Bridger v. Exch. Bank

Citation126 Ga. 821,56 S.E. 97
PartiesBRIDGER. v. EXCHANGE BANK et al.
Decision Date16 November 1906
CourtSupreme Court of Georgia
1. Trial—Admission of Evidence—Reopening Case.

After both parties to a case on trial have announced the evidence closed, and a motion for the direction of a verdict has been argued, it rests in the sound discretion of the judge to determine whether he will permit the case to be reopened for the introduction of further evidence.

[Ed. Note.—For cases in point, see Cent Dig. vol. 46, Trial, § 165.]

2. Same.

Where, upon application of one of the parties, the judge permitted the reopening of the case, for the purpose of allowing certain evidence on a particular point to be introduced, he was not compelled to reopen it for the introduction of evidence generally.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 168.]

3. Vendor and Pubchaser—Notice—Possession.

Possession of land is notice of whatever right or title the occupant has.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 540, 541.]

4. Same.

The cases of Johnson v. Eq. Sec. Co., 40

5. E. 787, 56 L. R. A. 933, 114 Ga. 604, and Malette v. Wright, 48 S. E. 229, 120 Ga. 741, distinguished from the present one.

5. Lis Pendens—Effect.

A lis pendens affects, not only a purchaser from one of the parties to the suit, but also those who hold by conveyances under him.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Lis Pendens, §§ 38-46.]

6. Same.

The rule applies to purchasers both from the plaintiff and from the defendant

[Ed. Note.—For cases in point see Cent Dig. vol. 33, Lis Pendens, §§ 38-46.]

7. Same—Pabties Affected.

It applies to a judgment creditor whose rights as an incumbrancer are acquired during the existence of the lis pendens, and also to a purchaser of the property at a judicial sale had in execution of a judgment in favor of a person whose interests in the property thus sold are affected by the lis pendens.

[Ed. Note.—For cases in point, see Cent Dig. vol. 33, Lis Pendens, §§ 50, 51.]

[56 S.E. 93]

8. Same—Notice—Pending Suit.

In this state a pending suit is a general notice of an equity or claim from the time the petition is filed and docketed, if this be followed by the issuance and service of process and due prosecution.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Lis Pendens, §§ 13-15.]

9. Same—Time of Taking Effect.

As to the plaintiff's complaint, and pleas or answers to it defensive in character and seeking merely to prevent a recovery, the lis pendens arises in favor of the defendant, as against a purchaser from the plaintiff, from the time of the commencement of the plaintiff's action, but relatively to a cross-action or cross-complaint by the defendant, setting up affirmative rights and praying affirmative relief against the plaintiff, the lis pendens begins from the filing of such cross-action or cross-complaint.

10. Same—Failure to Prosecute.

The protection afforded to a plaintiff, under the doctrine that lis pendens is notice to all the world, may be lost by a failure on his part to prosecute his action with due diligence, (a) A similar rule would seem to apply to a cross-complaint, creating a new lis pendens when filed, if there be laches on the part of the person filing it in failing to duly prosecute it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Lis Pendens, § 29.]

11. Execution—Property Subject.

If land was conveyed by an absolute deed as security for a debt, a bond to reconvey being given, and the debtor remained in possession, the legal title held by the creditor as security was subject to a levy of an execution against him, and a purchaser at the sheriff's sale would acquire only the interest of the holder of the security deed, including the right which he then had to receive the indebtedness. But such sale would be subject to the right of redemption by payment by the holder of the bond for title.

12. Same — Excessive Levy — Burden of Proof.

One who attacks a levy as void for ex-cessiveness carriers the burden of sustaining his contention. The mere fact that the value of real estate levied on may be considerable more than the amount of the execution will not necessarily show that the levy is excessive. The property must be such as to be reasonably capable of subdivision and sale, so as to realize the amount of the execution. Incumbrances proved to be on it are also to be considered in determining whether the levy is excessive.

13. Same—Divisibility of Property—Questions for Jury.

Under the evidence in the present case, the question of the reasonable divisibility of the property and the excessiveness of the levy should have been submitted to the jury. (Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by J. C. Bridger against the Exchange Bank and others. Judgment for defendants, and plaintiff brings error. Reversed.

