70 Minn. 243 | Minn. | 1897
This was an action to foreclose a real-estate mortgage, the only defendant appearing being White, a subsequent purchaser of the mortgaged premises.
A foreclosure under the power was set aside, because there was nothing due when the foreclosure proceedings were commenced, the whole interest being forfeited .by the fact that the note drew a greater rate of interest after maturity than before. Chase v. Whitten, 51 Minn. 485, 53 N. W. 767. On July 10, 1893, a final judgment was entered in that action, adjudging not only the foreclosure sale but also the mortgage itself null and void and of no effect. Notice of the entry of the judgment was immediately served on Whitten, and a certified copy of the judgment recorded in the office of the register of deeds.
In December, 1894, the court, on motion of the defendant Whitten (then the owner of the mortgage), made an order (filed January 4, 1895) correcting and amending the judgment so as to be one merely setting aside the foreclosure, and thus making it conform to the intention of the court, as expressed in open court when he announced his decision of the case. Chase v. Whitten, 62 Minn. 498, 65 N. W. 84. White was not a party to that action and no notice was served upon him of the application for the amendment and modification of the judgment.
The answer of White in the present action is in substance that he was a good-faith purchaser for value in the full belief that the mortgage had been canceled by the judgment in Chase v. Whitten, and that, as no appeal had been taken, he supposed Whitten had abandoned all claims to the premises under the mortgage.
In view of the admissions of plaintiff’s counsel in this court we infer that the case was tried in the court below, with his consent, upon the theory that the amendment and correction of the judgment in Chase v. Whitten was not conclusive on the defendant, but that he had the right to attack it in this action by proving any facts which he might have urged against amending or correcting that judgment had he been made a party to that application. The trial court seems to have disposed of the case on that theory and in effect held that, as against the defendant White, Whitten (plaintiff’s assignor) was not entitled to have the judgment corrected because of his unexcused and unexplained delay from July, 1893, to December, 1894, in making any application for such relief.
In the absence of any case or bill of exceptions we must assume that the evidence fully justified the finding of fact that the
“Plaintiff has attempted in no way to excuse or explain the delay of nearly eighteen months in having said judgment in the case of Chase v. Whitten corrected.”
There is no warrant for the assumption that this finding was
There can be no doubt but that one who, after final judgment, purchases from one of the parties to the action at any time within three years after the judgment has been recorded in the office of the register of deeds, takes the chances of his title being affected by the subsequent setting aside or modification of the judgment, under section 5267. Lord v. Hawkins, 39 Minn. 73, 38 N. W. 689; Welch v. Marks, 39 Minn. 481, 40 N. W. 611; Drew v. City, 44 Minn. 501, 47 N. W. 158. The question remains, however, whether his title can be thus affected without notice to the purchaser of the application to vacate or modify the judgment.
It is now generally held that an appeal continues the lis pendens until final judgment on the appeal; and as an application for relief under section 5267, at any time before the time for appealing expires, is to a certain extent a substitute for an appeal, the action may perhaps be deemed pending until the time for appealing expires, so as to make a purchaser within the time a purchaser pendente lite, merely occupying the shoes of the party to the action from whom he bought. It is not necessary to decide that question at this time, as in this case the time for appealing had expired before application was made to amend the judgment. The rule at common law as well as in chancery was that the lis pendens terminated with final judgment or decree. A writ of error or a bill of review, which were new actions, constituted a new lis pendens which, however,
Under our Code, after final judgment an action is still sub judice and under the control of the court for the purposes of section 5267; but, at least after the time for appealing has expired, the action cannot be said to be still pending, in either the popular or historic sense of the term. Where, as in this case, the time for appealing from the judgment had expired, the application for relief under section 5267 serves somewhat the same office as a bill of review in chancery. And it was well settled that, if a person not a party to the original suit became interested in the subject-matter, he was a necessary party to a bill of review by way of supplement. Daniell, Ch. Prac. 158; Mitford, Eq. Pl. 90; Story, Eq. Pl. § 420. Unless thus made a party, he would not be affected by a subsequent change or modification of the decree.
We are of opinion that, on the same principle, the rights of a purchaser of the subject of the action after final judgment cannot be affected by a subsequent setting aside or modification of the judgment (at least after the time for appealing has expired), unless he is made a party to, or given notice of, the application. As to him, such modification or vacation of the judgment is wholly inoperative and void.
This has been always assumed or implied in all the decisions of this court. See Berthold v. Fox, 21 Minn. 51; Welch v. Marks, supra; Chase v. Whitten, 62 Minn. 498. In Lord v. Hawkins, supra, notice was served on the purchasers, who were the appellants in that case. In Drew v. City, supra, the plaintiff was protected as an innocent purchaser for value, under the three-year clause; and hence it was unnecessary to consider the question of notice.
There is a surprising paucity of decisions on the question in other code states which have statutes similar to ours; but, so far as we have been able to ascertain, such decisions as there are, are in line with the views we have expressed. This is in accord with the elementary principles that a person is not bound by a judgment to which he is neither a party nor privy, and that he cannot be deprived of his property without notice and his day in court. See Robinson v. American, 9 Civ. Proc. 78.
Judgment affirmed.