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Call Now: 904-383-7448Decrees ordinarily bind only parties and their privies; but a pending action shall be a general notice of an equity or claim to all the world from the time the action is filed and docketed. If the same is duly prosecuted and is not collusive, one who purchases pending the final outcome of the litigation shall be affected by the decree rendered therein.
(Civil Code 1895, § 3936; Civil Code 1910, § 4533; Code 1933, § 37-117.)
- This section is derived from the decisions in Carmichael v. Foster, 69 Ga. 372 (1882), Wilson v. Wright, 72 Ga. 848 (1884), and Weems v. Harrold, Johnson & Co., 75 Ga. 866 (1885).
This section did not apply to an action in which purchasers of a farm sued their vendor's former partner to recover horses that the former partner was awarded in a lawsuit against the vendor and which the former partner obtained as the result of a levy on the judgment. Russell v. Lawrence, 234 Ga. App. 612, 507 S.E.2d 161 (1998).
Cited in Bennett v. Stokey, 164 Ga. 694, 139 S.E. 346 (1927); Plainville Brick Co. v. Williams, 170 Ga. 75, 152 S.E.2d 85 (1930); Jackson v. Massachusetts Mut. Life Ins. Co., 183 Ga. 659, 189 S.E. 243 (1936); A.B. Farquhar Co. v. Myers, 194 Ga. 220, 21 S.E.2d 432 (1942); Foster v. Rowland, 194 Ga. 845, 22 S.E.2d 777 (1942); Fleminster v. Billups, 202 Ga. 132, 42 S.E.2d 376 (1947); Wilson v. Blake Perry Realty Co., 219 Ga. 57, 131 S.E.2d 555 (1963).
- Lis pendens, whether it be from the common law as provided in this section or by statute (T. 44, Ch. 14, Art. 9), has for its purpose the protection of innocent purchasers of real property involved in pending litigation. Patent Scaffolding Co. v. Byers, 220 Ga. 426, 139 S.E.2d 332 (1964).
Lis pendens is the jurisdiction, power, or control which courts acquire over property involved in a suit, pending the continuance of the action, and until the final judgment therein. Coleman v. Law, 170 Ga. 906, 154 S.E. 445 (1930).
The underlying, if not the sole, object of the maxim "pendente lite nihil innoverture," is to keep the subject of the suit 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. Carmichael Tile Co. v. Yaarab Temple Bldg. Co., 177 Ga. 318, 170 S.E. 294 (1933).
While special circumstances may alter the rule, it is the general rule that where the rights of the plaintiff to the property in question are secured under the rule of lis pendens, the judge in the exercise of his discretion may refuse an interlocutory injunction. Ingram & Le Grand Lumber Co. v. McAllister, 188 Ga. 626, 4 S.E.2d 558 (1939).
An application in the court of ordinary (now probate court) to probate a will, which, although denied for lack of evidence to prove it, was still pending therein, was not a suit within the meaning of the law of lis pendens, and did not operate so as to affect the title of one who purchased at the sale of the administrator, the appointment and sale taking place subsequently to an order of the ordinary (now probate judge) denying probate, although the will on the original application was thereafter duly probated. Scarborough v. Long, 186 Ga. 412, 197 S.E. 796, cert. denied, 305 U.S. 637, 59 S. Ct. 107, 83 L. Ed. 410 (1938).
To the existence of a valid and effective lis pendens, it is essential that three elements be present: the property must be of a character to be subject to the rule; the court must have jurisdiction both of the person and the subject matter, and the property involved must be sufficiently described in the pleadings. Walker v. Houston, 176 Ga. 878, 169 S.E. 107 (1933); Carmichael Tile Co. v. Yaarab Temple Bldg. Co., 177 Ga. 318, 170 S.E. 294 (1933); Ingram & Le Grand Lumber Co. v. McAllister, 188 Ga. 626, 4 S.E.2d 558 (1939).
The general rule is that lis pendens, duly prosecuted, and not collusive, is notice to purchaser so as to affect and bind his interest by the decree. Ingram & Le Grand Lumber Co. v. McAllister, 188 Ga. 626, 4 S.E.2d 558 (1939).
Lis pendens in itself does not create a lien of any kind, but merely charges the purchaser with notice of the pending action. If the judgment in the pending action does not create a lien on the property, certainly notice of the action will not. Carmichael Tile Co. v. Yaarab Temple Bldg. Co., 177 Ga. 318, 170 S.E. 294 (1933).
The doctrine of lis pendens applies to a suit brought by a creditor to prevent his debtor from conveying his property away with the fraudulent intent to hinder, delay, or defraud the creditor. Coleman v. Law, 170 Ga. 906, 154 S.E. 445 (1930).
