108 P. 491 | Ariz. | 1910
The only question presented by this appeal is whether appellant was bound by the decree in the partition suit. Counsel for appellant advance the theory that the court, by sustaining the generál demurrer to the complaint in the partition suit, held that no cause of action was stated by the complaint, and that in consequence no constructive notice was imparted to him until after the amendment, at the date of which his rights under the mortgage had become fixed and determined. In most of the numerous cases holding that, where a cause of action is for the first time stated by the amendment, the doctrine of lis pendens only becomes applicable from the date of the amendment, it will be found that either new parties were brought in or new and independent causes of action were set up by the amendment, and the theory is adopted that the doctrine of lis pendens is based upon the
The supreme court of the United States in Tilton v. Cofield, 93 U. S. 163, 23 L. Ed. 858, held directly contrary to the view herein taken by counsel for appellant. In that case the appellants attached real property and recovered judgment which was reversed by the supreme court of the territory of Colorado. Thereafter, by leave of court, the appellants amended their declaration and affidavit in attachment, and again recovered judgment in pursuance of which the property was sold to appellees. During the pendency of the action and prior to the amendments, the appellees purchased the property and brought an action to set aside the sale, and from a decree in their favor the appellants appealed to the United States supreme court. The court says: “There is another objection to the case of the appellees which must not be over
In Cotton v. Lacey (C. C.), 61 Fed. 481, the court says: “The equities of the plaintiff are such as to appeal strongly to the conscience of a chancellor, and I am clearly of the opinion that he is entitled to the relief prayed for as against Evans and those claiming to be innocent purchasers of the lands in controversy. But much stress is laid on the fact that after the sale of the lands under Evans’ judgment, a demurrer was sustained to the bill filed by the plaintiff herein, with leave to amend, and .that for that reason the claim of Evans is paramount and superior. If the bill in this case was sufficiently amended, after demurrer and leave to amend was given, to afford the plaintiff the relief he asks for, the amendment relates back to the institution of the suit, and neither Evans nor those holding under him can take anything by this objection or this contention. ” In Norris v. Ile, 152 Ill.
While the subject under consideration is regulated by statute in this territory, the condition of the law in this regard at the time of its enactment must be considered as tending to throw light upon the legislative intent. Our statute provides (paragraph 1318, chapter 6, title 17) : “In an action affecting the title to real property the plaintiff at the time of filing the complaint, or at any time thereafter, and the defendant at the time of filing his answer when affirmative relief is claimed in such answer, or at any time thereafter, may file in the office of the recorder of the county in which the property is situated, a notice of the pendency of the action or defense, or the matter constituting defendant’s claim for affirmative relief, the relief ■ demanded by the defendant, and a description of the property affected thereby. . . . From the time of filing such notice a purchaser or encumbrancer of the
In Bennett on Lis Pendens, section 318, chapter 15, the writer says: “That under the lis pendens acts the res litigiosa is brought into efficiency and force by the filing or recording of the notice, so that, as a rule, under these statutes, it commences with the filing or recording of the notice and its scope is governed by the terms of the notice itself.” In construing the California statute, which is identical with ours, the supreme court of that state says: “The new Code of Practice provides that plaintiff or defendant may file a notice of the pendency of the action with the recorder of the county in which the property is situate, and then provides that from the time of filing only shall pendency of the action be constructive notice to the purchaser or encumbrancer of the property affected thereby. In no other respect are the rules of law relating to this subject changed by the statute. A purchaser or encumbrancer of property, instead of being required to examine all the suits pending in the several courts to ascertain whether any of them relate to or affect the real estate he is negotiating about, has now only to examine the notice of Us pendens filed in the recorder’s office of the county where the real estate is situate, and he is only bound by constructive notice of what may there appear.” Sampson v. Ohleyer, 22 Cal. 210. In Richardson v. White, 18 Cal. 106, the court says: “The qualification of the doctrine made by the statute is such that a purchaser is not affected unless notice of such lis pendens be filed with the recorder. The common-law doctrine of lis pendens rests upon the fiction of notice to all persons of the pendency of suits, and to remedy the evils which might grow out of the transfer of apparent legal titles or rights of action to persons ignorant of litigation respecting them this provision was inserted in our statute. If no lis pendens be filed, the party acquiring an interest or claim pendente Ute stands wholly unaffected by the suit. The object of the statute evidently was to add to the common-law rule a single term, to wit, to require for constructive notice, not only- a suit, but filing a notice of it, so that this rule is
• The statute is obviously intended to make the recording of the Us pendens constructive notice of all that is claimed in the action regardless of whether such claims are sufficiently plead, in so far as their nature and extent are disclosed by the pleadings, and is in entire accord with and in furtherance of the doctrine declared in Tilton v. Cofield, supra; its only effect being to mitigate the harshness of the rule in its application to purchasers and encumbrancers pendente lite by affording increased facilities to them for acquiring the information necessary to their protection.
For the foregoing reasons, the judgment is affirmed.
CAMPBELL and LEWIS, JJ., concur. DOAN, J., not sitting.