140 Ky. 412 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
This action was instituted in the McCracken circuit court hy the appellant, Charles Perkins, against the ap
Section 2358a, of the Kentucky Statutes, is as follows:
“That no action, cross action, counterclaim, or other proceeding whatever (save actions for forcible detainer or forcible entry or detainer) hereafter commenced or filed in which the title to, or the possession or use of, or any lien, tax, assessment, or charge on real estate, or any interest therein, is in any manner affected or involved, nor any order or judgment therein, nor any sale or other proceeding thereunder, shall in any manner affect the right, title or interest of any subsequent purchaser, lessee or incumbrancer of such real estate or interest for value and without notice thereof, except from the time when there shall be.filed in the office of the clerk of the county court of the county in which such real estate, or greater part thereof, lies, a memorandum stating (one) the number of said action where the action is numbered, and style of such action or proceeding and the court in which it is commenced, or is pending; (two) the name of the person whose right, title, interest in, or
At the conclusion of the evidence, which showed the facts hereinbefore stated, the trial judge gave the jury a peremptory instruction to find a verdict for the defendants, which was done, and from the judgment based upon this verdict this appeal is prosecuted.
Steele was the real owner of the land from which appellant was ejected by the sheriffs. Russell was seeking in the legal procedure against Steele to enforce a lien upon the land. Undoubtedly, before the enactment of ’ section 2358a, Kyy Stats., above quoted, appellant Perkins would have been a lis pendens purchaser and bound by any judgment which the court may have entered against Steele with regard to the property. The statute was enacted to protect lis pendens purchasers by requiring a notice of the pendency of actions to enforce liens to be filed and .recorded in the county clerk’s office in much the same way that a deed is required to' be recorded. Perkin’s lease seems to fall within the very letter of the • statute, and inasmuch as Russell did not comply with its requirements by filing notice in the county clerk’s office, and Perkins was without actual notice, the pendency of the action to enforce the lien could not affect his rights. This being true, as appellant was not a party to the action, nor before the court in any way, the trial judge was without jurisdiction to enter any judgment or make any order which would conclude or affect his rights in the property.
Nor can the officers having the writ in hand shelter under its protection for acts done to one over whom the court had no jurisdiction. The writ of possession was absolutely void as against appellant. The sheriffs, therefore, were trespassers from the beginning, and liable in
Judgment reversed for further procedure consistent with this opinion.