Holland v. Cofield

• Decision Date: 16 November 1910
• Citation: 112 P. 1032,27 Okla. 469,1910 OK 336
• Parties: HOLLAND v. COFIELD.
• Court: Oklahoma Supreme Court

112 P. 1032

27 Okla. 469, 1910 OK 336

HOLLAND v. COFIELD.

Supreme Court of Oklahoma

November 16, 1910

Syllabus by the Court.

The word "title," in section 4285, Wilson's Rev. & Ann. St. 1903 (section 5621, Comp. Laws 1909), is to be construed in its broadest meaning and most comprehensive signification.

(a) An action or claim to enforce a vendor's lien comes within its meaning.

Under section 13, art. 1, c. 21, St. Okl. 1893, a lis pendens vendor's lien claim is superior, with certain exceptions to the claim of a grantee in a deed which was unrecorded at the time of the filing of the lis pendens petition, but which was filed for record prior to the time of the reducing said vendor's lien claim to final judgment; said subsequent recording not having such retroactive effect as to overcome the superior lien theretofore obtained by the filing of the lis pendens vendor's lien claim.

Error from District Court, Logan County; A. H. Huston, Judge.

Action by Carrie Cofield against Mamie E. Holland. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

H. M Adams, for plaintiff in error.

Devereux & Hildreth and Charles A. Blair, for defendant in error.

WILLIAMS J.

Section 4285, Wilson's Rev. & Ann. St. 1903 (section 5621, Comp Laws 1909), 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." This section was borrowed from Kansas. Comp Laws Kan. 1879, § 3608 (Code Civ. Proc. § 81). In Smith v. Kimball, 36 Kan. 474, 13 P. 801, said section was construed by the Supreme Court of that state, wherein it was said: "*** We give the word 'title' in the section its broadest meaning and most comprehensive signification. Judge Story's definition is: '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 Eq. Jur. § 405. Among the actions to which this doctrine will apply are suits for the foreclosure of unrecorded mortgages ( Chapman v. West, 17 N.Y. 125; Center v. Bank, 22 Ala. 743; McCutchen v. Miller, 31 Miss. 65); to foreclose vendor's liens; to set aside a decree of partition; to enforce the specific performance of a contract for the sale of real estate; to enforce a charge against real property whatever be the form of the action ( Seabrook v. Brady, 47 Ga. 650). Actions in the nature of creditors' bills have been considered as giving notice to subsequent purchasers of the particular property involved in the controversy. Jackson v. Stone, 13 Johns. [N. Y.] 447; Bradley v. McDaniel, 48 N.C. 128; Fogarty v. Sparks, 22 Cal. 143; Bolin v. Connelly, 73 Pa. 336; Hill v. Oliphant, 41 Pa. 364. And see generally on this subject Wade on the Law of Notice, § 342, and authorities cited." Under this decision, which seems to be binding upon this court ( Farmers' State Bank v. Stephenson et al., 23 Okl. 695, 102 P. 992), the plaintiff's vendor's lien claim comes within the terms of said section. But the question further arises as to whether the defendant, having acquired the interest in the land by virtue of the deed, which was unrecorded at the time of the filing of the lis pendens petition, by recording same prior to the time that the vendor's lien claim was reduced to judgment, acquired a superior interest in the subject-matter of said land against the plaintiff. This question seems to have been settled by the Supreme Court of Kansas in favor of the contention of plaintiff in error in Smith v. Worster et al., 59 Kan. 640, 54 P. 676, 68 Am. St. Rep. 385, wherein the following excerpt is quoted from 13 Am. & Eng. Ency. of Law (1st Ed.) 907, with approval: "The holder of an unrecorded deed at the time a suit is commenced and lis pendens comes in force must be placed in the category of a pendente lite purchaser. This is specially true where the recording laws declare that the instrument shall be effective as against purchasers and creditors from and after the filing for record or recording. As between the parties to the instrument, it is valid without reference to its record; but under such statutes the instrument does not become effective as against purchasers and creditors until it is recorded. So, if prior to such record a suit is commenced involving the property, the lis pendens would take precedence to the rights of a grantee under an unrecorded deed or mortgage, and such grantee or mortgagee could have no better right than if the instrument had actually been made after the lis pendens had come in force, for the recording, as in favor of such persons, is one of the essentials to its validity. This is not an exception to the rule of lis pendens, but an application of the rule itself." Had the holder of the unrecorded deed...