Lankford v. Milhollin

In a suit against cotenants for an accounting and for rents and profits, the defendants filed a cross-action for partition by sale of the common property. The trial court rendered judgment ordering the land sold and the proceeds retained in the court subject to any lien or judgment obtained in the accounting case. That judgment was excepted to on numerous grounds, among which were that the partitioning feature should not have been tried and the land ordered sold until the defendants surrendered possession and paid the rent due, and upon the further ground that the judgment should not have been rendered before the proceeding for an accounting was tried. These attacks were overruled and the judgment affirmed. Lankford v. Milhollin, 200 Ga. 512 (37 S.E.2d 197). Thereafter the plaintiffs in the accounting suit filed a petition for equitable relief, seeking (a) to enjoin the sale until the accounting case had been tried, and (b) to enjoin the commissioners from selling the land free from any lien or judgment which might be obtained in the accounting suit. The judgment ordering the sale clearly ordered that the land be divested of all lien or claim in the accounting suit, and that such lien or claim attach to the proceeds from the sale. It follows that the issues sought to be raised by the petition have already been adjudicated adversely to the petitioners and, accordingly, the court did not err in sustaining the demurrers and in dismissing the action.

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

No. 16071. FEBRUARY 10, 1948. REHEARING DENIED MARCH 19, 1948.