Burleson v. McDermott

• Citation: 21 S.W. 222,57 Ark. 229
• Parties: BURLESON v. MCDERMOTT
• Decision Date: 04 February 1893
• Court: Supreme Court of Arkansas

21 S.W. 222

57 Ark. 229

BURLESON v. MCDERMOTT

Supreme Court of Arkansas

February 4, 1893

Appeal from Johnson Circuit Court, JEREMIAH G. WALLACE, Judge.

Judgment reversed and cause remanded.

The appellant pro se.

1. An unrecorded mortgage is not binding upon third persons, though they have actual knowledge of its existence. 9 Ark. 112; 20 id. 190; 33 id. 203; 40 id. 536; 22 id. 136.

2. The doctrine of lis pendens applies to suits to foreclose a vendor's lien. 16 Ark. 175; 29 id. 357; 31 id. 491.

3. As Brown took his mortgage after the complaint was filed and summons issued, he was a purchaser pendente lite. Mansf. Dig sec. 4967; 31 Ark. 491; 11 Am. St. Rep. 848; 19 Pacific Rep.532; 25 id. 963; Bennett on Lis Pendens, secs. 64, 65; 6 Am. St. Rep. 760.

A. S McKennon, for appellees.

Brown was not a purchaser pendente lite. Sec. 4967 Mansf. Dig. controls questions of limitation merely. See secs. 4497-8-9, 4500, 4502. The doctrine of lis pendens remains as at common law. Sec. 6363. See 11 Am. St. Rep. 848; 39 Am. Rep. p. 487 and note; 9 Paige, Chy. 513; Hempst. 213; 13 Am. & Eng. Enc. Law, 883. Common law rule was that the lis pendens began when the service of the subpoena was had. See also 14 Am. Dec 766; 1 Story, Eq. Jur. sec. 405; Jones on Real Est. Mortg. vol. 1, sec. 559; Mansf. Dig. sec. 671.

OPINION

BATTLE, J.

A stranger to an action in chancery was not affected by it, at common law, because of purchases made or liens acquired by him prior to the time when the subpoena was served on the defendants, and the bill was filed. Until then he could purchase the property in litigation, or acquire liens thereon, without being subject to the decree that might be rendered in the suit, or being affected by it. Until then there was no lis pendens as to him. But after this, if he purchased or acquired liens from a party to the action while it was pending, he was, as to the property, bound by the decree that was rendered against such party. Murray v. Ballou, 1 Johns. Ch. 566; Hayden v. Bucklin, 9 Paige Ch. 512.

One of the objects of this rule, in fixing the time when it should take effect, manifestly was to enable strangers to suits in chancery, by means of the bills filed therein, to ascertain whether the property, about which they desire or intend to contract, is involved in such suits, and to afford them an opportunity to acquire the information before contracting. At the time it was adopted, it was not necessary to file the bill until the subpoena for the defendant was issued and served. Hence its operation was postponed until after the service of the subpoena. Hayden v. Bucklin, 9 Paige Ch. 512.

But it is said that the rule as stated prevailed, without modification, in England after the enactment of 4 Anne, chap. 16. Bennett on Lis Pendens, sec. 51a. This may be true. But that statute, except in a few actions named, prohibited the issue of any subpoena, or other process for appearance, out of any court of equity, till after the bill was filed with the proper officer. It merely made a change in the order of the filing of the bill, but made none in the proceedings necessary to commence an action.

But it has been modified in this State. Under our statutes a lis pendens, as to third persons as well as the parties begins when a complaint is filed and a summons is issued thereon. Mansfield's Digest, sec. 4967. When this is done, the complaint becomes a record of the court, and a notice to all persons of its contents and the object of the suit. Its filing affords an opportunity to all concerned to know the scope of the litigation thereby commenced and the property involved. The service of the subpoena, which was made necessary at common law by reason of the position it occupied in the order of proceedings in an action, has passed out and ceased to exist as one of the prerequisites to the creation of a lis pendens in this State, there being no necessity for it in that respect. It is neither necessary to begin the action nor to give notice to third persons of its scope, object or nature, the statute having imposed the whole of that office upon the complaint and the issue of the summons. Hence it is not necessary to create a lis pendens as to third persons. Cessante ratione legis, cessat ipsa lex. Rothschild's Adm'r v. Kohn, 93 Ky. 107, 19 S.W. 180; Bennett on Lis...