Tracing Georgia's English Common Law Equity Jurisprudential Roots: Quia Timet

By Keenan, Jesse M. | The Journal of Southern Legal History, January 1, 2006 | Go to article overview

Tracing Georgia's English Common Law Equity Jurisprudential Roots: Quia Timet


Keenan, Jesse M., The Journal of Southern Legal History


To many Georgians, Georgia's relationship to English Common Law is purely a historic one. Georgia, however, has a strong and rich tie to our English forefathers in a way that is very much a part of our living history. This Article examines the evolution of a long-forgotten ancient legal writ from its nascent development in the Anglo-Norman courts to its relative extinction in Georgia. The function of this Article is to rethink the conventional notions of a bill quia timet. Quia timet is often seen in modern practice as being in the domain of a select class of lawyers in the field of real estate. In fact, to many practitioners, a bill quia timet is "a concept that pre-dates [any] movable type, and has virtually no application in modern society."1 This Article will be devoted entirely to examining the notion that a bill quia timet is not exclusively situated to address modern issues concerning cloud of title of real property, but can be, and has been, historically applied to multiple issues arising under equity jurisdiction.

We will begin the examination of this subject by tracing the roots of the bill quia timet from the early English common law courts to the modern English developments that had a profound impact on early equity practice in Georgia. A close look at the key cases and concepts from the past and the present will help to understand and parcel through what can be a very disconnected equitable practice. Next, we will move our examination to equity practice in Georgia by looking briefly at the modern statutory manifestations of quia timet.2 The remainder of this Article will be allotted to tracing the role of quia timet in Georgia practice outside of the conventional notions of quieting title.3

Quia timet literally means "because he fears."4 As a general rule of equity practice in the United States, an equity court will not fashion a remedy or hear a petition to determine the rights of parties in the future or upon some contingent harm in the future.5 However, "[e]quitable actions not only are remedial in their nature, but may also be brought for the purpose of restraining or enjoining the infliction of contemplated wrongs or injuries and the prevention of threatened illegal actions which may be the occasion of serious injury to others."6 Modern manifestations of this thought dictate that a quia timet action is available to protect a party against a probable and anticipated future injury that cannot be prevented by an action at law.7 This is a very profound nuance in the law of equity. But this leaves the question: what are the origins of this nuance at common law? We must look to the courts of England for the answer.

The earliest recorded cases to entertain the concepts of quia timet are found as early as 1308.8 These writs were initially used in tandem with the writ of prohibition.9 The writ of prohibition at this time was primarily used to address a harm before it occurred.10 It should be noted that a bill quia timet was not always fashioned as such. In fact, as we will see in later cases, it revolves around a sort of lost maxim of equity, which dictates that "equity prevents mifchief[] and it is unreafonable that a man fhould have a demand continually hanging over him."11 Whether this is a lost maxim of equity can be left to the academics in this field. Nevertheless, this is a phrase that was repeated in English Chancery cases as late as the middle of the nineteenth century.12

By the fourteenth and fifteenth centuries, the principles of quia timet were being applied in a variety of cases, yet the actual tide of quia timet was rarely used. Again, an underlying principle existed, but the courts did not give it a definitive name. This point is illustrated in the case of Thomson v. Lee,13 a surety case that involved sixty sheep and two oxen.14 As we will see later, surety cases predominated much of the equitable use of quia timet. The court, in distinguishing this case from other equitable actions, noted that the plaintiff did not have a cause of action for trespass [de homine repkgiando, de libertate probanda] because the defendant did not have actual possession. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Tracing Georgia's English Common Law Equity Jurisprudential Roots: Quia Timet
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.