Doe ex dem. Chaudron v. Magee, 8 Ala. 570

Doe ex dem. Chaudron v. Magee

8 Ala. 570

| Ala. | 1845

COLLIER, C. J.

The question how far the pendency of a *572suit was notice to a purchaser from the defendant, was most elaborately considered in Murray v. Ballou, 1 Johns. Ch. Rep. 566. Chancellor Kent there said, “ The established rule is, that a lis pendens, duly prosecuted and not collusive, is notice to a purchaser, so as to affect and 'bind his interest by the decree; and the lis pendens begins from the service of the subpoena after the bill is filed.” To the same effect are Murray v. Finster, 2 Johns. Ch. Rep. 155; Heatley v. Finster, 2 Johns. Ch. Rep. 158; Murray v. Lylburn, 2 Johns. Ch. Rep. 441; Green, et al. v. Slayter, et al., 4 Johns. Ch. Rep. 38. In Culpepper v. Austin, 2 Ch. Cas. 115, the testator had conveyed lands to his exe-cators in fee to pay his debts, and after his death the defendant purchased the lands of the executors for a valuable consideration, pending a bill brought by the heir to have the lands, on the ground that they were not wanted to pay debts. It was held by the Lord Chancellor that the pendency of the suit between the heir and the trustee (although there was no notice in fact,) was sufficient notice in law, and the defendant purchased at his peril; so that if it appeared the sale was unnecessary and improper, the heir would recover against the purchaser. The result was that the defendant lost his purchase, though he had purchased and paid the money the same day the bill was exhibited. [See Self v. Maddox, 1 Vern. Rep. 459; Finch v. Newnham, 2 Id. 216; Newland on Con. 506; Garth v. Ward, 2 Atk. Rep. 174; Worsley v. Scarborough, 3 Id. 392; Harris, et al. v. Carter’s adm’r et al. 3 Stew. Rep. 233.] Sir William Grant,' Master of the Rolls, said, “ He who purchases during the pendency of the suit, is bound by the decree that may be made against the person from whom he derives the title. The litigating parties are exempted from the necessity of taking any notice of a title so acquired. As to them it is as if no such title existed. Otherwise, suits would be interminable, or which would be the same in effect, it would be in the pleasure of one party at what period the suit should be determined. The rule-may sometimes operate with hardship, but general convenience requires it.” [The Bishop of Winchester v. Paine, 11 Ves. Rep. 194. See cases collected in Kinne’s Law Comp. 131, 132, and 2 Pirtle’s Dig. 73-75.]

These citations very satisfactorily show, that the rule we have stated is well established. If it does not operate until process is served upon a resident defendant, we would say after publication *573as to a non-resident, there was sucha lis pendens as would affect a purchaser with notice. Publication is a means provided by statute, for bringing in a non-resident defendant to a suit in Chancery, and as it respects the action of the Court, is equivalent to a subpoena. If necessary then, to show that parties were made, in order to overreach and defeat the title of the purchaser acquired pendente lite, we can conceive of no objection to the admission of the newspaper in which the order of publication was printed. Perhaps it might be insufficient evidence to make out the fact, in itself; but when aided by the production of the order, and parol evidence that the paper was regularly printed and issued as it purports, the proof would be ample. If the order did not appear of record, it might perhaps be necessary to have it entered nunc pro tunc, unless it was recited in a decretal order subsequently made, by which the bill was taken for confessed. But there is nothing in the bill of exceptions to show that the record in Chancery was defective, unless it be the charge to the jury ; and this is a mere hypothetical statement of the law, as understood by the Circuit Judge.

In Cullum, et al. v. Batre’s ex’r, 2 Ala. Rep. 420, we decided, that to á bill for the foreclosure of a morgage, it was not necessary to make either a prior or subsequent incumbrancer a party; that the rights of the former are paramount, and the latter, where he is not made a party, will not be concluded. [See Judson v. Emanuel, et al.. 1 Ala. Rep. 598; Walker, et al. v. The Bank of Mobile, 6 Ala. Rep. 452.] It is perfectly clear, that Hitchcock purchased previous to the institution of the suit by Duval’s heirs v. Getz and Kennedy, and under no circumstances was it necessary to have made him a defendant in that case, in order to affect him with the lis pendens. He was a purchaser pendente lite, and in legal presumption, had notice.

This view is decisive of the cause, and the consequence is, that the judgment is reversed, and’the cause remanded.