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03-Apr-2016 22:07

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Before you look at the two methods of clearing title, one must ask the question, what is a “cloud on title”? The action under 23-3-40 is the common law bill of Quia Timet. In Georgia, one can bring a Quia Timet action to cancel any instrument that 1) has answered the object of its creation, 2) is a “forgery or other iniquitous deed,” or 3) “though not enforced,” either casts a cloud over or creates future risk of liability or annoyance of the complainant’s title. However, there are limits as to who can bring a declaratory judgment action. So, the first question is, are you an “interested party”? The problem with this action is that if you are trying to have a deed declared void, or whatever, and you are not a party to the deed, you can not attack the validity of the deed because you are not a party to it and are not, therefore, an “interested party.” A deed is a contract. A 9-2-20(a) states “[a]n action on a contract “shall” be brought in the name of the party in whom the legal interest in the contract is vested….” Thus, if you are not a party to the deed you seek to invalidate through a declaratory judgment, you will not be successful.

The Supreme Court of Georgia in the 1893 case Thompson v. You must be an “interested party” in order to bring the action. The parties to the contract have direct rights and responsibilities relative to one another.

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