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

Article excerpt

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. …