15 Johns. 309 | N.Y. Sup. Ct. | 1818
delivered the opinion of court. The rule that a lis pendens in the court of chancery, (1 Johns. Chan. Rep. 576.) which must begin from the service of the subpoena after the bill is filed, is considered notice to a subsequent purchaser, so as to affect and bind his interest, cannot now be controverted; but according to the facts disclosed by the testimony in this case, it does not appear that the suit in chancery had been instituted when the sale took place.
That the lessor of the plaintiff was the purchaser, cannot now be questioned. There was sufficient testimony to authorize the jury to infer it. Ferris, the sheriff, on being called a second time, stated, that, on reflection, he thought that Hart and Noah came to him on the day of sale, and requested that the deed should be given to Noah. If, then, Noah was a bona fide purchaser at the sheriff’s sale, before the existence of the suit in chancery, or there was a lis pendens, it follows, that to make the decree conclusive on him, he ought to have been made a party. Not being a party, so far as relates to his title, the rights of the mortgagee, under the mortgage sale, notwithstanding the decree, remained open for discussion,(and the purchaser at the sheriff’s sale
New trial granted.