Actions to reach property which has been fraudulently conveyed and suits to subject specific property to the payment of debts come within the doctrine of lis pendens. Coleman v. Law, 170 Ga. 906, 154 S.E. 445 (1930).
The rule of lis pendens applies to a creditor's suit to set aside a fraudulent conveyance made to defeat the creditor, so that the purchasers or other persons, acquiring interests pendente lite, take title subject to the decree in the suit. Coleman v. Law, 170 Ga. 906, 154 S.E. 445 (1930); Walker v. Houston, 176 Ga. 878, 169 S.E. 107 (1933).
The doctrine of lis pendens, properly understood and applied, will prevent a stranger from dealing with any of the parties to a pending proceeding in which a title to, or an interest in, or a lien upon designated and described real property is sought to be enforced after the proceeding is filed, and before the final decree, so as to acquire any interest in the premises involved capable of withstanding the force of the decree, or frustrating its full legal effect. Atlanta Nat'l Bank v. Brown, 173 Ga. 213, 159 S.E. 874 (1931).
If a lessee for sawmill purposes of growing trees sells the same on a valuable consideration, and afterwards colludes with a third person, who at the time of the sale has a suit pending against such lessee to establish and enforce an outstanding equitable interest in the trees, and so colluding accepts a valuable consideration from the third person, and on the basis thereof allows a consent verdict and decree for the plaintiff without trial of the issues in the case, such verdict and decree will be subject to collateral attack by the vendee as void on the ground of fraud, and will not be protected on the principle of lis pendens. In such a situation such third person should be treated as a subsequent purchaser, and not as one whose original claim became adjudicated in his favor. Ingram & Le Grand Lumber Co. v. Burgin Lumber Co., 193 Ga. 404, 18 S.E.2d 774 (1942).
A suit for specific performance of a contract for the sale of land is "notice" of the claim that the plaintiff sets up therein, from the time it is commenced and docketed; and if duly prosecuted and not collusive, one purchasing the land pending the suit is affected by the final decree rendered therein, though the suit is in a county other than the one in which the land is located. Walker v. Houston, 176 Ga. 878, 169 S.E. 107 (1933).
Lis pendens does not apply to choses in action. Shadburn Banking Co. v. Streetman, 180 Ga. 500, 179 S.E. 377 (1935).
- A lis pendens notice stating a claim to a contract right to buy certain lots in a subdivision serves as notice to future purchasers of other lots in the subdivision that the lots described in the lis pendens notice are not encumbered by restrictive covenants recorded after the contract but before the sale of the other lots. Puryear v. Deakins, 258 Ga. 618, 373 S.E.2d 15 (1988).
17 Am. Jur. Pleading and Practice Forms, Lis Pendens, § 3.
- 54 C.J.S., Lis Pendens, §§ 2, 38.
- Judgment in favor of less than all parties to contract as bar to action against other parties, 2 A.L.R. 124.
Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306.
Judgment in action on commercial paper as affecting party to the paper who was not party to the suit, 34 A.L.R. 152.
Sufficiency of notice or knowledge of pendency of action against covenantee or his privy in order to bind the covenantor by judgment, 34 A.L.R. 1429.
Conclusiveness of decree assessing stockholders of insolvent corporation as against nonresident stockholders not personally served within the state in which it was rendered, 48 A.L.R. 669, 175 A.L.R. 1419.
Lis pendens as affecting property in county or district other than that in which action is pending, 71 A.L.R. 1085.
Doctrine of lis pendens as applied against one who takes deed pending action pursuant to executory contract entered into before action commenced, 93 A.L.R. 404.
Judgment as conclusive as against, or in favor of one not a party of record or privy to a party, who prosecuted or defended suit on behalf and in the name of party, or assisted him or participated with him in its prosecution or defense, 139 A.L.R. 9.
Decree on bill of review reversing prior decree as affecting purchaser or mortgagee of real property in the interval between the original decree and the filing of the bill of review, 150 A.L.R. 676.
Necessity of filing notice of lis pendens in suit to contest a will, 159 A.L.R. 386.
Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa, 94 A.L.R.3d 676.
Total Results: 2
Court: Supreme Court of Georgia | Date Filed: 2009-06-08
Citation: 678 S.E.2d 330, 285 Ga. 487
Snippet: doctrine of lis pendens is reflected in OCGA § 23-1-18, which provides for “general notice of an equity
Court: Supreme Court of Georgia | Date Filed: 1988-10-26
Citation: 258 Ga. 618, 373 S.E.2d 15, 1988 Ga. LEXIS 436
Snippet: the claim of Deakins and his associates. OCGA § 23-1-18. Her failure to heed this notice must not work