Under the facts in the instant case, the ruling of the court below sustaining a demurrer to the petition, seeking to reform a lease because of an alleged mutual mistake, on the ground that plaintiffs were barred by laches, was not error.

Nos. 17063, 17064. MAY 9, 1950. REHEARING DENIED JUNE 16, 1950.

Mrs. W. F. Parker, Mrs. W. L. Garrett, E. M. Hagan, and Mrs. S. S. Copeland sued out a dispossessory warrant against M. L. Fisher Jr., seeking to dispossess him of described realty, as a tenant holding over. Fisher filed a counter-affidavit, in which he denied that he was holding over beyond the term of his lease. Thereafter, the plaintiffs in the court below filed an equitable bill in aid of the dispossessory-warrant proceeding, seeking to reform the lease contract under which Fisher held the property, because of an alleged mutual mistake.

The allegations, in substance, are: that J. L. Smith, an attorney, prepared the lease covering the property in question "as attorney for all parties"; that the lease was executed by the plaintiffs in error, as lessors, to D. K. Brumback and M. P. Cain, as lessees; that the lease as originally prepared by J. L. Smith provided for a five-year lease on the property with the right of renewal of said lease for a period of five additional years "at and for the same price"; that the parties, after reading the lease as originally drawn, advised Smith that this was not the agreement, but that the right of renewal was to be "on such terms, conditions, and price as might be agreed upon at expiration of said lease"; that Smith caused the words, "at and for the same price," to be erased, and advised the parties that this change would carry out the true intention of the parties; that all parties to the lease relied upon this statement, and that a mutual mistake resulted; that the original lessee later transferred the lease to Guy A. Saxon, and advised Saxon of this understanding between the original parties at the time the lease was executed; that before M. L. Fisher Jr. acquired the lease by transfer, he was advised by an agent of the plaintiffs in error as to this understanding between the original parties to the lease contract. The prayer is that the lease contract be reformed so as to provide the right to renew the lease contract for an additional five years, conditioned upon the language sought to be added to the terms of the lease, to wit: "on such terms, conditions, and price as might be agreed upon at expiration of said lease."

The defendant in the court below demurred to the bill in equity in aid of the dispossessory-warrant proceeding, which sought to reform the lease contract on account of mutual mistake, insisting, among other things, that the plaintiffs in error are barred by laches. The trial court sustained the portion of the demurrer raising the question of laches, and overruled the remaining grounds of the demurrer. Exceptions to this ruling were duly preserved by exceptions pendente lite. The case proceeded to trial, resulting in a verdict being directed in favor of the counter-affidavit. The motion for new trial, as amended, was overruled. The direct bill of exceptions assigns error upon the judgment overruling the motion for new trial, as amended, and upon the exceptions pendente lite as to the ruling on demurrer. The cross-bill assigns error upon the judgment overruling the remaining grounds of the demurrer.

WYATT, Justice.

"An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when such mistake operates as a gross injustice to one, and gives an unconscionable advantage to the other, may be relieved in equity." Code, § 37-204. "A mistake of law by the draftsman or other agent, by which the contract, as executed, does not fulfill or violates the manifest intention of the parties to the agreement, may be relieved in equity." § 37-205. "The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence, the absence of which would be a violation of legal duty. Relief may be granted even in cases of negligence by the complainant, if it appears that the other party has not been prejudiced thereby." § 37-212. "A court of equity will reform a contract of sale when, from mutual mistake or mistake common to both parties, an instrument does not express the true agreement of the parties." W. P. Brown c. Lumber Co. v. Echols, 200 Ga. 284, 286 ( 36 S.E.2d 762). "In the case at bar the defendant will not be prejudiced by the reformation of this instrument, so as to make it speak the true contract between him and the plaintiff. If he gets what he bought, then he can not be hurt by reforming the instrument, so as to keep him from getting what he did not buy." Hill v. Agnew, 199 Ga. 644, 646 ( 34 S.E.2d 702).

It is contended by the plaintiff in error that — under the principles of law above stated, as well as a long line of decisions of this court to the same effect, cited in counsel's brief — the trial court erred in sustaining the demurrer raising the question of laches. In applying the facts of the instant case to the question here under consideration, other provisions of the law must be considered. "Mistake relievable in equity is some unintentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence. This power shall be exercised with caution, and to justify it the evidence shall be clear, unequivocal, and decisive as to the mistake." Code, § 37-202. "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." Cooper v. Aycock, 199 Ga. 658, 666 ( 34 S.E.2d 895). "Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." Code, § 37-119.

It was incumbent upon the plaintiffs in error in this case, construing the pleadings most strongly against them, to show that their cause of action was not barred by laches. See Johnson v. Sears, 199 Ga. 432 ( 34 S.E.2d 541). The plaintiffs in error, as shown by their pleadings, knew of the alleged error in the lease contract for more than three years before this proceeding was instituted. They could have then called upon a court of equity to reform the instrument, but they did not do so. The lease contract under consideration was negotiable, and appears to have been transferred at least twice. The scrivener and attorney who drew the lease contract and advised the parties was named in the pleadings, but it does not appear whether he is living or dead, or whether he is available as a witness. This court, in Aken v. Bullard, 134 Ga. 665, 667 ( 68 S.E. 482), said: "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. The deed asked to be reformed was executed twenty-three years before the institution of the suit to reform it. The petition does not disclose the name of the scrivener, nor is it negatived therein that the plaintiff knew of the precise terms of the deed from the date of its execution. He alleges that Bullard knew of the mistake at the time he took his second conveyance from Mrs. Pendergrass in 1899. This deed was spread upon the public records a day or two after its execution and yet the plaintiff waited more than nine years before he aroused himself from lethargy. No excuse is given for the plaintiff's long delay. The witnesses to the partition agreement may be dead; the scrivener may have passed away, for aught that appears in the deed. The memory of the parties may be dimmed after the lapse of a quarter of a century. It is incumbent on the plaintiff, in order to repel the presumption of unreasonable delay, to allege in his petition the impediments to an earlier prosecution of his claim. 12 Enc. Pl. Pr. 834. This was not done. The laches of the plaintiff is so palpable from the petition that its dismissal on demurrer was proper. Gould v. Glass, 120 Ga. 51 ( 47 S.E. 505); McWhorter v. Cheney, 121 Ga. 541 ( 49 S.E. 603); Basch v. Frankenstein, ante, 518 (68 S.E. 75)." The language there used is applicable to the facts in the instant case.

It follows from what has been said above that there was no error in sustaining the demurrer raising the question of laches. The language of the lease simply gives to the lessee the right to renew the lease as it exists for an additional period of five years. This being true, it was not error to exclude the evidence with reference to the alleged mutual mistake, and to direct a verdict in favor of the counter-affidavit.

Since the judgment of the trial court is being affirmed, no ruling will be made on the questions presented by the cross-bill.

Judgment affirmed on the main bill. Cross-bill dismissed. All the Justices concur.