Germania Nat. Bank v. Duncan

• Citation: 161 P. 1077,62 Okla. 144,1916 OK 927
• Decision Date: 31 October 1916
• Docket Number: 7519.
• Parties: GERMANIA NAT. BANK v. DUNCAN ET AL.
• Court: Supreme Court of Oklahoma

161 P. 1077

62 Okla. 144, 1916 OK 927

GERMANIA NAT. BANK v. DUNCAN ET AL.

No. 7519.

Supreme Court of Oklahoma

October 31, 1916

Rehearing Denied Jan. 9, 1917.

Syllabus by the Court.

Where the wife files a suit for divorce and alimony, and in her petition describes specifically certain real estate, the property of her husband, and seeks to prevent its alienation and asks that the same be subjected to her claim for alimony and service of process is had upon the husband in due time and in manner and form provided by statute, and the cause is afterwards reduced to judgment awarding her said property as alimony, her claim and right is superior to the lien of an attaching creditor of the husband, who sues and attaches after the institution of the action by the wife for divorce and alimony.

The wife properly intervened in the suit of the creditor and asserted her prior claim to said property, and the judgment of the court in her favor is sustained by the law.

Commissioners' Opinion, Division No. 3. Error from District Court, Kay County; W. M. Bowles, Judge.

Action by the Germania National Bank, a corporation, against F. M Duncan, Jr., and another, in which Grace Duncan intervened seeking the discharge of an attachment. There was a judgment for intervener, and plaintiff brings error. Affirmed.

J. F. King, of Newkirk, for plaintiff in error.

W. K. Moore, of Ponca City, for defendants in error.

HOOKER C.

The bank sued F. M. Duncan and another to recover a judgment upon a promissory note. The suit was filed in the district court of Kay county on March 24, 1915, and summons was issued on the same day, and at the same time attachment was issued in said action against the property of the defendant F. M. Duncan, and levied upon the farm in controversy here, on March 24, 1915.

On June 4, 1915, one Grace Duncan filed her motion to discharge said attachment and to release said farm therefrom, alleging that on January 22, 1915, she was the wife of F. M. Duncan, and that on said date she instituted a suit against him in the district court of said county for divorce and alimony, and that in her petition she had specially mentioned and described the farm levied upon here and had asked that the same be held subject to her claim for alimony. That she obtained service by publication, and that on April 7, 1915, she procured a judgment for divorce, and was in that decree awarded this farm as permanent alimony. The motion to release the farm and to discharge the attachment was heard and sustained by the court on June 15, 1915.

There are two questions to be determined by this record: (1) Did Grace Duncan by virtue of her petition and publication service acquire a lis pendens lien upon said farm? If so, is her lien which was subsequently reduced to a judgment superior to the attachment claim or lien of the bank here?

This court in the case of McWhorter v. Brady et al., 41 Okl. 387, 140 P. 784, said:

"The doctrine of lis pendens, under the common law, was based on the theory of public policy, while, under our statute, it appears to be treated as an element of the law of notice. It has been said (25 Cyc. 1451) 'that it is essential to the existence of a valid and effective lis pendens that three elements be present: (1) The property must be of a character to be subject to the rule; (2) the court must have jurisdiction both of the person and the res; (3) and the property of res involved must be sufficiently described in the pleadings.'

There is no question concerning the first and second elements above named. Let us examine as to the third. In 25 Cyc. 1462, it is said: 'A purchaser or mortgagee or other person who would otherwise be affected by the rule of lis pendens is not affected by the pendency of an action, unless the pleadings therein, at the date of the purchase or the acquisition of rights, describe the property as to which the rule is sought to be applied so as to enable the purchaser or other third person to ascertain its identity. The property is sufficiently described, it would seem, although not described by metes and bounds, if described with reasonable certainty, that is, if enough is alleged to enable a person upon reasonable inquiry, to identify the property and ascertain the object of the suit.'

It is earnestly contended by plaintiff in error in his brief that the statute is no broader than the common-law rule, and that the averments of the petition must be so definite that any one on reading it can learn what property was intended to be made subject of recovery. With this contention we cannot fully agree, for that the statutory rule governing lis pendens is broader and more comprehensive than the common-law rule, in that the statutory lis pendens partaking, as it does, of the nature and doctrine of notice, makes notice the channel or means through, or by which, the real object and purpose of lis pendens is attained. * * * The statute makes a

pending suit constructive notice and requires intending purchasers to exercise a reasonable care and diligence in ascertaining the nature of a pending suit; this requirement is everywhere recognized and abstractors are required to examine the records in the district clerk's office in order to ascertain whether the land, for which they are making an abstract of title, is involved. * * *"

Our statute (section 4732) 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; 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."

The record here shows that the statutory requirement as to publication was complied with.

This court also in Shufeldt v. Jefcoat et al., 151 P. 595, said:

"A purchaser pendente lite of property actually in litigation, for value and without actual notice in fact, takes with notice of the action. * * *"

1 Story, Eq. Jurisprudence, § 405, provides:

"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."

Also in Baker v. Leavitt, 153 P. 1099, this court said:

"A final judgment of a court of competent jurisdiction is conclusive between the parties and their privies in a subsequent action involving the same subject-matter, not only as to all matters actually litigated and determined in the former action, but as to all matters germane to issues which could or might have been litigated and determined therein."

"One who purchases real property from a party to an action involving the title thereto, after the institution and during the pendency of such action, is bound by the judgment rendered therein against his grantor, and acquires no greater rights than his grantor."

For further authority see Holland v. Cofield, 27 Okl. 469, 112 P. 1032.

In the case of Garver v. Graham, 6 Kan. App. 344, 51 P. 812, it is held:

"Where the defendant in an action for a divorce brought by her husband filed an answer and cross-petition denying the grounds alleged by the plaintiff, setting up grounds for a divorce in her favor, that she was the owner of certain lands, describing them, and that her husband was the owner of certain other real estate and personal property, describing it, and praying that a divorce be granted her, that the real estate then in the name of her husband, described in her answer, might be decreed to her, that alimony be granted, and that all the property both personal and real be appropriated to satisfy the decree, held, that such answer and crosspetition brought the property described within the jurisdiction of the court, and that a person subsequently taking a mortgage thereon from the husband only, is

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