Tanner v. White , 146 Ga. 338 ( 1916 )

Beck, J.

(After stating the foregoing facts.) We are of the opinion that the court erred in sustaining the general demurrer to the petition of B. H. Tanner. If his allegations are true, the suit between Mrs. White and Hinson was collusive' and designed to effect a fraudulent transfer of the property. Tanner was a purchaser who had paid a valuable consideration for the property. Mrs. White was a donee, and sought to have specific performance of her father’s promise to give her the property. She was not entitled to a deed under a decree of specific performance as against one who was a purchaser for a valuable consideration, and who had bought without notice of the gift. It is true that if, as alleged in Tanner’s petition, the suit between Mrs. White and Hinson was collusive, Tanner would not be barred by the doctrine of lis pen-dens from afterwards asserting his rights as.against Mrs. White and Hinson; but there is no good reason for holding that he can not now be made a party defendant and, as a party to this pending case, assert and have established his rights as purchaser. If Tanner is turned out of court and a decree for specific performance between Mrs. White and Hinson is rendered, it might constitute a cloud upon Tanner’s' title. Taking the allegations of the petition as true, he has caught both the wrong-doers facing each other in a court of equity. They have brought themselves there, and he is there asking that he be allowed to set up and establish his claim antagonistic to both; and the court should grant his prayer. The whole controversy will be settled in one case. In the case of Allen v. Mitchell, 143 Ga. 476 (85 S. E. 336), it is said: “Our code provides that 'all persons interested in the litigation should be parties to proceedings for equitable relief.’ Civil Code, § 5417. Some exceptions to this rule are stated in the section referred to; but it is not necessary to consider them, as the parties here fall within none of the exceptions. In-equity it is the general practice to permit strangers to a litigation, who claim and show an interest in such a matter, to intervene and assert and have established rights which would be affected by the decree in the case. 11 Enc. PI. & Pr. 498 et seq. The broad rule laid down in the work last cited has probably been to a certain extent deduced from judicial construction of statutes in certain States in reference to the subject of intervention, and may be somewhat broader than the rule in this State; but under our code provision quoted above, the rule here is not so narrow as to exclude parties showing a direct interest in the subject-matter of the suit, which'is set up by the plaintiffs in error here. Generally a court of equity will extend to one who is not a party to the bill the privilege of becoming a party, at his own instance, when from the case made it appears that the ends of justice would be subserved by it. Phillips v. Wesson, 16 Ga. 137; Blaisdell v. Bohr, 68 Ga. 56.” What is there said is very closely in point under the facts of this case.

Judgment reversed.

All the Justices concur.