75 Ill. App. 136 | Ill. App. Ct. | 1898
delivered the opinion of the Court.
The principal question presented is as to the application here of the rule As pendens. In ■ determining this we have to inquire, first, whether the property is of a character to be subject to the rules; second, whether the property was sufficiently described in the pleadings; and third, whether the court had jurisdiction of the property and of the person of the one from whom the purchase was made.
It is now regarded as settled by the weight of authorities that the doctrine applies as well to personalty (save negotiable paper) as to real property. Bennett on Lis Pendens, Sec.. 83; Freeman on Judgments, Sec. 194; McCauley v. Rogers, 104 Ill. 578.
The bill contained a sufficient description of the property.
The difficulty of this case arises upon the third question, viz.: whether the court had, at the time of the purchase by appellant, acquired jurisdiction of the person of the vendor, Lillian E. Amphlett. If there was no jurisdiction of her person, then, although the bill definitely described the property, yet the rule would not apply. Bennett on Lis Pendens, Sec. 97; Hallorn v. Trum, 125 Ill. 247; Miller v. Sherry, 2 Wall. 248.
At the time of appellant’s purchase Lillian E. Amphlett, of whom it purchased, was not named in the bill of complaint. There was in the bill a blank space in the list of defendants, where it might have been intended to insert her name, but it was not there inserted until after the purchase by appellant. The summons, however, did include her as a defendant, and was served upon her, and she had entered her appearance, after such service, before the time of the purchase by appellant. Was she then, at the time of the purchase, so far a party to the suit as to be within the application of the rule ? In other words, must she have been named in the bill as a defendant, or was it enough that she was named in the writ, served with same, and that her appearance had been entered in the suit as a defendant ?
It is not the paramount purpose of the rule lis pendens to give notice to intending purchasers, but the rule is founded upon the necessity that a court hold within its jurisdiction and control the subject-matter of litigation, so that it may finally dispose of it by its adjudication. 13 Am. & Eng. Ency. 870; Newman v. Chapman, 2 Band. 102; French v. Loyal Co., 5 Leigh, 682.
The description of the property in the bill would therefore avail nothing, however accurate and however sufficient for purposes of notice, if there was no jurisdiction of the person of the vendor.
And, by this same reasoning, it would not be the filing of the bill, but the service of summons or entering of appearance which, by bringing the person within the jurisdiction of the court, would fix the time of the application of the rule. Although it is essential to the" maintenance of the application of the rule that a bill be filed, describing the property, yet it is the writ and service of the same, or appearance without service, which operates to cause the rule to begin to apply. Hallorn v. Trum, supra; Newman v. Chapman, supra.
And if, in the absence of statutory provision, the summons issue and be served before the filing of the bill, when the bill is thereafter filed the Us pendens relates to the time of the service of the summons, and applies to a sale made between the service of summons and the filing of the bill. Grant v. Bennett, 96 Ill. 513.
But we have a statute governing the bringing of suits in chancery, which provides for the filing of the bill and ;the issuing of process. Chap. 22, Starr & Curtis’ Stat., Secs. 4 and 8.
And there has been a construction of the same in Hodgen v. Guttery, 58 Ill. 431, wherein the court says: “Until the bill is filed no suit is pending, and until it is commenced the clerk can neither legally issue process nor make publication. And if service is had on process issued before the bill is filed, or if publication is thus made, the court will fail to acquire jurisdiction of the person of the defendant.”
JSTo bill has been filed making Lillian E. Amphlett a defendant at the time in question, and hence the unwarranted issuing of .process as to her, and service of the same, did not operate to bring her within the jurisdiction of the court. She could have successfully disputed jurisdiction thus attempted to be acquired. But she did not dispute it. On the contrary, she voluntarily submitted herself to the jurisdiction of the court, and entered her appearance before the purchase by appellant. A bill had then been filed against others, and a suit was pending, in which the property was described, her fraudulent holding of the same alleged, and relief prayed as concerned the property and against her claim thereto. The court having jurisdiction of the subject-matter, it is difficult to perceive why she might not voluntarily, by entering her appearance, confer upon it jurisdiction as well of her person. This she did. And if her right to thus appear as a defendant without leave of court could be questioned by others, it could not be questioned by her, or one claiming through her. The time of the acquiring of jurisdiction being the time of the beginning of the Us pendens, the subsequent sale by her was within its application.
But the petition of appellant was dismissed prematurely: and this without reference to the question of whether the rule lis pendens applied to the sale from Lillian E. Amphlett to appellant. Although the rule did apply, and appellant purchased the property subject to the rights of complainant in the suit pending, as the same might be established by final decree, yet appellant was clearly entitled to a consideration of its rights subject to such final decree. The fact that the bulk of the fund has been used inpayment of solicitors’ fees and master’s fees, does not change the law gov: erning.
Appellant is entitled to follow what little there may be left to a final decree, and, if complainant’s supposed equities prove unfounded, then to again possess itself of what remains of its purchase. To that end it is entitled to remain in the court to which it has been compelled to resort by the order to surrender its purchase to the receiver.
“ The title of the Us pendens purchaser is not affected unless the suit is brought to a successful termination as against his vendor.” Wortham v. Boyd, 66 Tex. 404.
For the error indicated the decree is reversed and the cause remanded.
