This was an action of ejectment. Both parties claim title under John Cowgill, who, on March 25th, 1865, died seized .of the land sued for, leaving a will by which he devised the same to Rachel and Henry Cowgill, which will was duly admitted to'probate in the probate court of Livingston county on the 30th day of March, 1868. On the 29th day of- October, 1868, Jeremiah Tingley and others instituted proceedings, under the statute, in the Livingston county circuit court against Rachel Cow-gill and Henry Cowgill, and others, to set aside said will, and the process issued therein against Rachel and Henry Cowgill was duly served on them on the 80th day of October, 1868. This suit was removed by change of venue to Buchanan county, in the circuit court of which county, on the 25th day of May, 1875, it was adjudged by agreement that the paper writing admitted to probate in Livingston county on the 30th day of March, 1868, as the last
It is contended by the plaintiffs that the doctrine of lis pendens is purely a doctrine of equity, recognized and en-forced in equity alone, and cannot, therefore, be invoked by the defendants in this case. It is true, as claimed by the plaintiffs, that a suit, under the statute, to contest the validity of a will, is to be regarded as an action at law. This has been repeatedly decided by this court. Lyne v. Marcus,
It.is further contended that the rule of lis pendens is not applicable to this case for the reason that the title to the land now in controversy was not the subject matter of the suit of Tingley against Cowgill; that the will was the res involved in that suit. In one sense it was, but it is quite clear that a will devising real property operates as a conveyance of such property, and it follows, therefore, that a suit contesting the validity of such will, directly assails the validity of such conveyance, and necessarily involves the title. No one would care to contest the validity .of a will, but for the fact that it is a muniment of title; and pending a contest involving the validity of a devise, the law will not permit either the heir or the devisee to alien the property'devised, so as to avoid the effect of the judgment which may be rendered in such suit. “ Suppose,’ ’ said Lord Hardwick, in the case of Garth v. Ward, 2 Atk. 174, “An heir at law to get into possession of the ancestor’s estate immediately upon his death, and that during a suit in this court for establishing the will of the ancestor in favor of the devisee, the heir conveys this estate to a stranger, and afterward the will is established in this court, can it be contended that the grantee of the heir is not bound, and that this suit will be looked upon as no lis pendens as to such grantee?” It may be remarked, in this connection, that Henry and Rachel Cowgill acquired no right to execute the deed in question, from the fact that the will of John Cowgill had been proved in common form in the probate court of Livingston county; for when the suit was instituted in the circuit court to contest the validity of said will, the action of the probate court was in effect annulled,
As the conveyance -pendente lite was subject to any judgment which might be lawfully rendered in tbe ease of Tingley against Cowgill, by consent or other. s J . . „ , / wise, the only question remaining tor determination is, whether the judgment, which was rendered, is a nullity ; for even if the parties to the judgment could complain of it, and it could on appeal or writ of error be held to be erroneous, yet as it stands unreversed and unappealed from, it is, if not a nullity, conclusive of the rights of the parties thereto, and their privies, and the.execution sale made in pursuance thereof must be held to be valid and binding in the present proceeding. McNair v. Biddle,
It follows from the foregoing views that the title acquired by the defendants under the execution sale, is superior to that acquired by the plaintiffs under the trust deed, and the judgment must, therefore, be reversed and the cause remanded.