McKoy v. Bush , 200 Ga. 759 ( 1946 )

1. Where, in a suit for divorce and alimony by a wife against her husband, the plaintiff seeks to have assigned to her the equity in a particular piece of realty, and prays that a receiver be appointed to take charge of the same, and where it appears that a receiver was in fact appointed to take charge, and he reported back to the court that he had done so, the entering of a decree in favor of the plaintiff, granting a total divorce and setting up title in her to the equity in the property sought for alimony, does not so end the litigation as to preclude the plaintiff from thereafter amending her petition of the as to compel the lienholder and his transferee to accept a tender of the amount due under the lien on the property, which was still held by the receiver, and so as to seek the cancellation of a cloud on the plaintiff's title by virtue of a purported sale by the defendant to the lienholder, and by him to another; it further appearing that such attempted transfer of title to the lienholder under the Code § 30-112, was made while the property was then, and has continued to be, in custodia legis and after the equity therein had been actually decreed in the plaintiff.

2. As seems to be recognized by all parties to this litigation, property held in custodia legis, by virtue of a duly appointed receiver, cannot be sold so as to interfere with the possession of the receiver. We find nothing in the record which would preclude the court from properly assuming that its order directing the receiver to take charge of the property had been complied with, as was claimed by the receiver himself in his own pleadings in this case; the presumption being that the receiver did his duty in taking charge as directed, and as he reported to the court he had done. No mere inference of illegal interference with his functions in the performance of his official duties will be indulged. Accordingly, the mere facts that the defendant in the divorce suit, on leaving the State, may have left the key to the house with the lienholder, and that the attorney of the lienholder may have (as he styles it) "loaned" this key to the receiver for him to make inspection, cannot be taken to constitute such evidence as would compel the court to find that the receiver had been derelict in his official duty. Especially is this true where the receiver testified that he in fact took charge of the house on the day of his appointment, and tacked a receiver's notice on the door. The property thus being in custodia legis, the transfer of title by the defendant to the lienholder was ineffective, where it further appears that at the time of the sale by the defendant to the lienholder, the title to the equity in the property had already been decreed out of the defendant, and into the plaintiff, and a notice of lis pendens, in which it was shown that a recovery was being sought for this particular property, had previously been filed with the clerk.

Judgment affirmed. All the Justicesconcur.

No. 15477. JUNE 4, 1946. STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE. Mrs. Bush sued her husband for a total divorce, and prayed for alimony. Prior to the second verdict, she amended her petition, praying that the equity in a described house and lot be assigned as alimony, subject to the lien of two security deeds held by Decatur Building Loan Association and A. A. Miller, respectively, and that a receiver be appointed to take charge of the property. The court, as prayed, appointed a receiver, who was directed to take charge of the house and lot. A few days thereafter, the plaintiff filed with the clerk a notice of lis pendens, setting forth that she was claiming for alimony in her divorce proceeding the equity in said house and lot held by the receiver. Upon the second verdict being rendered, which included a finding in favor of the plaintiff on her claim for alimony, the court decreed title in the plaintiff to the equity in the house and lot. After this verdict had been rendered, and the decree entered thereon, the plaintiff filed a second amendment, in which she set forth that Miller, the holder of the second lien, refused to accept a continuing tender of the amount of his claim; claiming that the property had been transferred to him by said Bush, and by Miller to D. D. McKoy. The petition prayed that Miller and his transferee McKoy be made parties to the cause, and that they be required to show cause why the continuing tender of the amount due in this claim should not be accepted and the lien cancelled. The court passed an order making Miller and McKoy defendants, and granted the rule as prayed for. The receiver thereafter filed his own petition setting up that he had taken charge of, and was in possession of, said house and lot under the court's order, and that the transferee refused payment of the amount due under the claim transferred to him; claiming title to the property under a quitclaim deed made by George H. Bush to Miller, and in like manner by Miller to McKoy. The receiver prayed for authority to sell the land. The defendant Bush, his lienholder Miller, who had received a quitclaim deed from Bush, and McKoy, the transferee of title from Miller, objected, and preserved their exceptions, to the allowance of the second amendment to the petition making them parties after a final decree in the divorce and alimony proceeding had been rendered. They further contend that the finding under the amendment was erroneous, in that the two transfers of title — the first by Bush to Miller for a pre-existing debt, and the second by Miller to McKoy — were good and valid. It appears from the record that the transfer of title to the property from Bush to Miller was made after notice of lis pendens had been filed, and after the decree in the divorce proceeding setting up title in Mrs. Bush had been entered. Upon the trial of the issues made by the amendment to the petition, the court, by consent acting as both judge and jury, recited that the title to the house and lot had been decreed in the plaintiff, Mrs. Bush, by its previous judgment; and further reciting that the amount due on the claim of Miller and his transferee had been paid into court for their benefit, ordered that the quitclaim deeds from Bush to Miller and from Miller to McKoy be declared void and of no effect. To this order and to the prior ruling of the court, duly excepted to, making Miller and McKoy parties defendant, Miller and McKoy now except.