Lankford v. Milhollin , 203 Ga. 491 ( 1948 )

1. Where a judgment registering title to land does not expressly render it subject to an existing claim of lien, the holder of the registered title takes it free from such claim of lien, and where a later suit is instituted to obtain a judgment establishing such lien, and the claimant files and has recorded as provided by law notice of lis pendens, the owner may file his caveat and petition to cancel the notice of lis pendens upon the ground that the judgment of registration precludes a judgment establishing a lien on the land, and the caveat alleging these facts is not subject to general demurrer.

2. Where, upon the trial of an issue thus made, the court records, which were put in evidence, show that the lien is claimed for a period antedating the title-registration judgment, and that no notation thereof appears on the registration record, the evidence demands a judgment ordering cancellation of the claim or notice of lis pendens, and whether or not the court erred in admitting other evidence over objection is immaterial, and the merits of such objections will not be decided.

No. 16114. FEBRUARY 10, 1948. REHEARING DENIED MARCH 19, 1948. On February 19, 1943, by a decree of the Superior Court of Coffee County, Georgia, in an action for registration of land, wherein Mattie L. Lankford, J. H. Milhollin, and N.E. Holton were parties, title to a certain tract of land in the said county, and involved in the present case, was duly registered in the name of J. H. Milhollin and N.E. Holton, and a certificate of title was issued accordingly, not subject to any lien or claim of Mattie L. Lankford. On September 5, 1947, Mattie L. Lankford filed a notice of lis pendens, in which it was asserted that she was seeking a lien for rents and profits against the said registered land in a proceeding pending in the superior court, which also sought to set aside and cancel the decrees of title to any of the defendants. Pursuant to the notice, the clerk of the superior court made an entry on the registry of title to the effect that the land was subject to an equitable lien of Mattie. L. Lankford in the amount and to the extent that may be determined in the proceedings referred to in the claim of lien, and that the decrees of title and registration may be set aside as appears in such proceedings. On September 25, 1947, J. H. Milhollin and N.E. Holton filed a plea, designated as a caveat, in which it was alleged that the petitioners were the holders of a land-registration certificate of title to the land involved, and alleged that Mattie L. Lankford had no valid lien against the land, for the reason that a valid decree of the Superior Court of Coffee County in the land-registration case, in which the petitioners and Mattie L. Lankford were parties, rendered on February 19, 1943, in compliance with directions of the Supreme Court, eliminated any claim or interest of Mattie. L. Lankford in the said land and vested in the caveators a fee-simple title, subject only to specified liens in favor of other parties. It was further averred that all the questions raised in the proceedings referred to in the claim of lien have been adjudicated in the Superior Court of Coffee County adversely to Mrs. Mattie L. Lankford; that in the said proceedings Mrs. Mattie L. Lankford had by judgment of the court been permanently enjoined from prosecuting the same upon the ground that all questions raised therein had been previously adjudicated against her; and that all such questions were or could have been adjudicated in the land-registration case. Copies of the notice filed by Mrs. Mattie L. Lankford and notation by the clerk on the title register were attached as exhibits.

To the caveat Mrs. Mattie L. Lankford filed general and special demurrers and also what she called a traverse, which denied all allegations of the caveat. The court overruled the demurrers, and error is assigned in the present bill of exceptions to that ruling.

