1. Notice: subsequent purchaser. I. The only point made in this case by the appellants’ counsel, is, that since it appears that Peters purchased the land from Helmer, and paid seven hundred dollars on his contract of purchase, before the commencement of the suit in equity by Landis against Helmer and Noble, to cancel the sale and redeem, that the subsequent commencement of the suit, to which Peters was not a party, did not create a Its pendens as to *121Peters, so as to affect his title acquired upon the completion of the contract, by the payment of the balance of the purchase-money pending the litigation. There is a conflict of authorities upon this question, and there has been no decision upon it by this court. The counsel for appellant has, with much evident industry and ability, collected, classified and discussed the authorities sustaining his view, the affirmative of the question. We do not stop to review the authorities, nor to now determine the question, since it does not appear necessary to the correct decision of this case. A lis pendens only operates as constructive notice to all persons of the title or claim of the parties to the subject of litigation. If actual notice to a purchaser is otherwise given, it is immaterial whether or not there is a Us pendens as to him. In this case, contract of purchase between Peters and Helmer is embodied in the transcript by a bill of exceptions, and from it we copy: “Provided, however, that if any suit shall be commenced for the redemption of said lands from sale under a decree of foreclosure of mortgage made Nov. 26th, 1858, and said Peters shall defend said suit, and shall be defeated therein, then said consideration money, notes, buggy and horse shall be returned to said Peters, and said Peters shall not be required to deliver said notes, mortgages, &c., until said suit shall be determined, nor, &c.” From this it appears that Peters purchased the real estate with notice of Landis’ right to redeem, and upon the express condition that in case that right was asserted, he could suspend performance of his contract, or if performed, his right to have the consideration refunded was expressly stipulated for. Peters, therefore, comes within the rule laid down by Lord Hardwicke, in Le Neve v. Le Neve, 1 Vesey, 64, that “the person who* purchases an estate (although for valuable consideration), after notice of a prior equitable right, makes himself a mala fide purchaser, and will not be enabled, by getting *122in the legal estate, to defeat such prior equitable interest, &c.”
2. Parties: lis pendens. II. In the finding of facts by the court, it appears that : the attorney of Landis had notice, before the bringing of the suit m equity against Helmer and Noble to cancel the sheriff’s deed and redeem, that Peters claimed some interest in the land. Such being the case, it was clearly the better practice, if not his bounden duty, in the absence of notice to Peters of Landis’ equity, to make Peters a party to the suit. It often happens that the rights of litigants are greatly prejudiced by reason of the failure to make necessary or proper parties, a point which too often escapes the attention of the profession. But it may well be questioned whether, in the absence of notice to the party or his attorney, it is necessary, in order to create a lis pendens, to make any other persons parties than those whose interest in the subject is shown in some manner by the records, or by possession of the subject matter of the controversy; and it does not appear in this case that Peters had any title of record, and it does affirmatively appear that he was not in possession of the property when the suit to redeem was commenced.
