H. L. Spencer Company v. Koell

• Decision Date: 08 January 1904
• Docket Number: 13,662 - (153)
• Citation: 97 N.W. 974,91 Minn. 226
• Parties: H. L. SPENCER COMPANY v. MARGARET KOELL
• Court: Minnesota Supreme Court

97 N.W. 974

91 Minn. 226

H. L. SPENCER COMPANY v. MARGARET KOELL

Nos. 13,662 - (153)

Supreme Court of Minnesota

January 8, 1904

Action in the district court for Crow Wing county to establish and enforce a lien upon certain real estate alleged to have been conveyed to defendant in fraud of creditors of one W. H Koell. Charles Syreen and Amanda Syreen duly intervened asserting their purchase of the premises from defendant without notice of the action or the alleged fraud. From an order, McClenahan, J., vacating the service of the summons and granting a motion for judgment in favor of the intervenors upon the pleadings, and from a judgment entered pursuant to the order, plaintiff appealed. Appeal from order dismissed. Judgment affirmed.

SYLLABUS

Lis Pendens.

Before the filing and record in the office of the register of deeds of the notice of lis pendens provided for in G.S. 1894, § 5866, can be made effectual and of any value as a notice to a purchaser in good faith and for value of the tract of land described therein, the action must be commenced by service of the summons upon the defendant as prescribed by statute; but we do not wish to be understood as intimating that, in case of service upon a nonresident by publication, the action is not commenced, within the meaning of the lis pendens statute, until the full period for publication has expired.

Summons -- Substituted Service.

Service of a summons on a nonresident defendant in accordance with the provisions of Laws 1901, c. 63, § 1, is simply a substitute for service by publication, and must be predicated upon a strict compliance with the provisions of G.S. 1894, § 5204.

T. C. Blewitt and John M. Hemingway, for appellant.

Nye & Deutsch, for respondents.

OPINION

COLLINS, J.

In an action in the nature of a creditors' bill to reach certain real property which it was alleged had been fraudulently conveyed to a third party, the complaint was filed on September 4, 1902, and a notice of lis pendens was filed for record in the office of the register of deeds of the proper county at the same time. G.S. 1894, § 5866. On the same day a summons was delivered to the sheriff of the county in which the real property was situated for service upon the defendant. But she was not then in this state, and in fact was a nonresident. Sixteen days afterward the sheriff made return of "Not found" upon the summons, and thereafter it was sent to the sheriff of Franklin county, Iowa, where defendant resided, for service upon her, in supposed compliance with the provisions of Laws 1901, p. 68 (c. 63) § 1, which was an amendment to G.S. 1894, § 5205 -- a section relating solely to the manner in which a summons may be served by publication upon a nonresident. On September 11, 1902, the intervenors, Mr. and Mrs. Syreen, purchased the property from defendant Margaret Koell in good faith, for a valuable consideration, and without any notice of the alleged fraud, except in so far as they may be deemed to have had notice by reason of the filing and recording of the lis pendens. At no time prior to October 3, 1903, did the plaintiff, a corporation, file, or cause to be filed, the affidavit for publication prescribed in G.S. 1894, § 5204, and the acts amendatory thereof; and never prior to that date did it publish, or attempt to publish, in any manner, the summons, as provided for in section 5205. These steps were taken later. It will be observed that the intervenors were good-faith purchasers several weeks before any attempt to comply with the statutory requirements as to the service of a summons upon a nonresident defendant.

The main question in the case is as to the force and effect of the notice of lis pendens filed and recorded September 4, 1902, as before stated, seven days before the intervenors purchased the land, but prior to any attempt to serve the summons. It stands admitted that, unless the action had been commenced when the notice of lis pendens was filed and recorded, the Syreens were not bound thereby, and had no notice of the alleged fraudulent transaction, or which would prevent their obtaining good title to the land. We regard that question as settled by the decisions of this court.

Section 5193, G.S. 1894, expressly provides...