10 P.2d 178 | Cal. Ct. App. | 1932
This action was brought to annul and cancel a deed of trust. Judgment went for plaintiffs, and the appeal is prosecuted from said judgment.
On June 17, 1927, one Tony Ownes filed a suit against respondents herein and Pacific Coast Apartment Builders Corporation, seeking to set aside a deed from respondents to said corporation, upon the ground that the same was executed for the purpose of defrauding plaintiff, a creditor. Upon the same day the plaintiff in said action duly filed for record a lispendens, giving notice of the pendency of the action.
On November 18, 1927, respondents herein filed an amended answer and cross-complaint in said action, seeking to set aside as fraudulent a deed whereby they had conveyed said real property to said corporation. The cause of action was alleged false representations made by Anton Usik and the said corporation, who were named as cross-defendants. No lis pendens was filed by the cross-complainants.
On December 29, 1927, Pacific Coast Apartment Builders Corporation executed a deed of trust covering said property, to secure the payment of the sum of $2,200. Appellant herein is the grantee and assignee of the beneficiary under said deed of trust.
On March 28, 1928, judgment in said action was entered in favor of respondents herein setting aside their deed to said corporation.
Upon proof of the foregoing facts, the trial court in this case adjudged that respondents' title be quieted against said corporation, and enjoined the latter from setting up any claim to said real property. The effect of the judgment was to annul the trust deed, and thus deprive appellant of his security.
[1] It is conceded by both parties that the sole question involved in this appeal is whether or not the said trust deed was taken subject to constructive notice of the right and interest in the real property which respondents sought to assert in their said cross-complaint. Appellee contends that the lis pendens recorded when the complaint was filed was not constructive notice of the pendency of the action set forth in the cross-complaint. It is the contention of respondents "that the lis pendens recorded by the plaintiff, *372 Tony Ownes, gave notice to the world of the claim of defendants Frank and Barbara Orekar (respondents herein), at least from the time that their cross-complaint was filed".
Section
It has been held that the mere pendency of a suit does not, as at common law, charge the subsequent purchaser. A notice of lispendens must appear of record. (Warnock v. Harlow,
In the numerous cases cited by both counsel herein, no statute similar to or resembling our code section is involved. In the state of Georgia, where the common-law rule obtains, and the lispendens dates from the filing of the complaint, it was held that "Relatively to such affirmative cross-action or cross-complaint the defendant occupies the position of plaintiff, and the lispendens as to such cross-complaint operates as against a purchaser from the plaintiff only from the time when it is filed." (Bridger v. Exchange Bank,
Respondents rely upon the case of Welton v. Cook,
The notice relied upon by respondents is constructive only, and no attempt was made at the trial to prove actual notice, either express or implied. Judging from the record before us, it is quite possible that such matters may be developed upon a retrial of the case. We are constrained to hold, however, that appellant cannot be charged with constructive notice of the allegations of the cross-complaint by reason of the failure of respondents to comply with the provisions of section 409 of the Code of Civil Procedure.
The judgment is reversed.
Nourse, P.J., and Sturtevant, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 6, 1932, and an application by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 2, 1932. *375