180 Ga. 785 | Ga. | 1935
The Land Development Corporation filed its petition in the nature of a bill quia timet, and for cancellation, against Union Trust Company of Maryland, Mortgage Security Corporation of America, G-reyling Eealty Corporation, and L. P. Baker, in which it prayed that a certain loan deed be canceled, and that the defendants be enjoined from foreclosing such loan deed
It appeared that’ prior to the time .ydieji plaintiff purchased the
A decree entered in an equitable proceeding brought to enjoin foreclosure of a loan deed encumbering the premises in con
Even though the premises in controversy were thereafter, while the loan deed appeared canceled of record, conveyed by warranty deed for a valuable consideration to the plaintiff, who had aao knowledge of the nullity of such decree of cancellation and satisfaction, which was marked across the face of the record of such loan deed, save such as an examination of the proceediaag in which the same was entered would reveal, such void judgment aoad decree would not avail the plaintiff as against the grantee in the loaaa deed, and did not operate to vest in the plaintiff any title or right as a bona fide purchaser, and he took subject to the right of the grantee
The defendants in the equitable proceeding properly filed a petition, during the term at which such void decree was entered, to arrest and set aside the same in so far as it canceled and satisfied such loan deed; and the order of the judge before whom the issue was heard (after issuance of a rule nisi calling upon the petitioner in that proceeding to show cause why such decree should not be arrested and set aside), arresting and setting said judgment and decree aside in so far as it canceled and satisfied such loan
In this case the Union Trust Company of Maryland was. named as codefendant with several others, but was never served in proper manner. Where one is not a party to a suit, it can not be bound by the judgment therein rendered. Hodges v. Stuart Lumber Co., supra. In many cases it has been held that where an equitable petition for cancellation of a deed is filed, all parties to the deed are necessarily parties defendant. “The court could not undertake to cancel a written instrument conveying title to property without having before it all parties to' be affected by the proposed cancellation.” Malone v. Kelly, supra. “Trustees constitute but one person in law, and, like executors, etc., must join in a suit concerning their trust. Similarly where several trustees hold property jointly, all are ordinarily necessary parties to an action concerning it.” 65 C. J., 872, § 763.. And we do not think this rule is changed by a specific clause in an instrument, unless the same be specific, concise, and dealing with the particular point under discussion.
'The plaintiff filed its bill quia timet against the grantee in the loan deed and others, to enjoin foreclosure of the loan deed, and to quiet the title to said premises conveyed to him by warranty deed by the grantor in the loan deed at a time when the same appeared canceled and satisfied of record, and to remove the clouds from his title to said premises, alleging that by reason of his having purchased said premises in good faith for a valuable consideration from the grantor in the loan deed, free of all liens and encumbrances, he acquired a good fee-simple title thereto as against the grantee in the loan deed and as against the world. Under the rulings heretofore made, the judge did 3iot err in directing a verdict for the'defendants, holding that such decree was void and that
An amendment offered by .the plaintiff on May 30, 1934, after the rendition of the verdict against it on May 25, 1934, was properly disallowed as coming too late. Real Estate Bank &c. Co. v. Baldwin Locomotive Works, 145 Ga. 105 (88 S. E. 584); Southern Mutual Insurance Co. v. Turnley, 100 Ga. 296 (7), 302 (27 S. E. 975); Cureton v. Cureton, 120 Ga. 559 (48 S. E. 162); City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318); Ga. Motors Inc. v. Wade, 37 Ga. App. 24 (138 S. E. 797). The judge properly overruled the plaintiff’s motion for a new trial, assigning error upon the direction of a verdict against the plaintiff, the effect of which was that plaintiff took title to the premises subject to the loan deed.
Judgment affirmed.