloud upon his title, he must allege and prove actual possession in himself, for the reason that where the defendant is in possession, the plaintiff has a remedy to test his title at law by bringing an action in ejectment, which is ordinarily deemed an adequate remedy, and there is no ground for the exercise of equitable jurisdiction. Hale v. Turner, 183 Ga. 593, 189 S.E. 10 (1936).

Except where there is any other distinct head of equity jurisdiction sufficient to support the action, possession by the plaintiff is not required, but equity will retain the cause and grant relief by quieting the title or removing clouds. Hale v. Turner, 183 Ga. 593, 189 S.E. 10 (1936); Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938).

A senior unrecorded deed loses its priority over a junior recorded deed for value from the same vendor, taken without knowledge or notice of the existence of the senior deed, and in a proper case may be canceled at the instance of the grantee in such junior recorded deed. Terry v. Ellis, 189 Ga. 698, 7 S.E.2d 282 (1940).

Or where land is wild and unoccupied, or at least not in the actual possession of the defendant, the plaintiff need not be in possession in order to maintain suit to quiet title or remove cloud therefrom. Hale v. Turner, 183 Ga. 593, 189 S.E. 10 (1936).

Am. Jur. 2d.

- 65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 2, 16, 63.

C.J.S.

- 30 C.J.S., Equity, §§ 29, 39, 57.

ALR.

- Doctrine of after-acquired title as between one who took before and one who took after common grantor or mortgagor acquired title, 25 A.L.R. 83.

Return of payments as condition of cancellation of land contract as cloud on title, 35 A.L.R. 274.

Right of one not in possession to maintain suit to remove cloud on title in case of fraud, 36 A.L.R. 698.

What constitutes cloud on title removable in equity, 78 A.L.R. 24.

Right of vendor in contract for sale or exchange of real property to bring suit for forfeiture, foreclosure, or rescission, or to quiet title or recover possession, without first giving notice, or making demand for possession, 94 A.L.R. 1239.

Remedies of grantor who has conveyed with covenants against third person asserting title or interest hostile to covenants, 97 A.L.R. 711.

Marketability of title derived from or through, or affected by possible claim of, infant, 24 A.L.R.2d 1306.

Maintainability, by lessee, of action to quiet title to leasehold, 51 A.L.R.2d 1227.

Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R.3d 1182.