Scott v. Rogers

77 Iowa 483 | Iowa | 1889

Given, C. J.

I. The validity of the plaintiff’s mortgage is not questioned, and herein this case differs from Sesterhen v. Sesterhen, 60 Iowa, 301. This morthaving been executed and recorded prior to the rendering of either of the judgments for alimony, it is entitled to priority, unless the petition, upon which these judgments were rendered, comes within the provisions of section 2628 of the Code, which provides : “ When a petition has been filed affecting real estate, the action is pending so as to charge third persons with notice of its pendency, and, while pending, no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s title, if the real property affected be situated within the county where the petition is filed.” In O’Brien v. Putney, 55 Iowa, 292, this court cited approvingly section 196 in Freeman on Judgments, wherein it said: “In order to bring the doctrine of lis pendens into effect, it is indispensable that the litigation should be about some specific thing which must necessarily be affected by the termination of the suit. It does not apply to an action for divorce and for alimony to be paid out of the husband’s estate, because such a suit does not apply to any specified part of the husband’s estate, real or personal. The judgment which may be obtained may, from the docketing thereof, constitute a lien on certain property, but in this, as well as in all other respects, it no more constitutes a lis pendens, or a claim to particular estate, than a suit upon a promissory note, or any other sufficient cause of *485action.” See, also, Benn. Lis Pendens, sec. 94, note 8, and section 99, note 1, and section 219, and note ; also Wade, Notice, sec. 352, and cases cited. This doctrine is emphasized by the provisions erf our Code for the granting of attachments in actions for divorce, and for granting injunctions. Under the facts of the case and the authorities cited, we are of opinion that the plaintiff’s petition, as filed before the execution of the mortgage, did not constitute a lis pendens, and that the mortgage is superior to either of the judgments.

Reversed.

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