Zander v. Phillips

• Decision Date: 10 March 1914
• Docket Number: 2577.
• Citation: 213 F. 29
• Parties: ZANDER et al. v. PHILLIPS.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F. 29

ZANDER et al. v. PHILLIPS.

No. 2577.

United States Court of Appeals, Fifth Circuit.

March 10, 1914

Wm Winans Wall, of New Orleans, La., for appellants.

John Dymond, Jr., A. Giffen Levy, and E. Lloyd Posey, all of New Orleans, La., for appellee.

Before PARDEE and SHELBY, Circuit Judges, and NEWMAN, District Judge.

SHELBY Circuit Judge.

Bill in equity by Charles Phillips, a citizen of Illinois, against the board of commissioners for Lafourche Basin levee district, and six others, all citizens of Louisiana, in which Phillips, the plaintiff (appellee here), seeks to remove a cloud from title to certain real estate described in the bill, by the cancellation of deeds, and in which he also prays for an injunction pendente lite enjoining the defendants (appellants here) from selling, transferring, or in any manner disposing of the real estate described in the bill. A decree was rendered in the court below, overruling a demurrer to the bill and granting a preliminary injunction as prayed for. From this decree an appeal is taken to this court under the act allowing appeals from decrees granting injunctions pendente lite.

The only question necessarily before us by the appeal is whether or not the injunction should have been granted. We do not consider any other question.

The remedy by injunction in equity is an extraordinary remedy and, of course, is granted only in cases where it is necessary to protect the rights of litigants. The bill fully describes the land in controversy, and all persons interested in the litigation are made parties. It is clear that the filing of the bill, under the rule as to lis pendens, charges with notice any one who may purchase any interest in the real estate after suit brought, and that a purchaser or incumbrancer, pending the suit, would take whatever interest he obtained, subject to the result of the suit. As a general rule, relief by injunction against a transfer of real estate by defendant which the plaintiff seeks to prevent will be refused when the effect of filing the bill, which operates as lis pendens, is to afford sufficient protection against the transfer of the property pendente lite. 1 High on Injunctions (2d Ed.) Sec. 333; Powell v. Quinn et al., 49 Ga 523, 529; Smith v. Malcolm, 48 Ga. 343. If the plaintiff succeeds in obtaining a decree on final hearing, it will be conclusive against any one who may purchase pending the suit. Barstow v. Beckett ...