75 Ala. 531 | Ala. | 1883
Banks obtained judgment against Charleton Thompson, and an execution thereon was placed in the hands o'f the sheriff of the county in which the lands lie, on the 16th day of .June, 1882. Under this execution the lands in controversy were levied on and sold, and Banks became the purchaser, receiving the sheriff’s deed. The lands thus sold and conveyed are the south-east quarter of section 35, township 14, range 26, in Russell county, less a strip 35 yards wide, extending across the southern part of the tract. The title of the lands was in ■ Charleton Thompson when the sheriff veceived the execution, and when he sold. With this tract he had acquired, and still owned the north-east quarter of the same section. The last named quarter he had claimed, and it had been set apart to him as his homestead exemption.
On the same day on which the execution went into the hands of the sheriff — June 16th, 1882 — Jane Thompson, wife of Charleton Thompson, filed the present bill against her husband, in which she alleged that a part of her money, her statutory separate estate, had been invested by her husband in the purchase of said lands; and she sought to fasten a lien on the lands, to repay to her the money so alleged to be invested. Charleton Thompson was alone made defendant to the original bill, and summons to answer was served on him July 1st, 1882. The present record contains neither- averment nor proof that Banks had notice of Mrs. Thompson’s asserted lieu, until long after his execution lien had attached. Hence, unless her suit gave him constructive notice, his equity is paramount to hers. Preston v. McMillan, 58 Ala. 84, 94.
It has been long settled in this State, and we have no desire to depart from it, that to constitute lis pendens notice of claim, or asserted ownership, not only must the suit be instituted, but process must be issued and served.—Doe ex dem v. Magee, 8 Ala. 570 ; Hoole v. Attorney General, 22 Ala. 190 ; Center v. P. & M. Bank, Ib. 743 ; Goodwin v. McGehee, 15 Ala. 232.
The decree of the chancellor is reversed, and a decree here rendered, dismissing complainant’s bill, so far as it prays relief against W. H. Banks, and against the south-east quarter of section 35, township 14, range 26, east. In all other respects it is undisturbed. Let the costs of appeal be paid by appellee.
Unversed and rendered.
