Richardson v. White

18 Cal. 102 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Field, C. J. and Cope, J. concurring.

This bill was filed to carry into execution a decree, and give effect to proceedings touching certain real estate in San Francisco. The decree, thus sought to be enforced, and the operation of which is sought to be extended to- the defendant White, was had in a suit in which this complainant was plaintiff, and Bigler, Butler et al. were defendants. Plaintiff obtained a decree in the last mentioned suit, declaring void a certain sale of real estate by State Commissioners to one Butler. The bill in the present case avers that the defendant White claims to hold this property by virtue of a deed executed by the Commissioners shortly after the commencement ‘of the suit of plaintiff against Bigler, Butler and others. It avers that this conveyance was made without any sale by the Commissioners to White; but that White claims only by assignment, or pretended assignment, of the right of Butler, to whom the property was struck off at the sale by the Commissioners, in October, 1855, and which sale was declared void in the former suit. The answer sets up that the defendant got Butler to buy in the property for him, as his agent, and that, in pursuance of the arrangement with Butler, he paid the purchase money and received the deed.

The theory of the bill is, that as the deed of the defendant, White, was made pendente lite, the decree as well forecloses his claim as the claim of Butler. This proceeding is to carry a decree into execution, not to exhibit a ground for obtaining a decree, but merely to give operation to a decree already obtained, and to make effectual a relief already adjudged. This supposes that the merits of the controversy are already foreclosed, and that it only remains, to apply a remedy, already adjudged between the original parties, to a new party really, though not nominally, bound by the previous adjudication. This supplementary process in aid of the previous decree supposes, of course, that that decree is already equitably binding) though not formally entered, against .the party afterwards proceeded against. To have that effect, the judgment must either be against the party by name or some one who legally represents his interest. It is not always necessary that a party should appear to be such on the record, in order to be bound by the decree. An exception is made at common law in the case of purchasers or assignees pendente lite of the subject of the controversy. By the English rule, such persons were mere volunteers and intruders, and were bound by the results of the controversy. And if this case were tested by these rules, it might be a question, if White were really the purchaser at the time of the filing of the bill, though purchasing in the name or by the bid of Butler, and receiving from the Commissioners the deed after the suit, whether he would be considered as a pendente lite purchaser from Butler, and bound by the judgment against Butler. But it is not necessary to consider this question, either' as to the facts or the law in connection with the matter; for another point is made, which we see no way of surmounting, and that is, that our statute (Wood’s Dig. 170, sec. 27) qualifies the common law doctrine in reference to purchases pendente lite, and denies the effect just attributed to such a purchase. The section is as follows :

“ In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, may file with the Recorder of the county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the property in that county affected thereby. From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.”

The general rule is, that one not a party to a suit is not affected by the judgment; the exception at common law is, that a, pendente lite purchaser, though not a party, was so affected; the qualification of the doctrine made by our statute is, that such purchaser, is not affected unless notice of such lis pendens be filed with the Recorder. It is not necessary to consider whether actual notice would not supply the place of this constructive notice, for the bill makes no such case. The common law doctrine of Us pendens rests upon the fiction of notice to all persons of the pendency of suits, and .to remedy the evils which might grow out of the transfer of apparent legal titles or rights of action to persons ignorant of litigation respecting them, this provision was inserted in our statute. We do not think that the distinction drawn by the ingenious argument of the respondent, between the different kinds of interest in or titles to real estate, can be maintained. We consider our statute, not as giving new rights to the plaintiff, but as a limitation upon the rights which he had before. If no lis pendens be filed, the party acquiring an interest or claim pendente lite stands wholly unaffected by the suit. If he has any rights which, but for the suit, he could set up, he may still maintain those rights. But he would not be foreclosed by a judgment against the party to the suit from whom he obtained his assignment. The object of the statute evidently was to add to the common law rule a single term, to wit: to require for constructive notice, not only a suit, but filing a notice of it; so that this rule is as if it read: “ The commencement of a suit and the filing of notice of it are constructive notice to all the world of the action, and purchasers or assignees, afterwards becoming such, are mere volunteer’s, and bound by the judgment.”

It is not important in this connection whether White has any title, or can set up any; for the question, in the technical view in which we are considering it, is not whether he has or had any title to the property, but whether the title has already been adjudged against him. It is true, the respondent urges that, in such cases as this, the constructive notice could do no good to the assignee, for he could make no defense or better defense than the assignor; but if this is conceded, still the answer is, that the very object of the notice is to give the opportunity of defense, and that it cannot be judicially concluded whether a party may make a defense or not until he has bad an opportunity. Besides, another object of the statute was to give notice in this way of litigation, that third persons might not purchase except advisedly. It might often happen that the nominal defendant, after selling, might feel no interest in litigating, while the real defendant, to whom he sold, would be subject to a judgment of which he had no notice, and to which no defense was made by the original parties. The provision of the statute is simple and easy of observance, and we think we should not be giving its plain meaning to it if we held that purchasers were charged with constructive notice when its provisions were not pursued.

Judgment reversed, and cause remanded for a new trial.