105 Ky. 63 | Ky. Ct. App. | 1898
delivered the opinion of the court.
W. N. Smoot, a citizen of Bath county, died intestate in September, 1891, leaving a widow and two sons as his only heirs at law. He owned a large landed estate and considerable personal property, and soon after his death, in a proceeding instituted in the county court, dower was alloted to his widow, and the residue of his lands divided between his sons. Deeds were made pursuant to this division, and the parties took possession of their respective shares. One tract of land, containing 218 acres, was allotted and conveyed to the sons jointly, and they so used and occupied it until the 4th day of- September, 1893. On that day one of the sons, J. J. Smoot, sold his undivided half interest in this tract of land to the appellant, Parks,
The proof in the case is undisputed that appellant acted in good faith in the transaction, and that he did not know of the pendency of the suit for settlement when he paid J. J. Smoot for the land, on October 17, 1893. Upon the question of Us pendens, Mr. Freeman, in his work on Judgments (volume 1, sec. 198), says: “Lis pendens is notice of all facts apparent on the face of the pleading, and of those other facts by which the facts so stated necessarily put a purchaser on inquiry,” and the averments of the petition in this case were sufficient to give notice to the public of the purposes of the suit. The main question, therefore, to, be considered, is, was the executory contract for the purchase of the land in contest entered into between appellant and J. J. Smoot, one of the heirs at law, on September á, 1891, an alienation thereof?
Sec. 2087, Ky. Stat., provides that: “When the heir or devisee shall alien, before suit brought, the estate descended or devised, he shall be liable for the value thereof, with legal interest from the time of alienation, to the creditors of the decedent or testator; but the estate so aliened shall not be liable to the creditors in the hands of a dona fide purchaser for valuable consideration, unless action is instituted within six months after the estate is devised or descended to subject the same.” Nearly two years had elapsed after the death of intestate before suit for the settlement of his estate was instituted; the widow and
It is a rule of the common law, that has obtained for centuries, that during the pendéncy óf an equitable suit neither party to the litigation can ,alienate the property in dispute so as to affect the rights of his opponent; and the doctrine of lis pendens applies only when a third person attempts to intrude into a controversy by acquiring an interest in the matter in litigation pending the suit. See 2 Pom. Eq. Jur. Sec. 663. But neither the rule nor the reason of the rule applies where a person takes by conveyance prior to the commencement of the suit, without actual notice; and this is true whether the interest be acquired by deed, or only by executory contract. In Clarkson v. Morgan’s Devisees, 6 B. Mon. 444, speaking of this subject, this court said: “But, if the contract was executory, it could not be overreached or concluded by a subsequent suit against Parker, without giving those who claimed under it a right to be heard. Nor could the rights of Fowler, or those claiming under him, be concluded, though the contract had been in parol, the same being consummated by a subsequent deed, as was determined by this court in Clary’s Heirs v. Marshall, 5 B. Mon. 266. If a right or interest passed from Parker to Fowler by contract which was obligatory upon the parties, that right or interest can not be overreached or concluded by a subsequent suit against Parker.” And in Parks v. Jackson, 11 Wend. 444 [25 Am. Dec., 656], the Court of Appeals of New York held that: “A purchaser
And Mr. Pomeroy (Eq., Jur. Sec. 105), discussing equit
No action having been instituted to subject the land in contest to the payment of the debts of the ancestor within six months after the estate descended to the heirs, it is not liable to the demands of creditors, in the hands of a bona fide purchaser for a valuable consideration, who was invested with the equitable title and right of possession by an executory contract made prior to the institution of the suit of administrators. Having acquired the beneficial ownership of the land, a purchaser has the right to perfect his legal title thereto by the payment of the balance of the purchase money and taking deed, unaffected by the rule of lis pendens; and we are of the opinion that the court erred in subjecting to the demands of creditors the land purchased by appellant from J. J. Smoot. For the reasons indicated the judgment is reversed, and the cause remanded for proceedings consistent herewith.