Slattery v. P. L. Renoudet Lumber Co., No. 21724

No. 21724 | Miss. | Mar 15, 1921

Ethridge, X,

delivered the opinion of the court.

The appellant, acting as a real estate agent, and representing the Southwestern Lumber & Box Company, undertook to sell, and did sell, to the appellee the Benoudet Lumber Company, Limited, certain timber lands situated in Adams and Wilkinson counties, and after the sale was made, and before the deed was returned to Natchez for recordation, this attachment was sued out against the Southwestern Lumber & Box Company, in the chancery court, and the appellee Benoudet Lumber Company was made a party and served as a defendant and as garnishee. But before the service of the process on defendant the Benoudet Lumber Company, the deed was returned and placed to record. The appellee Benoudet Lumber Company filed an answer denying that it was indebted to the Southwestern Lumber & Box Company, or that it had property belonging to the said company, or that it knew of others having such pi-operty, and also denied that the Southwestern Lumber & Box Company owned any of the land described in the bill, or any interest therein. The Southwestern Lumber & Box Company did not appear, .and was served only by publication; it being a nonresident of the state of Mississippi.

The court, on the hearing on motion, discharged the garnishee, the Benoudet Lumber Company, and entered an order canceling the Us pendens notice filed iii the two counties; from which order canceling the Us pendens notice of formal appeal was prosecuted to this court, and the judgment canceling the lis pendens notice was reversed until the issue between the appellant and the Southwestern Lumber & Box Company should be determined in the court below. The former appeal is reported in 120 Miss. 621" court="Miss." date_filed="1919-03-15" href="https://app.midpage.ai/document/slattery-v-p-l-renoudet-lumber-co-7993485?utm_source=webapp" opinion_id="7993485">120 Miss. 621 et seq., 82 So. 332" court="Miss." date_filed="1919-03-15" href="https://app.midpage.ai/document/slattery-v-p-l-renoudet-lumber-co-7993485?utm_source=webapp" opinion_id="7993485">82 So. 332.

Subsequent to the attachment being served, the Renou-det Lumber Company sold the timber and timber lands involved, to the Waddell-Williams Lumber Company, a Louisiana corporation, and after the cause was remanded to the court below, this company filed a petition to be permitted to intervene to protect its rights and to have the lis pendens notice canceled as against its lands in Wilkinson county; and the appellee, the Renoudet Lumber Company moved to cancel the Us pendens notice as to the lands in Adams county.

The attachment was levied on the lands in Wilkinson county on September 11th and Us pendens notice sent with the process, but no defendant was served in Wilkinson county, and no property therein attached except that involved in the sale on which the cláim of the complainant is founded.

There was no proof taken by the complainant to show ownership of the timber or any interest therein in the Southwestern Lumber & Box Company, other than the attachment proceedings and the deed from the Southwestern Lumber & Box Company to the Renoudet Lumber Company, and no other property was attached.

The following assignments of error are filed:

(1) The court erred in rendering the decree of February 9, 1920, discharging the attachment and canceling notice of Us pendens as to lands in Adams county.

(2) The court erred in overruling the motion of the appellant that the Waddell-Williams Lumber Company should not be heard until the appeal cost, taxed to the Renoudet Lumber Company by this court, but paid by .the appellant, bag been paid by tbe gaid Waddell-Williamg Lumber Company or tbe Renoudet Lumber Company.

(B) Tbe court erred in overruling tbe motion of appellant that neither tbe Waddell-Williamg Lumber Company nor tbe Renoudet Lumber Company could be heard in the cause.

(4) The court erred in sustaining tbe motion of the Waddell-Williamg Company in rendering a decree therein discharging tbe attachment and cancelling tbe notice of lis pendens as to lands in Wilkinson county, levied on ip this suit.

Tbe decree of February 9, 1920, discharging tbe attach-* ment and canceling the notice of lis pendens as to the Adams county lands, we think, was proper because it clearly appears that the appellant’s suit is based on a commission claimed from the Southwestern Lumber & Box Company for the sale of the lands in controversy to the Renoudet Lumber Company, and that the purchase money was paid for these lands prior to the service of the attachment and garnishment. The appellant does not contest, or did not contest, the answer to the garnishee, the Renou-det Lumber Company, that it had paid the purchase money and owed the Southwestern Lumber & Box Company nothing at the time of the service of the writ. The suit could not be sustained unless the said company owed the Southwestern Lumber & Box Company some money, or unless the said lumber company owned some property, other than that attached by the complainant, in the state in which it was attached. The appellant cannot contend that the com-' pany owned an interest in the property because the foundation of his claim to a commission depends upon a sale of property, and there is no pretense that the property attached is not the property sold by the Southwestern Lumber & Box Company to the Renoudet Lumber Company.

It further appears that the deed from the Southwestern Lumber & Box Company to the appellee, Renoudet Lumber Company, w.as executed and delivered prior to the service of the attachment and the filing of the lis pendens in Adams county. No lien could be established until the writ was served. It is the seizure of property under attachment proceedings that creates the lien on the property; inasmuch as no property except that sold by complainant was attached., the attachment fails.

The contention that the appellees Waddell-Williams Lumber Company, who bought from the Renoudet Lumber Company subsequent to the attachment, should not be allowed to intervene, and that the Renoudet Lumber Company should not be allowed to reappear in court and make motion to cancel the Us pendens notice after it had been discharged by the former judgment as garnishee, is also unsound in our opinion. The Us pendens notice would appear to create a cloud on the title of these appellees. It might seriously affect their ability to sell or finance said property so long as the attachment proceedings stood against them. It is true it 'could file a separate bill to have these notices canceled, but we think it could also intervene and prevent the establishment of a cloud by a judgment of the court. Whenever a party has a claim to property in litigation, which might be adversely affected by the litigation^ though he is not a party to the litigation, he may become a party on motion for the purpose of protecting his own property from being jeopardized or his title from being beclouded.

There is no merit in the contention of the appellant that the appellee should have been required to pay the costs incurred on the former appeal before coming into court to protect their rights. The judgment can be enforced on execution. But if it cannot be collected on execution, there is no such connection between the duty to pay the judgment and the right sought to be enforced here as would prevent a party coming into equity for the purpose of preventing an injustice being done him or his property by affecting the title to his property.

On the facts in the present record, we think the chancellor was justified in rendering the decree as rendered, and the judgment will be affirmed.

Affirmed.