Ingram Legrand Lumber Co. v. Burgin Lumber Co. , 193 Ga. 404 ( 1942 )

1. "Decrees ordinarily bind only parties and their privies; but a pending suit shall be a general notice of an equity or claim to all the world from the time the petition shall be filed and docketed; and if the same shall be duly prosecuted and shall not be collusive, one who purchases pending the suit shall be affected by the decree rendered therein." Code, § 37-117.

2. 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. The statement, "it appears to us that, whatever may be the rights of the plaintiff in and to the property in question, a decree in the present case establishing its right thereto would prevail over the rights of any person who may purchase the same from the defendant," in Ingram LeGrand Lumber Co. v. McAllister, 188 Ga. 626, 631 (4 S.E.2d 558), contemplated a valid judgment, not one that as against a future purchaser would be void for fraud. This distinction applies also to the rulings in Bennett v. Stokey, 164 Ga. 694 (139 S.E. 346); Coleman v. Law, 170 Ga. 906 (7) (154 S.E. 445).

3. The judge did not err in overruling the demurrer to the answer as twice amended.

4. The evidence, though conflicting in part and without conflict in other parts, was sufficient to support the verdict for the defendant, and there was no abuse of discretion in refusing a new trial.

Judgment affirmed. All the Justicesconcur.

No. 13906. JANUARY 13, 1942. REHEARING DENIED FEBRUARY 13, 1942. Ingram LeGrand Lumber Company, hereinafter called Ingram, instituted a suit against Burgin Lumber Company, hereinafter called Burgin, to enjoin the cutting of standing timber on the north half of lot 221 in district 32 of Marion County. The exceptions are to the overruling of the plaintiff's demurrer to the defendant's answer, and to the refusal of a new trial after verdict for the defendant. The timber is the same as involved inIngram LeGrand Lumber Co. v. McAllister, 188 Ga. 626 (supra), and Ingram LeGrand Lumber Co. v. Burgin LumberCo., 191 Ga. 584 (13 S.E.2d 370), to which reference is made for more complete statement. On facts alleged in the case first cited, verdict and decree were rendered, so reforming the lease under which Ingram on the basis of alleged equity claimed right to the timber that the lease would include the timber in question and establish Ingram's right. The decree also enjoined defendant Wesley McAllister from disposing of the timber. In the case last cited it was held that Burgin was not entitled to the statutory remedy of a motion to set aside the verdict and decree, because he was not a party to the suit in which they were rendered. Before the suit in the case first cited, J. F. Duke had executed a lease to Wesley McAllister. While that suit was pending, Burgin on a valuable consideration purchased the timber from Wesley McAllister. It was after such purchase that the verdict and decree were rendered. In Burgin's answer as twice amended it was alleged that defendant was a bona fide purchaser for value, and the verdict and decree were attacked as collusive, fraudulent, and void as against defendant, because they did not result from orderly trial of the issues made by the pleadings, but were by consent of the parties induced by payment of money by Ingram, and other valuable considerations, amounting in substance to original purchase of the timber from Wesley McAllister after Burgin's right to the timber had attached.