30 Ind. App. 520 | Ind. Ct. App. | 1903
This case was transferred by the Supreme Court to this Court. The appellees commenced this action in the Clinton Circuit Court on the 28th day of August, 1896. The persons joined as defendants at that time were John A. Smith, John Enright, Ann Enright, and Levi TI. Enright. There were three paragraphs of the complaint; the third paragraph of which was withdrawn before the ■finding, and refiled after the case had been reversed by the Supreme Court.
At the time of the filing of this conrplaint the appellee the First Rational Bank of Frankfort filed in the office of the clerk of the Clinton Circuit Court a written notice that said action was brought to set aside conveyances of the lands, in the complaint described, in which notice there was set forth the title of the cause, the names of all the parties to such suit, and a particular description of the lands mentioned in the complaint, the nature of the cause of action, that it was broirght to effect the title of said real estate, and that the cause of action was pending in the circuit court of Clinton county, Indianaj and on the same day of the filing of the said notice it was duly recorded by the said clerk in the Us pendens record, kept by the clerk in his office; the clerk noting at the time upon the record thereof the day and hour when said Us pendens notice was filed and recorded. The cause was put at issue and tried by the court, and on the 15th day of January, 1891, judgment was rendered against the defendant John A. Smith and the appellee John Enright upon the notes sued on in the first and second paragraphs' of the complaint, and a finding in favor of the defendants upon that part of the cause of action which sought to set aside the conveyances as fraudulent.
The appellee the First Rational Bank of Frankfort filed its motion for a new trial, which motion was overruled.
In reversing the judgment of the trial court the Supreme Court directed that a new trial be granted. The cause coming on for trial again in the circuit court, the appellee the First National Bank of Frankfort refiled its third paragraph of complaint, and obtained leave of court to file, and did file, a supplemental complaint. In this supplemental complaint it is averred that at the time of filing the original complaint said appellee had filed a lis pendens notice, which notice is particularly described; that a judgment was rendered on the notes in favor of said appellee, and against John Enright and James A. Smith, and against said appellee as to the setting aside of the alleged fraudulent conveyances; that an appeal had been taken to the Supreme Court of Indiana, and that while the said cause was pending in said Supreme Court the said Levi H. Enright and the appellant the Farmers Bank of Frankfort, both having knowledge of the lis pendeñs notice aforesaid, and of the fact that an appeal was pending in the Supreme Court, and that the said John Enright was largely indebted to this appellee, and that the said John Enright had on the 25th day of March, 1896, without any consideration, and for the purpose of and with the intent to cheat, hinder, and delay his creditors, including this appellee, conveyed the real estate therein described, together with other lands, to his wife Ann Enright, and that Ann Enright, without any
John Enright and Ann Enright answered the third paragraph of the complaint and supplemental complaint by a general denial. , Levi II. Enright filed a separate answer in general denial. The appellant the Farmers Bank of Frankfort demurred to the complaint and supplemental com
Erom this judgment John Enright, John A. Smith, Ann Enright, and Levi IT. Enright have not appealed. The appeal is prosecuted by the Banners Bank of Erankfort and George D. and Christiana Kuhns, who became interested in-said land during the pendency of the appeal to the Supreme Court from the first judgment rendered in this cause, and who were first made parties to this action by the supplemental complaint filed after the first judgment had been reversed.
The only error assigned and discussed which affects the appellee the Eirst National Bank is that the trial court erred in overruling the motion for a new trial. The causes assigned in the motion for a new trial, and discussed by counsel for appellants, are that the decision of the court is contrary to law, and that such decision is not sustained by sufficient evidence. John Enright, as late as the 24th day of March, 1896, owned 400 acres of land in Clinton county, Indiana, at least up to that time the records of Clinton county did not show any transfers by him of any part of said land. He had owned and been in possession of it
On the former appeal of this cause to the Supreme Court (First Nat. Bank v. Smith, 149 Ind. 443), that court, at page 446, said: “The evidence shows that the land was held in John Enright’s name for nearly twenty-two years before he conveyed it to his wife, and that there was no consideration then paid to him for the deed to her. She even testified that she was not present when the deed to her was exeeirted, and that she did .not know anything about her husband having executed a deed to her until he handed it to her. In the light of this testimony, the deed to Ann Enright would look very much like a voluntary conveyance. If the deed to Ann Enright was fraudulent as to her, then the deed by her and her husband to their son Levi was confessedly fraudulent also, and that as to all parties, for it is admitted that there was no consideration whatever for the deed to him.”
We think the same can be said with equal force as applicable to the evidence before us, adduced upon the second trial. And this brings us to the second part of the controversy. If the deed from Ann Enright and husband to Levi was confessedly fraudulent,- then the deeds from Levi and wife to appellant the Farmers Bank of Frankfort,
By the lis pendens all persons were notified to beware of the title to the property in'litigation. The doctrine of lis pendens is based on public policy and the necessity of giving effect to the proceedings of the court. Without it, the administration of justice might always be defeated by successive alienations of the property in litigation. Arrington v. Arrington, 114 N. C. 151; Watson v. Wilson, 32 Ky. 406, 26 Am. Dec. 459; Turner v. Babb, 60 Mo. 342; Lamont v. Cheshire, 65 N. Y. 30.
The purchaser of property in litigation must take it subject to the. final judgment of the court in the cause in which the question of title is being litigated. Appellees’ lis pendens was filed upon the day the action was commenced. It complied with our statute in every particular. It was notice to all the world from the date of its filing until the final determination of the action that the title to the property therein described was in dispute, and that any purchaser must abide the judgment of the court. And one purchasing real estate after judgment rendered in the trial
Judgment affirmed.