Thereafter the case proceeded to trial before the judge, and the caveators introduced a copy of the proceeding referred to in the notices filed by Mrs. Mattie L. Lankford and recorded, and the proceedings and all records pertaining to the registration of title, including the decisions of the Supreme Court affirming the judgments of the trial court in favor of the caveators and against Mrs. Mattie L. Lankford. Mrs. Mattie L. Lankford introduced copies of some of the pleadings pertaining to this land, all of which evidence is too voluminous to set forth here. There were included in the documents introduced by the caveators a judgment of the trial court, and a judgment of the Supreme Court affirming the same, registering title to the land in question in the caveators, subject to no claim whatever of Mrs. Mattie L. Lankford; also a judgment of the trial court permanently enjoining her from instituting or prosecuting any future action based upon any title or claim to or interest in the land here involved. Thereupon judgment was rendered ordering that the claim of lien referred to in the caveat "be and the same is hereby cancelled," and directing that the same be stricken from the record wherever it appeared, and that the order be entered of record at the place where the claim of lien is recorded and where notice of the claim of lien is made. To this judgment Mrs. Mattie L. Lankford excepts, assigning error also upon the judgment overruling her demurrers to the caveat and the judgment disallowing an amendment, which she offered to her traverse, and to the judgment overruling a number of objections which she interposed to the documentary evidence introduced by the caveators. 1. By the plain provisions of the Code, § 60-419, the caveators held title in fee simple to the land in question in virtue of the decree of registration, free from any and all adverse claims, rights, or incumbrances not noted on the certificate of title in the title register except: "First. Liens, claims, or rights arising or existing under the laws or Constitution of the United States which the statutes of this State cannot require to appear of record under registry laws. Second. Taxes and levies assessed thereon for the current calendar year. Third. Any lease for a term not exceeding three years, under which the land is actually occupied. Fourth. Highways in public use, and railroads in actual operation;" and except in cases of fraud or forgery to which they are parties or to which they are privies without valuable consideration paid in good faith. Any attack upon these grounds must be made within seven years. It is too obvious to call for argument or extended discussion that the alleged claim of Mrs. Lankford in the present case does not come within any of the four exceptions above quoted. It therefore follows as a matter of law that her alleged claim of lien for rents and profits for a period preceding the judgment of registration can not become a lien against the land thus registered, since it was not noted on the registration records.

A further question requiring a decision here is whether or not under the law the caveators proceeded as provided by law and alleged grounds entitling them to the relief sought. Mrs. Lankford would be entitled under the Code, §§ 60-417 and 60-426, to have recorded notice of the lis pendens where the pending proceeding might enable her to recover judgment affecting the title to the land. The owners, however, under the Code, § 60-416, are authorized to challenge and have removed any such notation in the manner here followed when they can show that the notation should not remain of record. The act of 1917 (Ga. L. 1917, p. 136; Code, § 60-418) provides for voluntary cancellation of entries by the clerk upon the title register of the notation of lis pendens, but it does not authorize involuntary cancellation. This law was amended in 1943 (Ga. L. 1943, pp 326, 329; Code, Ann. Supp., § 60-418) by providing for the involuntary cancellation of incumbrances, including "lis pendens," if the debt has been paid or is no longer existing, or "if it is no longer legal and equitable that the registered title shall be incumbered by the same;" and providing further that, when a hearing on the petition to cancel has been held as therein outlined, "if it shall appear that the registered title should be free from the incumbrance, the court shall decree accordingly and order the cancellation noted upon the certificate of title." The caveat as amended alleged that there had been an adjudication by the judgment of registration, and that the land was free from any lien of Mrs. Mattie L. Lankford. If this allegation is established by proof, then it would be made to appear that the "registered title should be freed" from the incumbrance of the notice of lis pendens. It therefore contains sufficient allegations to authorize cancellation as prayed and was sufficient to withstand the general demurrer. The ground of special demurrer insisted upon, which sought to require the caveators to attach voluminous pleadings, is so palpably without merit that further discussion is unnecessary. Nor did the court err in disallowing the proffered amendment of the plaintiff in error to her traverse, which amendment set forth voluminous copies of the pleadings and judgment in another case wherein Mrs. Mattie L. Lankford had by such judgment been permanently enjoined from further prosecution of any claim against the land here involved, and which amendment attacked the judgment upon the ground that it was unauthorized by the pleadings.

3. Upon the trial the caveators introduced voluminous pleadings in the trial court, together with judgments therein, and decisions of the Supreme Court affirming such judgments, which records showed that Mrs. Mattie L. Lankford was a party to the registration suit, that it was held therein that she had no interest in or title to the land in question, and that title was registered in the caveators, free from any lien or title of Mrs. Mattie L. Lankford, and that she had been permanently enjoined from prosecuting any further suit affecting the title to this land. This documentary evidence also showed that the rents and profits claimed in the proceedings referred to were during a period prior to the judgment of registration. This evidence demanded a finding that the recorded notice of lis pendens was unauthorized and should be canceled. Since, as just ruled, the evidence demanded the judgment complained of, the plaintiff in error was not harmed by any of the rulings admitting other documents in evidence over objection. It is, therefore, unnecessary to decide whether or not the evidence complained of was admissible over the objections made. The judgment registering the title freed the land from any and all pre-existing claims against the same that were not noted on the title register at the time except those which are above pointed out and which did not include the claim here asserted.

Judgment affirmed. All the Justices concur, except Bell, J.,absent on account of illness, and Wyatt, J., who took no part inthe consideration or decision of this case.