236 Mass. 252 | Mass. | 1920
In Steele v. Estabrook, 232 Mass. 432, the plaintiff was directed to convey his interest in certain real estate, described in his bill of complaint, to the defendant Hervey W. Estabrook. The rescript was filed on March 6, 1919. After the
The mortgagees acquired the plaintiff’s title while the suit was pending, and the interest of the plaintiff in this real estate was involved in the suit. Steele v. Estabrook, supra, page 442. The doctrine of lis pendens as generally understood follows from the principle that the court has control over the subject matter of the litigation, while the suit or action is pending; “he, who purchases during the pendency of the suit, is bound by the decree, that may be made against the person, from whom he derives title. The liti
Under R. L. c. 134, § 12, with exceptions not now material, proceedings at law or equity, affecting the title to real estate, are not effective except against the parties thereto, their heirs and devisees and persons having actual notice thereof, until a memorandum of the proceedings is recorded in the registry of deeds. No notice of the pending suit, as required by the statute, was recorded in the registry of deeds; but the mortgagees were the plaintiff’s counsel, the bill in equity was filed in March, 1914, and the real estate was conveyed to them in July, 1916. This property was described in the first paragraph of the plaintiff’s bill; in the second prayer for relief he asked that an account be taken on the ground that the defendants had wrongfully appropriated this particular real estate, and that the defendants be ordered to pay him for the value of his interest in the property, on the ground stated. See Steele v. Estabrook, supra, page 442. The mortgagees were acting as counsel for the plaintiff when the conveyance was made. It is clear that as such they had actual notice of the proceedings and that the plaintiff’s title to the real estate in question was involved in the suit within the meaning of R. L; c. 134, § 12. See Wenz v. Pastene, 209 Mass. 359; Hughes v. Williams, 218 Mass. 448, 451. The mortgage, therefore, was not valid against the defendants.
The mortgagees contend that, even if they cannot claim title to the real estate under their mortgage, the proposed decree should be modified so that the money payable to their client, the plaintiff, should be ordered to be paid to them. The report of the case does not show that the question of the validity of the mortgage between the parties to the instrument was passed upon, and it does not appear that the value of the mortgagee’s services was determined. Under these circumstances the decree as ordered should not be modified. The decree entered upon the supplemental bill ordering the mortgagees to discharge the mortgage, and the order for the final decree, are affirmed.
So ordered.