15 Mo. App. 551 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This is a proceeding by a judgment creditor, in the nature of a supplemental bill to reach and subject to the satisfaction of the judgment a steam tug-boat sold pendente Ule.
The cause was submitted upon the pleadings and an agreed statement of facts.
It is admitted that defendant is a corporation ; but whether a domestic or foreign corporation does not appear, nor where defendants’ place of business is. It does not appear where the tug was when sold to defendant, nor where she has been at any timé since.
The court found the issues for plaintiff, and entered a
What personal property is subject to the doctrine of lis pendens, does not seem to be yet definitely settled by any line of judicial decisions. The matter may be said to be res integra in Missouri. Long ago, in McLaurine v. Monroe (30 Mo. 369), Judge Scott remarked: “We said the Us pendens in Tennessee ‘ might ’ be notice to a purchaser of the slaves of the equity of complainants. The law in relation to the question whether movable personal property is subject to the doctrine of Us pendens does not appear to
It is well settled that there is at least one species of personal property — negotiable paper — to which the doctrine does not apply. But this exemption from the operation of the rule, arises from a peculiar quality which the law, for wise reasons, attaches to commercial paper in the hands of a bona fide holder for value before maturity. To apply the doctrine of lis pendens to such securities, would be to destroy one of the essential characteristics of negotiable paper (Keiffer v. Ehler, 18 Pa. St. 388), which unlike other property, as is remarked by Judge Laurie in the case just cited, carries its whole evidence of title upon its face. County of Warren v. Marcey, 97 U. S. 96 ; Winston v. Westfeldt, 22 Ala. 760. '
In Murray v. Lylburn (2 Johns. Ch. 441), Chancellor Kent doubts whether the doctrine ought to be carried so far as to affect sales of movable property, such as horses, cattle, and grain, and Judge Bradley in County of Warren v. Marcey (supra), says that the doctrinéis applicable to personalty, with the two exceptions of negotiable paper, and articles of ordinary commerce sold in the usual way. In New Hampshire, however, the courts refuse to apply the doctrine to personalty (Chase v. Searles, 54 N. H. 511) ; whilst in Mississippi, on the other hand, it is said that the doctrine at this day applies with equal force to contracts in regard to personalty and those concerning real estate. McCutcheon v. Miller, 31 Miss. 65. In Pennsylvania the doctrine is applied to non-negotiable securities. Deaum v. Lawson Co., 37 Pa. St. 533.
So far as the reasons on which the rule itself is based go, they seem to apply with, equal force to personal prop
Indeed, the hardship of the doctrine as applied to real estate as settled in this country in harmony with Newman v. Chapman, that a lis pendens duly prosecuted, and not collusive, is notice to the purchaser so as to bind his interest by a decree of which he had not, and perhaps could not possibly have had, actual notice, has led to the enactment of statutes such as that in our own state, as to recording notice of actions involving title to realty ; and, where such statutes do not exist, the course of decisions seems to have been to confine, rather than to extend, the doctrine. But as was remarked by Chancellor Kent in the leading Amer
We are aware of no statute of the United States, and there is none of the state of Missouri, requiring or authorizing the registration in the recorder of deeds office, or in the office of the collector of the port, or elsewhere, of notice of any suit concerning a steamboat; nor so far as we know, has any officer any power to record such notice. The legislation of congress as to the transfer of steamboat property (U. S. Rev. Stats., sect. 4192) does not in any way affect the applicability of the doctine of lis pendens to a river tug.
But whilst the doctrine of lis pendens is applied to personal as well as to real property, with the exceptions noted above, it has been felt that the doctrine that purchasers pending the suit are bound by a decree in an action to which they were not parties, and that they were not protected though they had paid full value and had no notice of the suit, was a harsh doctrine, justified only by the necessity of putting an end to litigation and preventing defendant from evading the decree. The doctrine had its origin in equity, but has never been a favorite with courts of equity. It has been closely confined within lines, when applied to purchasers in good faith, and they have been allowed the benefits of technical objections. The property must be exactly identified in the bill; the suit must be continuously and diligently prose
But whilst the rule is laid down that the court must have jurisdiction of the property, and that where this is the case, if a creditor files a bill in his own name and for his sole benefit, to set aside a fraudulent conveyance and .to have the property applied towards the satisfaction of his judgment, he acquires a specific lien by filing his bill and obtaining service; and that any person purchasing the property sought to be subjected to the claim is a purchaser pendente lite; and whilst we have no doubt that within the United States purchasers in one state pending suit in another must be treated as pendente lite purchasers, and subjected to the rule applicable to such purchasers, where the suit has been prosecuted with due diligence to a decree, process has been personally served on defendant, and the subject-matter of the controversy is within the jurisdiction of the court (Fletcher v. Ferrell, 9 Dana, 372), we do not see in the present case that the boat, which is the subject of the controversy, has been within the jurisdiction of the court at any time since her release by the sheriff, long before this action was brought.
From the nature of the property, there can be no presumption that she remained where the sheriff left her. She may not have been in the state of Missouri at the time of the purchase by defendants, or since. Under these circumstances we do not see how the circuit court could enforce a decree divesting title. But even if it could make such a
For these reasons we think that the judgment should be reversed and the cause remanded.