Tanner v. Wilson

• Decision Date: 15 May 1937
• Docket Number: 11655.
• Citation: 192 S.E. 425,184 Ga. 628
• Parties: TANNER v. WILSON et al.
• Court: Georgia Supreme Court

192 S.E. 425

184 Ga. 628

TANNER v. WILSON et al.

No. 11655.

Supreme Court of Georgia

May 15, 1937

Rehearing Denied July 21, 1937.

Error from Superior Court, Coffee County; M. D. Dickerson, Judge.

Suit by G. J. Tanner against A. W. Wilson and others. To review a judgment sustaining general demurrers to the petition and dismissing the petition, plaintiff brings error.

Reversed.

Syllabus by the Court.

A supersedeas of a verdict and judgment in the trial court suspends the enforcement of the same, and prevents, during the time such supersedeas is in effect, any further steps in that direction; and where, after a supersedeas is granted steps are taken to enforce such verdict and judgment, the same are ineffectual, and may be set aside in a proper case.

Heath & Heath, of Douglas, for plaintiff in error.

Bennett & Bennett, of Waycross, R. A. Moore and Mingledorff & Roberts, all of Douglas, and Harry D. Reed and G. S. Walton both of Columbia, S. C., for defendants in error.

RUSSELL Chief Justice.

Mrs Lora Tanner, on April 6, 1925, obtained a loan from the Federal Land Bank of Columbia, S. C., the same maturing in 34 years, and being payable principal and interest in 68 semiannual installments, and to secure the payment thereof she conveyed to the bank certain farm lands which were in cultivation, and on which the grantor resided. On January 19, 1934, during the October adjourned term, 1933, of Coffee superior court, A. W. Wilson, in a suit on notes against Mrs. Tanner, obtained a verdict in his favor for $1,379.45. On the next day Mrs. Tanner moved for a new trial upon the general grounds, and in the order approving the motion and issuing a rule nisi it was provided 'that this order act as a supersedeas until further order of the court.' On February 15, 1934, counsel for Wilson presented and had signed by the trial judge a judgment, based on the verdict rendered on January 19, 1934. Neither the verdict nor the judgment was entered on the minutes of the trial court. The order approving the original motion for new trial was amended by allowing additional time to movant to prepare a brief of the evidence and the amending grounds of the motion. It was 'ordered that this motion and order act as a supersedeas until the final order disposing of this motion by the court.' Thereafter, on May 8, 1934, an execution issued on the aforesaid judgment, which was entered on the same day on the general execution docket of said county. On July 28, 1934, the judge overruled the motion for new trial, and thereafter, within the time prescribed by law, Mrs. Tanner filed her bill of exceptions to this court, assigning error on the judgment overruling the motion for new trial; and she made an affidavit in forma pauperis as provided by law, instead of paying the costs and giving the bond required, all of 'which further superseded the verdict and judgment until the Supreme Court decided the case.' On September 17, 1934, Mrs. Tanner conveyed by warranty deed to G. J. Tanner her interest or equity in the farm lands, which she had conveyed to the Federal Land Bank to secure said loan. G. J. Tanner immediately took possession of said premises. In this deed the grantee assumed the payment of the indebtedness of the grantor to the land bank, and the bank accepted said grantee on the obligation, without relieving Mrs. Tanner therefrom in the event of default in making payment. At that time Mrs. Tanner was in arrears in the payment of the semiannual installments of principal and interest provided for in the loan, and G. J. Tanner paid all such arrearages and has paid in addition all installments coming due up to and including November 1, 1935, all of which payments were accepted by the land bank in conformity with the land bank's agreement just referred to.

