11 Mo. App. 364 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This is a petition in ejectment. It appeared at the trial that, on April 14, 1875, the defendant C. R. Stinde recovered a judgment against one Rudolph Behrens, for $1,533.67, in the St. Louis Circuit Court; that execution issuing from this judgment was levied upon the property here in controversy; audthat it was sold thereunder to Stinde,who received a sheriff’s deed therefor. At this time the legal title to the
It is important that this chain of dates should be kept in mind, for it brings us to the more material facts of the case.
“ Gottschalic,
“ St. Louis, Oct. 2, 1877. Attorneys at Law.”
Upon the faith of this certificate, having no knowledge that steps had been taken to prosecute a writ of error in the St. Louis Court of Appeals to. reverse the judgment, and believing that the litigation had finally ended in favor of Behrens and wife, the plaintiff Pierce, in good faith, on October 10, 1877, purchased the land of Mrs. Behrens, and paid a full and fair value therefor, and on the following day received a warranty deed for the same. Behrens and wife immediately delivered possession to him, and he continued in possession, collecting the rents, until March 5, 1879, when he was ousted by the writ of possession from the circuit court, as already stated.
The grounds on which the defence in this case rests are twofold: 1. That at the time of the purchase the plaintiff had actual notice of the claim of the defendant, and hence purchased subject to his equity. 2. That at the time of the purchase, the plaintiff’s claim was being prosecuted in a judicial proceeding, and that there was hence a Us pendens.
If the first proposition is correct, it may be conceded that the plaintiff cannot recover. One who purchases land with knowledge of the fact that the equitable title is claimed by another, purchases subject to the equities of that other, and subjec.t to the liability of having his legal title divested out of him and vested in the owner of such equitable title. This is an elementary proposition, and is not controverted. Rhodes v. Outcalt, 48 Mo. 367; Barksdale v. Brooks, 70 Mo. 197. If the defendant had such a title at the time when the plaintiff purchased the land, and the plaintiff had actual notice of it, then, under the operation of our statute, permitting equitable defences to actions of ejectment, it equally follows that the plaintiff cannot recover; for upon
But what was it of which the plaintiff had notice? He had full notice of this, and of nothing but this : that a claim to the land in question had been set up by the defendant, and that it had been finally adjudicated against him. He had no notice of anything further, unless he is to be charged with the constructive notice created by a Us pendens. We do not mean to intimate, nor at all to discuss the question, whether the doctrine of Us pendens rests upon the idea of notice, or whether it rests upon the impolicy of allowing a party litigant to give to others, pending the litigation, rights to the property in dispute to the prejudice of the opposite party (see Bellamy v. Sabine,) De G. & J. 566, 578), because, whatever may be the ground on which the doctriue rests, if the defendant’s suit was pending at the time the conveyance to the plaintiff was made, the plaintiff cannot recover.
Does this principle apply to a case like the present, where, although a writ of error was sued out at the time the conveyance was executed, no appearance had been made by the defendant in error, no process had been served upon him, no publication had been made, and no other step taken, whereby he was affected with such notice of the proceeding in error as gave the court of error jurisdiction over him? We are of opinion that it does.
With reference to original suits, it is a rule that there is no lis pendens till the defendant has been served with process, or has voluntarily appeared, or until there has been a publication or other lawful proceeding to vest the court with jurisdiction to proceed (Metcalf v. Larned, 40 Mo. 572; Samuels v. Shelton, 48 Mo. 445, 451; Bailey v. McGinniss, 57 Mo. 362, 371; Herrington v. Herrington, 27 Mo. 560, 562; Hirshiser v. Tinsley, 9 Mo. App. 339; Wade on Notice, sect. 348); for it is an elementary rule that there
What would be the condition of such third person, if, at the time of his purchase, he had actual knowledge that the initiatory steps had been taken for the prosecution of the writ of error, we have not to consider. Certainly his rights would not be affected, under the doctrine of lis pendens, though such knowledge might place him in the situation of a subsequent purchaser having actual notice. But the plaintiff in the present case, at the time of his purchase, had no knowledge of the steps taken to prosecute a writ of error. Upon neither ground, therefore, can his title be taken away from him in consequence of the fact that the defendant was successful in prosecuting his writ of error to reverse the judgment which Behrens and wife had obtained against the defendant.
In reaching this conclusion we have proceeded upon what we regard as settled rules of law. These rules are not,
It is needless to enlarge upon these suggestions. This may be regarded as a hard case so far as Mr. Stinde is concerned. His counsel seem to have acted with good professional diligence. An accidental circumstance prevented him from taking an appeal instead of prosecuting a writ of error. The extraordinary diligence of Behrens and wife in ^unloading the property upon an innocent purchaser and moving out of the state, finally defeated him of the fruits of the decision of this court, afterwards rendered in his favor. While he is thus made to suffer without the fault of himself or his counsel, we cannot relieve him by declaring a rule which would transfer his loss to an innocent purchaser for full value, when to do so would contravene settled rules of property, which are based upon the soundest considerations of policy.
It is unnecessary to spread out the instructions given and refused. It is sufficient to say that neither the rulings upon he instructions prayed for, nor the judgment which was rendered, were in accordance with these views. The judgment must, therefore, be reversed and the cause remanded.