Bond v. Graham

• Decision Date: 23 December 1897
• Docket Number: 237
• Citation: 6 Kan.App. 344,51 P. 812
• Parties: T. F. GARVER AND T. L. BOND, late Partners, v. MARY A. GRAHAM
• Court: Kansas Court of Appeals

51 P. 812

6 Kan.App. 344

T. F. GARVER AND T. L. BOND, late Partners, v. MARY A. GRAHAM

No. 237

Court of Appeals of Kansas, Northern Department, Central Division

December 23, 1897

December 23, 1897.

Error from Lincoln District Court. Hon. W. G. Eastland, Judge. Affirmed.

This is an action to foreclose a real-estate mortgage given by W. I Graham. Graham had sued his wife, defendant in error, for a divorce. She, in her answer, asked a divorce and that the land in question, describing it, be given her. After her pleading making this demand was filed, the mortgage in question was given by her husband, in whose name the land stood. In the divorce proceedings she was awarded the land. The question in this case is, Was the pendency of these divorce proceedings notice of her interest in the land?

Judgment affirmed.

Garver & Larimer and Bond & Osborn, for plaintiffs in error.

C. B Daughters, for defendant in error.

OPINION

WELLS, J.

Section 81 of the Code provides:

"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," etc.

Judge Story says:

"A purchase made of property actually in litigation, pendente lite, for a valuable consideration and without any express or implied notice in point of fact, affects the purchaser in the same manner as if he had such notice, and he will accordingly be bound by the judgment or decree in the suit." 1 Story's Equity Jurisprudence, § 405.

Did the cross-petition of Mary A. Graham give such notice of her claim to the land as to prevent the plaintiffs in error from acquiring a lien thereon in opposition to the judgment thereafter rendered in the divorce case? She alleged in her cross-petition that she was the owner of this land, describing it, and that she caused a farm worth four thousand dollars to be deeded to her husband for his and her own benefit. She asked that it be decreed to her; that she be granted alimony, and that all the property, both personal and real, be appropriated to satisfy such decree. Although the pleading is not a model of clearness and perspicuity, we think it was sufficient to give notice that she claimed the land, and to bind the plaintiffs in error.

In Wilkinson v. Elliott (43 Kan. 590, 23 P. 614), the court says: "If a divorce is asked on...