Hardin v. Hardin

| S.D. | Feb 14, 1914

WPIITIN'G, J.

Respondents contend that there are several reasons why the judgment appealed from, can and should be affirmed ; but we are of the opinion that, under the stipulation which appears to have been entered into between the parties, and which binds' respondents so far as the trial from which this appeal is taken is concerned, there is but one question before, us, and that whether, under the following statement of -facts, the lis pendens referred to would constitute constructive notice to- D. of -the interest of B. in that portion of the land not situate -in L. county.

A. and B. are owners in common of a large -but single tract of land situate mainly in L-. county but partly in M. county. The title to this land stands in the name of A. only. B. brings an action against A. in the circuit court of L. county, in which action he seeks a decree o-f sai-d court establishing a resulting trust in A. in his (B.’s) favor, in and to B.'s undivided interest in and to said lands. A notice of lis pendens in said action is duly and timely filed in the office of the register of deeds of L. county, which notice contains the names of the parties to said action, the object of the action, and a description of all the real property affected thereby. No notice of lis pendens is ever filed in M. County. Personal service of summons is had within the proper time to: preserve the validity of s-aid notice of lis pendens. Thereafter judgment of said circuit court enters in favor of B., decreeing him to be the owner of a certain undivided interest in and to said land, which judgment is duly recorded in the office of the clerk -of courts of. L. county. A. appeals, from, the judgment above referred to, to the Supreme Court, and, upon such appeal, -executes and files a supersedeas bond staying said' judgment. This judgment is afterwards affirmed. After the rendition of the judgment by the circuit court, and pending the appeal therein, one D. takes from- A. a note covering- A.’s indebtedness to -him, and at the same time, A. and wife execute and deliver to D. a mortgage purporting to ■cover the said tract of land hereinbefore first -mentioned, except that said land is described -therein as .being in L. county.

The stipulation above referred to, when changed in its wording so as to conform to the names we have used herein, would read as follows: The question to be submitted under the plead-

ings is whether the lis pendens, filed in the office of .the register of deeds of L. county, by B., against the whole tract of land, constituted notice to- D., the mortgagee, so far as -the interest -of B. in the portion of the tract o.f land lying in M. county.

The trial court concluded that such lis -pendens did -constitute notice to D. -of B.’s interest in and to that part of the tract situate in M. county. We think in so holding, said court erred, and, if so, the error -was certainly prejudicial.

Section 108, -C. CV P., provides: “In an action affecting the title to real property the plaintiff at the time of the filing- of the complaint or at any time afterwards, * * * if the same be intended to affect real property, may file for record with the register of deeds of each county in which the real property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description, of the real property in that county affected thereby; from the time of filing only shall the pendency of the action' be constructive notice to. a purchaser or incumbrancer of the property affected -thereby; * * * and every person whose conveyance or incumbrance is- subsequently executed or subsequently recorded, * * * -shall be bound by all proceedings taken -after the filing of such notice, to the same extent as i-f he were a party to the action. For -the purpose o-f this section, an action shall be deemed to -be.pending from the time of filing -such notice.”

As held by this court in Gilman v. Carpenter, 22 S. D. 123, 115 N.W. 659" court="S.D." date_filed="1908-03-07" href="https://app.midpage.ai/document/gilman-v-carpenter-6686986?utm_source=webapp" opinion_id="6686986">115 N. W. 659, statutes s-uc-h as -this have been enacted in most of the states in order to mitigate and limit the harsh rule of the common law. 2 Pomeroy's Eiq. Jur. § 639. Su-ch statutes supersede the common law rule as to lis pendens. 25 Cyc. 1465. The contents of the statutory notice are prescribed by the statute, and anything -contained in su-c-h notice other -than as so- prescribed, is surplusage, and of no effect. This statute provides that “a” notice, not “the” notice, may be filed -in “each county in which the real property is situate,” and that a notice so filed in any county should contain a description of the real property in that county affected thereby-” It will be seen that- there is -no- authority for placing in a notice to be filed in -one -county a description- of 1-and situate in another county. Respondents concede that, if D.'-s mortgage had covered land -situate only in M. county, the lis -pendens filed in R. county would not -have constituted constructive notice; but they contend that, inasmuch -as D's mortgage covered land- in L. county, the lis pendens -constituted notice to him of the pendency of the action, and .-having notice of the pendency of the action, he had notice of the scope of such action, and of the' fact that it involved the 1-and in- M. county. If respondents are right, and a notice of lis pendens is constructive notice of the contents of the -pleadings, even -though the allegations of the pleadings may relate to -lands -other -than that properly described in the notice of lis pendens, it would follow that, if. an action was brought involving the title to ten tracts of land in one county, and a notice of lis pendens was filed in which hut one tract was described, one who, during the pendency of such action, bought such one tract together with one or more of the other tracts would be bound by constructive notice that all said tracts were involved in the litigation. It is easy to see -where this might lead .to! The part described' in the notice might be of trifling value; a prospective purchaser might search the records pertaining to< all the other tracts and find the titles thereto' apparently clear; he might think the one tract of so little value as not to be worth the time and trouble necessary for an examination of the records relating thereto, and conclude to run the risk of the title to- that piece being defective; under respondent’s theory, while he might have purchased all the other tracts without any constructive notice of the pendency of the action, provided- he did not include in such purchase the one tract described in such notice, yet, having included this one tract, and through it having received constructive notice of the suit relating .thereto, he would have constructive notice that such suit related to all the other tracts, and take them subject to the outcome of such suit. Thus in the case before us, under respondent’s theory, if the notice had been filed in M. county, and D., searching -the records of E. county, had found no- notice therein recorded, while -he could have then bought the land in L. county, and not be charged with any notice of the pendency of the action, providing he did not include in -such purchase the tract in M. county, yet, if he included all the land in the one purchase, no matter how small and insignificant the tract in M. county -may have been, he would take all the land subject to the rights oí B. therein. The correct rule is that the statutory notice is notice only that an action is pending involving such land, and only such land as is properly described therein; and further, as in the case of a deed or mortgage (2 Pom. Eq. Jur. p. 1120, n. 2), -if there were statutory authority for including the 'description of lands in several counties in one notice, it would be necessary to- file such notice in each county where any part of the land was situate, in order for the same to constitute constructive notice as to> the land in every county. Therefore the purported- notice filed was ineffective as a notice of the pendency of any action pertaining to the land in M. county.

Respondents, however, contend that, inasmuch as D. supposed all the land to- be situate in R. county — as evidenced 'by the fact that his mortgage described it as 'being all in L. county — he should not now be heard to say that the notice which described it all in I,, county did not confer constructive notice that the suit pertained to all the land. There are two answers to this contention: (i) There is no finding that D. believed the land to be all in one county, and nothing to show that such a finding would have been warranted by the evidence. The error in the mortgage may have 'been purely clerical. It does appear that D. filed his mortgage ' in both counties,' thus indicating that he knew the tract was situate in both counties. (2.) Suppose D. had thought all of, the land was in I-I. county, where in fact none was situate, and the notice of lis pendens had been filed in H. county, but not-filed in either R. or M. county; would D. be charged with constructive notice? -Certainly not. Suppose D. had thought the land all situate in II. county, where- in fact none was situate, and the notice of lis pendens had been filed in R. and MR counties; would such notice be ineffective as against D., while admittedly good against any purchaser or incumbrancer who knew where the land was situate? The answer is too clear for argument. The judgment appealed from is reversed.

PORREY, J., -taking no part in this decision.