The petition of Harry L. Woodward alleged that J. C. Bridger, as trustee for his wife and children, was indebted to him in the sum of $750, besides interest and attorney's fees, on a promissory note dated September 24, 1892, and due 10 days after date. It appears, from a copy of this note attached to the petition, that it was made payable to the order of "David Lamar, President, " at the office of the American Trust & Banking Company, In the city of Atlanta, Ga., and was signed "J. C. Bridger." The plaintiff alleged that, to secure the payment of this note, Bridger, as trustee, made and delivered to him a warranty deed covering a described tract of land in Atlanta, which was subject to a mortgage for $2,000, in favor of Mrs. M. L. Harris (now Mrs. Zettler), and also conveying a lot on Marietta street, in that city, which was subject to a mortgage for $4,000, held by H. and J. Hirsch. The plaintiff prayed judgment for the amount due on the note, and for a special lien on the property described in the security deed. This petition was filed August 15, 1893, and was served on August 18th. By way of answer, the defendant averred that the note sued on was an accommodation paper, wholly without any consideration, and was his individual note, all of which was known by the plaintiff before he received It and at the time the security deed described in his petition was executed and delivered to him for the purpose of securing its payment The defendant further pleaded that this deed was a cloud upon the title of his cestuis que trust and upon his title as trustee, and was null and void because without consideration, and because it was given to secure his individual debt, and accordingly should be canceled. After the filing of the defendant's answer, the Exchange Bank of Atlanta was allowed to intervene as a party plaintiff. Its petition (which was filed October 27, 1905) alleged: On September 27, 1892, J. C. Bridger, as trustee for his wife and children, executed a warranty deed in which the wife joined, conveying to plaintiff the property described in his petition. The deed was recorded on October 26, 1892. On January 9, 1894, H. L. Woodward deeded his Interest in the property to Emmett B. Woodward. This conveyance was recorded on May 30, 1895. The Exchange Bank, on February 28, 1902, caused to be levied on the land, as the property of Emmett B. Woodward, a fi. fa. in Its favor, issued against him and others by the city court of Atlanta. The indebtedness which was the foundation of this execution accrued after he had received the deed to the property from H. L. Woodward. The property was sold at sheriff's sale and was bought In by the Exchange Bank, which holds a deed from the sheriff, dated April 1, 1902, and recorded April 5th. The bank at that time had no notice that Emmett B. Woodward was not the absolute owner In fee simple of the property levied on and sold, although the present suit had previously been Instituted, and did not know that J. C. Bridger had any claim to the property as trustee. It was alleged that the bank could not be affected with constructive notice of the existence of this suit since it was not duly prosecuted, no pleadings having been filed or other proceedings had therein after the filing of the original petition in the fall of 1893, until a few daysbefore the filing of the bank's petition, when the defendant filed his amended answer and cross-bill. From the record of deeds in Fulton county be did not appear to have any title, either legal or equitable, to the property, and at the time the bank made its levy and purchased the property the same was unoccupied and tenantless. It was alleged that, even if the property had been occupied and in the actual possession of J. C. Bridger or his tenants, such possession would not have amounted to notice to it of its claim as trustee, and the bank prayed that his cross-bill be stricken and the relief asked for therein be denied, and that the deed made by him as trustee to H. L Woodward be declared a good and valid conveyance, passing title absolutely, so far as the bank is concerned, into H. L. Woodward. Bridger, as trustee, filed an answer to the bank's intervention, averring that neither E. B. Woodward nor H. L. Woodward ever had possession of the land, that neither ever claimed title to it, and that E. B. Woodward knew all the facts connected with the transaction by which H. L. Woodward obtained a deed to the property from defendant, who was at the time, as he has ever since been, in open, notorious, exclusive, and continuous possession of the land as trustee. The defendant insisted that the sheriff's sale was illegal, because the levy was grossly excessive; that for a like reason a sale of the property for taxes was invalid, and the bank acquired no title by virtue of certain tax deeds under which it also claims; and he prayed that all the instruments relied on by the bank as muniments of title be delivered up and canceled; and that he be decreed to be the owner of the property as trustee for his wife and children. On the trial, counsel for the...

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25 cases
  • Bridger v. Exchange Bank
    • United States
    • Georgia Supreme Court
    • 16 Novembre 1906
  • Harris v. Powers
    • United States
    • Georgia Supreme Court
    • 12 Agosto 1907
    ...execution against the grantee, the purchaser does not acquire a perfect title, but only the rights of the grantee. Bridger v. Exchange Bank, 126 Ga. 822, 56 S.E. 97. But to a considerable extent there is an analogy between security deed and a common-law mortgage, and rulings in regard to th......
  • White v. Connor
    • United States
    • Montana Supreme Court
    • 22 Luglio 1960
    ...would be a dangerous matter to purchase any property from any litigant at all.' The Georgia case of Bridger v. Exchange Bank, 126 Ga. 821, 56 S.E. 97, 8 L.R.A., N.S., 463, 115 Am.St.Rep. 118, is cited in support of the last paragraph above quoted from 34 Am.Jur., Lis Pendens, § 30 note 13, ......
  • Perimeter Development Corp. v. Haynes
    • United States
    • Georgia Supreme Court
    • 29 Aprile 1975
    ...possession is notice to the world of the right or title of the occupant. Mercer v. Morgan, supra; Bridger v. Exchange Bank, 126 Ga. 821, 56 S.E. 97, 8 L.R.A.,N.S. 463, 115 Am.St.Rep. 118; Austin v. Southern Home, etc., Ass'n, 122 Ga. 439, 50 S.E. 382. 3. Where the owner of land executes a d......
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