Vines v. Lee , 194 Ga. 520 ( 1942 )

1. Where a wife filed suit alleging that she was in possession of certain real estate the legal title to which was in her husband, and that while a suit for divorce was pending in which this identical property was scheduled, and after a lis pendens motion had been filed in the clerk's office, the husband had conveyed the property to the defendants, who threatened to dispossess her, and praying that said deed be surrendered and canceled, that the defendants be enjoined from coming on said premises or in any manner threatening her, and that a decree be entered subjecting said property to her claim for alimony, and for general relief; and a demurrer to the petition was overruled, and an interlocutory injunction granted, and the defendants sued out a writ of error to this court, assigning error on those rulings, and it appearing in a motion to dismiss and the response thereto that after the case reached this court the property referred to in the divorce suit was awarded to her as permanent alimony, a motion to dismiss the writ of error, on the ground that the issues have become moot, is overruled.

2. A suit of the character indicated above, by a wife against the grantees in a deed from her husband, executed after the filing of her action for divorce and alimony, but before the property was awarded to her as alimony, should have been dismissed on general demurrer, since as to such property she has neither title nor the right of possession unless and until the jury awards it to her as alimony.

3. It follows that it was erroneous to grant a temporary injunction forbidding the grantees from entering possession thereof.

No. 14182. SEPTEMBER 22, 1942. 1. The defendant in error in her petition alleged that the legal title to the realty involved was in her husband, who had conveyed it to the plaintiffs in error pending her suit against the husband for divorce and alimony, in which suit she had scheduled this identical property. She further alleged that she was in possession, and asked that plaintiffs in error be enjoined from interfering with her occupancy, and that a decree be entered subjecting the property to her claim for alimony. It has been ruled, in effect, that one who before the rendition of the verdict in such a suit acquires an interest in property so scheduled takes it subject to any verdict subsequently rendered.Perry v. First National Building Loan Association,174 Ga. 914 (164 S.E. 804). This is not an authority, however, that supports the contention that before it has been awarded to her as alimony she is entitled, in a suit against her husband's grantee, to any of the relief prayed for in the instant case. These plaintiffs in error by a timely and appropriate demurrer challenged her asserted right. It was overruled. After introduction of evidence, the judge temporarily enjoined them from interfering with her possession. Error is assigned on both rulings. Since the case reached this court the wife in her divorce suit has been awarded the property as alimony. On that state of facts a motion to dismiss the writ of error has been made. It has several times been ruled that in no case will the Supreme Court undertake to pass upon questions presented by a bill of exceptions, when an adjudication of them, even though favorable to the plaintiff in error, could not possibly result in any practical benefit to him. Benton v. Singleton, 114 Ga. 548 (40 S.E. 811, 58 L.R.A. 181); Davis v. Jasper,119 Ga. 57 (45 S.E. 724); Arnold v. Arnold, 180 Ga. 560 (179 S.E. 715). None of the rulings, however, have been applied to a case like this. The plaintiff when she filed her suit showed no right to the relief sought, because she had neither title nor right of possession. Since that time, and after the record reached this court, she obtained both title and the right of possession. If under these circumstances the writ of error could be dismissed on the ground that the questions had become moot, the same result would follow in a case where a plaintiff sued in trover for property which he claimed, and, without showing title or possession, procured a verdict and judgment, and after the litigation found its way to this court he acquired title thereto. It could as well be said in that case that a reversal could not possibly be of any practical benefit to the defendant. The answer to the suggestion is, that if the plaintiff had no right to bring the suit at the time it was filed, a writ of error that protests an erroneous judgment is not rendered barren merely because, since the rendition of the judgment, he has acquired a right of action. The motion to dismiss is overruled.

2. The general demurrer to the petition should have been sustained. The allegations showed no right to any of the relief sought. A wife, as to property owned by her husband and which is scheduled in a suit for divorce and alimony filed by her, has no title unless and until the particular property is by the jury awarded to her as alimony. Although as to such property duly scheduled a grantee in a conveyance from the husband, executed after the filing of the divorce suit, takes it subject to any verdict subsequently rendered in such suit, this puts no title in the wife until such an award is made, and does not authorize a court, in a suit by her against such grantee, to decree that the property be subjected to her claim for alimony, and to enjoin the grantee from interfering with her possession.

3. It was also erroneous to grant the injunction.

Judgment reversed. All the Justices concur.