43 Kan. 590 | Kan. | 1890
The opinion of the court was delivered by
This was an action brought by Augusta L. Wilkinson against John B. Elliott and Alexander C. Wilkinson, for the purpose of canceling a certain deed conveying a quarter-section of land, which purported to have been executed by Wilkinson and the plaintiff to John B. Elliott on May 25,1883, and to quiet the title to the land in her. Some
Two points are made against the judgment: First, that the power of attorney executed by Mrs. Wilkinson, authorizing the conveyance of the land, was void for the reason that she was a married woman, and was therefore incapable of thus conferring authority on her husband to convey the land in controversy; and, second, that the conveyance of the land to Elliott was made during the pendency of the action for divorce and alimony, and that under the doctrine of lis pendens Elliott took the conveyance subject to any judgment that might be rendered in that action.
“ The primary object for which the suit is brought is not material, provided the court has jurisdiction of the property for secondary purposes; and so it would seem that where a bill for divorce and alimony is filed by the wife against the husband, and there is no special allegation in it pointing out any particular property which is sought to be charged with the payment of the alimony, there will be no Us pendens as to either real or personal property of the defendant. Such a case cannot be distinguished from those where the action is professedly in personam, and where the contention in the case is entirely of any particular property. The same results, of the advantage to the public — the same argument, founded upon public policy — would exist in the one class as in the other. If, however, the bill should contain special allegations — should point out particular real or personal property — and, within the limits of the manifest jurisdiction and powers of the court to grant the relief, should seek to have alimony assigned out of such specific property, there would be constructive notice of the Us pendens.”
See also Powell v. Campbell, 20 Pac. Rep. 156; Brightman v. Brightman, 1 R. I. 112; Daniel v. Hodges, 87 N. C. 98 ; Ulrich v. Ulrich, 3 Mackey, 290; Tolerton v. Williard, 30 Ohio
The question remains, however, whether the action of divorce was so pending at the time the land was transferred as to make Elliott a purchaser pendente lite. The plaintiff had executed a power of attorney conferring authority on Wilkinson to convey the land. It was conveyed before Elliott had actual notice that a proceeding for divorce was begun or in contemplation, as we are bound to assume from the finding of the court. The petition for divorce was prepared and indorsed as filed, it is true, before the sale was made; but, as we have seen, it was immediately taken from the office. No prcecipe for summons was then filed, nor was the summons issued in the case until after the conveyance was made. The code prescribes that —
“ When the petition has been filed, 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; but such notice shall be of no avail unless the summons be served or the first publication made within sixty days after the filing of the petition.” (Civil Code, §81.)
The judgment of the district court will be affirmed.