SCOTT v. EMPIRE LAND CO.

SCOTT v. EMPIRE LAND CO. Circuit Court of Appeals, Fifth Circuit. February 25, 1928. No. 5049. Cancellation of instruments >@=>34(1) — Limitation of actions <@^>36 (3) — Suit to cancel deed for fraud, brought more than 20 years after execution, held barred by laches and limitations (Rev. Gen. St. Fla. 1920, §§ 2932, 2939 [5]). Suit by grantor to cancel deed for fraud, brought more than 20 years after its execution, held barred by laches and limitations of Rev. Gen. St. Fla. 1920, §§ 2932, 2939(5). Appeal from the District Court of the United States for the Southern District of Florida; Lake Jones, Judge. Suit in equity by Charles H. Scott against the Empire Land Company. Decree for defendant, and complainant appeals. Affirmed. For opinion below, see 5 F.(2d) 873. Geo. P. Garrett, of Orlando, Fla., and W. M. Toomer, of Jacksonville, Fla., for appellant. John J. Swearingen, of Bartow, Fla. (Wilson & Swearingen, of Bartow, Fla., and James F. Glen, of Tampa, Fla., on the brief), for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. On October 21, 1924, appellant filed a bill to cancel, on the ground of fraud, his deed to appellee, dated May 13, 1904. We are of opinion that the asserted cause of action is barred by laches, as it was held to be by the District Judge. Upton v. Tribilcock, 91 U. S. 45, 55, 23 L Ed. 203. It is also barred by statute. Section 2939 (5), Revised. General Statutes of Florida, bars an action for relief on the ground of fraud within three years, and section 2932 provides that no action for the recovery of real property or the possession thereof shall be maintained, unless it appear that the plaintiff or his predecessor in title was seized or possessed of the premises within seven years before the commencement of such action. The decree is affirmed.