79 Neb. 595 | Neb. | 1907
August 2,1904, plaintiff filed his petition in the form of a creditor’s hill to subject the real estate in controversy to the payment of a judgment for $1,216,15 obtained by plaintiff May 11, 1904, against the defendant Joel T. Chileoat. Plaintiff alleged that the property was bought with the money of his debtor, but fraudulently placed in the name of the latter’s son, the defendant Roy E. Chileoat, and held by him in trust for his father. Plaintiff filed a notice of Us pendens in the office of the register of deeds as provided by law. August 11, 1904, defendant White purchased the land in controversy of Roy E. Chileoat. February 2, 1905, plaintiff obtained another judgment for $1,087.50 against Joel T. Chileoat upon a note due November 4, 1904. On February 9, 1905, plaintiff filed a supplemental, petition in this cause, alleging that he had obtained the second judgment, and praying that the property in controversy be subjected to its payment. Later plaintiff filed an amended and supplemental petition, alleging, among others, the above facts, and making White a party defendant, but charging no fraud on his part. Upon trial the court found against all of the defendants, and directed a sale of the property for the satisfaction of plaintiff’s judgments. Defendants appeal.
This case involves the right of plaintiff to recover
1. As to the defendants Chilcoat: The undisputed evidence shows that on August 14, 1908, $3,800 belonging to the father and $200 belonging to the son were deposited in a bank at Wisner, Nebraska, in the name of the son. On the same day $3,000 of this amount was paid for the property in question and the title taken in the name of Roy E. Chilcoat, who was then but a few months past twenty-one years of age. Negotiations therefor were made jointly by the father and son. Plaintiff then held two notes against Joel T. Chilcoat, due respectively November 4, 1903, and November 4, 1904, upon which the judgments above mentioned Avere obtained. To overcome the presumptions against them, defendants introduced evidence tending to show that the $3,000 paid for the property was obtained by Roy E. Chilcoat in the following manner: Joel T. Chilcoat owed his brother William $2,200, which Roy assumed. This sum, together with $600 borrowed from his father and $200 of his own money, made up the purchase price of the property. A short time before William agreed to take Roy for this $2,200 indebtedness, he refused to grant an extension of time to Joel for its payment, because he needed the money. Yet in a very short time we find him releasing his brother, who was then able to pay the debt, and accepting therefor the young man Avhose property interests it appears did not exceed $200 in value. A part of the alleged $2,200 indebtedness owing to William was contracted in 1892. No written evidence of the indebtedness between the Chilcoats was introduced in evidence, nor its absence explained. We are satisfied that, the" defendants Chilcoats did not overcome the presumption Avhieh the laAV raises against them, and, so far as their interests are concerned, the judgment of the district court is right and should be affirmed.
2. The fmdant White concedes that he has no defense to the cam e of action alleged in the original petition
in Bennett, Lis Pendens, sec. 82, it is said: “Where the original bill or petition does not involve the property,' but, pending the suit, an amendment or amended petition or bill is filed alleging new matter, and involving property not before in litigation, the Us pendens created by the. amendment will commence from the filing of the amendment or amended pleading, and will not relate back to the commencement of the action so as to affect intervening-rights.” 1 Freeman, Judgments (4th ed..), sec. 199, is as
An amended or supplemental p- ' ition setting forth a new or different cause of action is in the nature of a new suit. The only purpose we can see for permitting it is to save a multiplicity of suits. All defenses accruing to the date of the amendment may be pleaded against it. It follows that one who purchases pending the suit under the
The defendant White does not attempt to defeat the claim first alleged. He is as to that a Us pendens purchaser. But his estate is subject only to the judgment and lien set forth and claimed at the time of his purchase. By the proceedings as they existed at the time he purchased, he was in substance notified that plaintiff claimed a lien upon the property in the amount of the first judgment, for the satisfaction of which the court would retain jurisdiction over the property. Subservient to that, and that only, he purchased. In Lincoln Rapid Transit Co. v. Rundle, 34 Neb. 559, it is held: “Under section 85 of the code, as it existed prior to 1887, where an action had been brought which affected the title or possession of real estate, and summons had been served or publication made, third parties were charged with notice of tin pendency of the action, and while the action was pending could acquire
Plaintiff in his original petition alleged the existence of the note upon which he aftenvards obtained the judgment set forth in his supplemental petition. This he contends
Plaintiff cites Tilton v. Cofield, 93 U. S. 163, as decisive ■of this case. In that case plaintiff set up a cause of action on a book account, and attached the property. He obtained judgment, which was afterwards reversed. Pending suit the property was sold. Later plaintiff amended his affidavit and declaration, alleging upon a note, and prevailed, even against the purchaser. The note described in the amended declaration and the book account first alleged represented the same debt. It is not decisive of the case at bar. One of the controlling features in the case cited was the fact that the amendment did not change the cause of action or allege a different ground for relief.
We recommend that the judgment be reversed and the cause remanded, with instructions to modify the decree to conform to the conclusions herein announced.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed and the cause remanded, with instructions to enter a decree in conformity to the conclusions therein announced.
Reversed.