144 Ark. 304 | Ark. | 1920
(after stating the facts). It is conceded that the contract between Lightle and Schmidt was one that the former might enforce in a suit for specific performance if Booth was bound by the Us pendens notice filed when the suit was instituted. In Marshall v. Whatley (Ga.), 36 L. R. A. (N. S.) 552, it was held that a suit for the specific performance of a contract for the sale of real estate is within the rule as to Us pendens, and that one who acquires an interest in the property pending the suit from a party thereto, is bound by the result of the suit. Several decisions from courts of last resort of other States are cited in support of the rule. The doctrine of Us pendens is founded on public policy, and has been long adhered to as essential to the due administration of justice in order that an end may be put to litigation. Bailey v. Ford, 132 Ark. 208.
Counsel for Booth seek to uphold the decree, upon the principles announced in Moulton v. Kolodzik (Minn.), 7 Ann. Cases, p. 1090, and Parks v. Smoot, 105 Ky. 63, in which, it is held that a person who enters into an executory contract for the purchase of land prior to the institution of a suit involving the title thereto acquires -an interest in the land and may after such suit is brought pay the purchase money and receive a deed to the land unaffected by the rule of lis pendens. Those cases, however, have no application to the facts in the present case. In each of these cases the executory contract of sale was binding and enforceable in equity. It is true that in the latter case the contract of sale was a parol one, but the purchaser had entered into the possession of the land and was entitled to a specific performance of his contract. Here the suit by Lightle for specific performance was instituted before the deed to Booth was delivered and before Booth had paid any part of the purchase money.Neither had Booth entered into the possession of the land. Hence he was not entitled to a specific performance of his contract. Before the rights of parties completing a parol contract for the sale of lands pending litigation will be protected, it must appear that the interest under the executory agreement is capable of being enforced. Rooney v. Michael (Ala.), 4 So. Rep. 421. In order that the interest acquired by Booth may be effectual against the rule of Us pendens, his contract must be enforceable. Gibler v. Trimble, 14 Ohio 323, and Clarkson v. Morgan, 6 B. Monroe (Ky.) 441.
As we have already seen the contract with Booth was not obligatory on the parties and could not have been enforced. Therefore he was affected by the Us pendens notice in the suit for specific performance by Lightle against Schmidt.
It follows that the chancery court erred in dismissing the complaint of the plaintiff for want of equity. For that error the decree must be reversed and the cause remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.
