Tinsley v. Rice

• Decision Date: 26 July 1898
• Citation: 31 S.E. 174,105 Ga. 285
• Parties: TINSLEY v. RICE et al. RICE et al. v. TINSLEY.
• Court: Georgia Supreme Court

31 S.E. 174

105 Ga. 285

TINSLEY v. RICE et al.

RICE et al. v. TINSLEY.

Supreme Court of Georgia

July 26, 1898

Syllabus by the Court.

1. 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.

2. Under this rule the auditor in the present case, in any view of the evidence introduced before him, was right in finding and reporting that the plaintiff's claim of title to the premises in dispute, even if good when his petition was originally filed, was, so far as the main defendant in error is concerned, rendered invalid against her by his own laches and long delay in bringing his action to trial, and that as against him the title of this defendant in error to the land in dispute was good.

Error from superior court, Bartow county; A. W. Fite, Judge.

Suit by J. J. W. Tinsley against Ada S. Rice and others. Verdict directed in favor of defendants. Both parties bring error. Judgment on main bill of exceptions affirmed, and cross bill dismissed.

T. W Milner and J. W. Harris, for plaintiff.

J. M Neel and John W. Akin, for defendants.

LITTLE J.

The plaintiff in error filed his bill against John A. Crawford Mrs. Elizabeth Barna, and John Underwood, in the superior court of Bartow county, in the year 1867. The subject-matter of the bill was the title to lot of land No. 544 in the Seventeenth district, Third section, of Bartow county, to which complainant claimed title by virtue of a conveyance from Mrs. Barna. The prayer of the bill was that as the defendants, who formerly owned the legal and equitable title to the lot, had received and used the purchase money paid to them by complainant, the court decree to the complainant a good and sufficient title to the lot, and that the defendants be required to pay rents for the land while complainant was deprived of possession by them, and that defendants be required to deliver to complainant possession of the lot; that if legal title was found to exist in the estate of George W. Underwood, of which John A. Crawford was administrator, and the other defendants heirs at law, the estate be divided, the lot of land be assigned to Mrs. Barna, and that she hold the same in trust for complainant, and she be decreed to deliver possession to complainant in accordance with the deed theretofore made by her; that the defendants be enjoined from taking the rents and profits of the land, but that the same be paid over to some person to be appointed by the court to receive them. The defendants answered this bill in October, 1867. The record shows that the injunction was granted as prayed for. The record discloses the facts that Crawford (one of the defendants) died in April or May, 1875; that B. O. Crawford was soon thereafter appointed administrator of his estate; that Elizabeth Barna died testate in 1876, and her son B. A. Barna qualified as executor. The date of the death of John Underwood is not shown, but the record does show that Thomas A. Milam was appointed administrator of his estate in 1887. The record further discloses that no proceedings were had under the bill and answer until February 7, 1890, when, on application of complainant, James T. and Ada S. Rice were made parties. On January 14, 1892, T. J. Milam, administrator of John Underwood, was made a party defendant. On the same date, Barna, executor of Barna, was also made a party defendant. It is not shown that Crawford's administrator has ever been made a party. After James T. and Ada S. Rice were made parties, the defendant Ada S. Rice answered; claimed title to the land by prescription, and that she and those under whom she claimed held open, notorious, continuous, and peaceable possession of the land for more than 20 years before she was made a party in said suit. The case, by order of the court, was referred to an auditor in February, 1896; and he made a report, in which, among other things, is included the following: "On the 1st of June, 1881, the sheriff of Bartow county levied a fi. fa. of Hardwick v. Wofford and others, and other fi. fas. against W. T. Wofford, on the lot of land in dispute. At that time Wofford was in possession, claiming it as his own. It was levied on as the property of Wofford, and, after being duly advertised, was sold in April, 1882, to L. E. and H. L. Wofford, to whom the sheriff made a deed, under which they went into immediate possession. That L. E. and H. L. Wofford were bona fide purchasers, and on the 16th of June, 1883, they conveyed the same to Ada S. Rice; having in September, 1882, made to her a bond for titles, under which Mrs. Rice went into possession, and remained until the 7th of February, 1890, when she was made a party defendant to the bill. That L. E. and H. L. Wofford were in peaceable possession of the land from the time they purchased it up to the time of the sale to Mrs. Rice," etc. The auditor decided that title in Mrs. Rice was good against the complainant; that a decree should be taken in favor of the defendants and against the complainant. To the auditor's report both the complainant and Mrs. Rice, respectively, filed exceptions of law and fact, which the court overruled, and directed the jury to render a verdict finding in favor of the defendants; and a decree was entered on the verdict in accordance therewith. The plaintiff in error excepted, alleging that the court erred in disallowing his exceptions to the auditor's report, in directing a verdict, and in rendering the decree. From the view which we take of the case, it is not necessary to review in detail all the exceptions of fact filed by the complainant to the auditor's report. We have very carefully considered all of the exceptions made, and examined the evidence reported by the auditor on which his findings are based; but, confining ourselves to such as we consider to be controlling questions in the case, we omit any discussion as to the others.

1. The fourth, fifth, and sixth exceptions of law filed by the plaintiff in error raise the question as to whether the pendency of the bill filed by the plaintiff in error charged the defendant Rice with notice of the claim of title to the lot of land in question at the time she purchased, received a conveyance, and entered into possession of the same. The original bill, asserting the title to be in the complainant was filed in July, 1867, and was ancillary to a statutory action to recover possession of the land filed by the complainant on the 20th of February, 1866. The date of the deed executed by the sheriff, conveying the interest of W. T. Wofford in the land to L. E. and H. L. Wofford, was in April, 1882, while the date of the deed from the latter to Mrs. Rice was June 16, 1883; Mrs. Rice being then in possession under a bond for titles executed in September, 1882. The question, therefore, presented, is whether the pendency of the action to recover possession of the lot of land and the ancillary bill filed by the complainant charged the Messrs. Wofford and Mrs. Rice with notice of the complainant's claim of title. Section 3936 of the Civil Code declares that a pending suit is a general notice of an equity or claim to all the world from the time the petition is filed and docketed. Lis pendens, which is defined to be the jurisdiction, power, or control which the court acquires over the property involved in the suit pending the continuance of the action, and until its final judgment therein, has for its object the keeping of the subject or res within the power of the court until the judgment or decree shall be entered, and thus to make it possible for courts of justice to give effect to their judgments and decrees. 13 Am. & Eng. Enc. Law, pp. 869, 870, and authorities cited. In order that there may be an effective lis pendens, the property involved must be of a character to be subject to the rule, the court must have jurisdiction both of the person and the res, and the property involved must be sufficiently described in the pleadings. Ben. Lis. Pend. 153. Notice by lis pendens is said to commence at the point of time at which the court first acquires jurisdiction, and to terminate at the point of time at which the court ceases to have full jurisdiction. 13 Am. & Eng. Enc. Law, p. 883. But, while our Code declares that a pending suit is a general notice of an equity or claim, it does not provide in all cases that one who purchases property involved in such suit is necessarily affected by the decree rendered therein. The provision of the section (3936, supra) is that if such pending suit is duly prosecuted, and is not collusive, one who purchases pending the suit is affected by the decree rendered therein. In order, therefore, to charge a purchaser with notice under the law of lis pendens, it is necessary to inquire what legal effect should be given to the words "duly prosecuted," which we find in the statute. The rule laid down is that, for the lis pendens to retain its vitality and binding force as against innocent pendente lite purchasers, it is essential that there shall have been a "full prosecution" of the...