On June 3, 1935, the judgment overruling the motion for new trial filed by Mrs. Tanner, in the case in which A. W. Wilson procured said judgment against her, was affirmed by the Supreme Court. Tanner v. Wilson, 180 Ga. 694, 180 S.E. 614. On June 24, 1935, the remittitur therein was received by the clerk of Coffee superior court. Thereupon Wilson, the judgment creditor of Mrs. Lora Tanner, paid to the Federal Land Bank the principal and interest necessary to pay the balance due on the loan of Mrs. Tanner to it; and on August 2, 1935, said bank executed a conveyance of said farm lands back to Mrs. Tanner (apparently without any request upon her part and even without her knowledge), reciting therein the fact of the deed to secure debt executed by Mrs. Tanner, and that Wilson had obtained a judgment against Mrs. Tanner, execution 'having been issued on February 2, 1934, and recorded in the office of the clerk of the superior court for said county in Book 8 at page 137; and whereas A. W. Wilson * * * desires to exercise the right given to him by section 39-201 (6038) of the Code of Georgia of 1933, and redeem the lands'; that Wilson had tendered the principal and interest necessary to pay said indebtedness of Mrs. Tanner, and had requested the bank to execute a conveyance to Mrs. Tanner for the purpose of levy and sale as provided by the Code. This deed purported to convey the legal title of the bank in the land to Mrs. Tanner, and was recorded August 5, 1935. Thereafter, on August 7, 1935, the sheriff of Coffee county levied the execution which had issued on said judgment in favor of Wilson on May 8, 1934, during the pendency of said motion for new trial, upon the land herein involved, being the land described in the deed from Mrs. Tanner to the land bank, and the same land described in the deed from Mrs. Tanner to G. J. Tanner, and the land was advertised for sale on the first Tuesday in September, 1935. An affidavit of illegality was interposed by Mrs. Tanner, which she sought to amend by seeking the cancellation of the deed from the bank to the plaintiff in fi. fa., and other equitable relief; and to a judgment dismissing which she sued out a writ of error to this court, where the judgment was affirmed. Tanner v. Wilson, 183 Ga. 53, 187 S.E. 625.

On August 25, 1935, G. J. Tanner filed his petition in Coffee superior court against A. W. Wilson, the judgment creditor, R. C. Relihan, sheriff of the county, and the Federal Land Bank, seeking to cancel certain instruments and to enjoin Wilson and the sheriff from selling the premises involved pursuant to said levy and advertisement under the execution issued on said judgment on May 8, 1934; from which petition appear the foregoing facts, with the exception of the reference to the affidavit of illegality interposed by the said Mrs. Tanner and the affirmance by this court of the dismissal thereof in the trial court. The plaintiff asked that said defendants be enjoined as stated, and that the verdict referred to be decreed to have been superseded from January 20, 1934, until June 24, 1935; that the judgment in said case against Mrs. Tanner be decreed to have been illegal and void as having issued while the verdict upon which it was based was suspeded by supersedeas; that the execution issued on this judgment be decreed null and void, as having issued upon a judgment which was superseded at the time by supersedeas; and that said verdict, judgment, and execution be decreed to effect no notice or lis pendens to third persons of any lien upon the equity of redemption by Mrs. Tanner to the farm lands referred to herein or general lien against her. The plaintiff also prayed that the conveyance from the bank to Mrs. Tanner, and the record thereof, be decreed null and void, 'as having been executed and recorded without authority of law, consent of the parties to the contract, or under the contractual obligations, and be canceled as a cloud upon petitioner's equity in the lands described therein; and that the notes and deed given by Mrs. Tanner to said bank be decreed to be still in force, with the privilege to plaintiff or his grantees to carry out the provisions thereof until the final maturity thereof according to the terms of the same; and that the orders of satisfaction entered on the note, and of authority to cancel on the deed to secure debt, be canceled, and petitioner be permitted to surrender up, as the holder for the Federal Land Bank, to the court, both originals for said purpose.' It was alleged in the petition that the land bank had mailed by registered mail entries of cancellation and satisfaction of said note and deed to secure debt, which plaintiff had refused to accept, but which he held at the order of the sender. He raised also certain constitutional questions which it is unnecessary to determine, in the view which we take of this case. The defendants filed general demurrers to the petition, and to a judgment of the court sustaining the demurrers and dismissing the petition the plaintiff excepted.

To begin with, there was no lis pendens on account of the pending suit against Mrs. Lora Tanner in Coffee county. 'One of the essentials of a valid and effective lis pendens is that the litigation must concern specific property, so definitely described as to show what is involved.' Therefore an ordinary suit at law on a promissory note, not concerning any particular lands, in which only a general money judgment against the maker is sought, is not lis pendens until a valid judgment has been rendered and execution duly issued thereon and duly entered on the general execution docket of the county of the land sought to be charged with the lien of the judgment, in so far as bona fide purchasers for value are concerned. See Burkhalter v. Glennville Bank, 184 Ga. ----, 190 S.E. 664. Perdue v. Bradshaw,

18 Ga. 287; Pollard v King, 62 Ga. 103; Walden v. Walden, 124 Ga. 145, 52 S.E. 323, and citations; Walsen...