Dutcher v. Haines City Estates, Inc.

Fifth Circuit

Dutcher v. Haines City Estates, Inc.

26 F.2d 669, 1928 U.S. App. LEXIS 3765

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 13, 1928

DocketNo. 5227

StatusPublished

Cited by3 cases

This text of 26 F.2d 669 (Dutcher v. Haines City Estates, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dutcher v. Haines City Estates, Inc., 26 F.2d 669, 1928 U.S. App. LEXIS 3765 (5th Cir. 1928).

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Opinion

FOSTER, Circuit Judge.

Appellants filed a bill against the Haines City Estates, Inc., and certain officers of that corporation, alleging fraudulent misappropriation of moneys paid in for the purpose of purchasing and improving certain lands described in the bill, and, claiming a lien on said lands, also filed a notice of lis pendens in the office of the clerk of the circuit court of Polk county, Florida. The bill further prayed for a receiver, but apparently no receiver was appointed.

After the institution of this suit the Commercial Bank & Trust Company of Haines City obtained a final judgment against the Haines City Estates, Inc., for $2,200, levied on certain property covered by the notice of lis pendens, and at the sale bought it in. The bank was then allowed to intervene, for the purpose of having the lis pendens canceled as to its property, and obtained judgment to that effect. To reverse that judgment this appeal is prosecuted.

It is not disputed that the title of the bank is superior to any lien asserted by appellants to the property, but it is contended the bank is a stranger to the suit, has no interest therein, and should not have been permitted to intervene. We are not impressed with the contention of appellants. It would be strange indeed if a court of equity could not remove a cloud on the title of property admittedly belonging to a third person, created by proceedings then pending before it, and without waiting for the termination of the suit. It is immaterial that the title was acquired by the bank pendente lite, as it is valid and cannot be affected by the pending litigation. The District Court had jurisdiction to allow the intervention and to render judgment as it did. Krippendorf v. Hyde, 110 U. S. 276, 4 S. Ct. 27, 28 L. Ed. 145; Mellen v. Moline Iron Works, 131 U. S. 352, 9 S. Ct. 781, 33 L. Ed. 178.

Affirmed.

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FOSTER, Circuit Judge.

Appellants filed a bill against the Haines City Estates, Inc., and certain officers of that corporation, alleging fraudulent misappropriation of moneys paid in for the purpose of purchasing and improving certain lands described in the bill, and, claiming a lien on said lands, also filed a notice of lis pendens in the office of the clerk of the circuit court of Polk county, Florida. The bill further prayed for a receiver, but apparently no receiver was appointed.

After the institution of this suit the Commercial Bank & Trust Company of Haines City obtained a final judgment against the Haines City Estates, Inc., for $2,200, levied on certain property covered by the notice of lis pendens, and at the sale bought it in. The bank was then allowed to intervene, for the purpose of having the lis pendens canceled as to its property, and obtained judgment to that effect. To reverse that judgment this appeal is prosecuted.

It is not disputed that the title of the bank is superior to any lien asserted by appellants to the property, but it is contended the bank is a stranger to the suit, has no interest therein, and should not have been permitted to intervene. We are not impressed with the contention of appellants. It would be strange indeed if a court of equity could not remove a cloud on the title of property admittedly belonging to a third person, created by proceedings then pending before it, and without waiting for the termination of the suit. It is immaterial that the title was acquired by the bank pendente lite, as it is valid and cannot be affected by the pending litigation. The District Court had jurisdiction to allow the intervention and to render judgment as it did. Krippendorf v. Hyde, 110 U. S. 276, 4 S. Ct. 27, 28 L. Ed. 145; Mellen v. Moline Iron Works, 131 U. S. 352, 9 S. Ct. 781, 33 L. Ed. 178.

Affirmed.

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Bluebook (online)

26 F.2d 669, 1928 U.S. App. LEXIS 3765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dutcher-v-haines-city-estates-inc-ca5-1928.

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