Houston v. Timmerman

• Decision Date: 03 May 1889
• Citation: 17 Or. 499,21 P. 1037
• Parties: HOUSTON v. TIMMERMAN.
• Court: Oregon Supreme Court

21 P. 1037

17 Or. 499

HOUSTON v. TIMMERMAN.

Supreme Court of Oregon

May 3, 1889

Appeal from circuit court, Linn county.

(Syllabus by the Court.)

Strictly speaking the doctrine of lis pendens is not founded upon notice, but upon reasons of public policy founded upon necessity.

The purpose of the rule is to keep the subject-matter of the litigation within the power of the court until the judgment or decree shall be entered; otherwise, by successive alienations pending the litigation, its judgment or decree could be rendered abortive, and thus make it impossible for the court to execute its judgment or decree.

The general rule is that one who purchases of either party to the suit the subject-matter of the litigation, after the court has acquired jurisdiction, is bound by the judgment or decree, whether he purchased for a valuable consideration or not, or without any express or implied notice in point of fact.

Two things seem indispensable to give effect to the doctrine of lis pendens: (1) That the litigation must be about some specific thing which must necessarily be affected by the termination of the suit; and (2) that the particular property involved in the suit must be so definite in the description that any one reading it can learn thereby what property is intended to be made the subject of litigation.

In a divorce suit the real property which comes to the wife as a result of the divorce is not the subject-matter of the litigation. The court has no jurisdiction to affect or divest the title of the husband to lands owned by him, or to decree one-third of them to the wife, independent of a decree for divorce. Nor has the plaintiff any title upon which to base a suit to recover any portion of the same, except as it comes by force of the statute upon a decree for a divorce.

Temporary alimony may be granted pendente lite, but the title of the real estate of defendant remains intact, and cannot be divested during the pendency of the litigation, but only when a decree has been rendered that the marriage is dissolved.

It is "whenever a marriage shall be declared dissolved" that the statute operates, not before, or pendente lite, and the court is then authorized, and it becomes its "duty," "to enter a decree" for the undivided one-third part in fee of the whole of the real estate "owned by the defendant at the time of such decree" for a divorce.

While the prosecution of a divorce suit might terminate in a decree which would affect as a result thereof the property of the defendant, such real property is not the specific subject of the controversy, and by reason thereof is not withdrawn from such burdens as may be legally imposed upon it for just claims upon judgments recovered and docketed against its owner prior to divesting him of his title by force of the statute under the decree for a divorce.

It results that a purchaser of such lands at an execution sale upon such judgment is not affected by, or subject to, the rule of lis pendens.

While since the decision in Bamford v. Bamford, 4 Or. 30 it has been deemed essential to reach the property of the guilty party that such property should be described in the complaint and decree, yet it is doubtful whether any such allegation is necessary, but that it is a sufficient compliance with the last clause of section 499, Code Or., to say, in effect, that the party obtaining the divorce is thereby entitled to one-third of the real property owned by the other.

In this view, if any question arises as to what property was so owned by him, it can be determined by appropriate proceedings for that purpose between the parties interested, much better than in a divorce suit, in which it is neither convenient nor proper that third parties, in order to protect their rights should be compelled to intervene and become parties to a controversy between husband and wife in a divorce proceeding.

Hewitt & Bryant and Tilman Ford, for appellant.

J.K. Weatherford and D.R.N. Blackburn, for respondent.

LORD J.

This was a suit to partition certain lands described herein. The defendant denied that the respondent had any interest in said lands, and alleged that she was the owner in fee-simple, and entitled to the possession of the whole of said premises. The plaintiff, in reply, denied this, and alleged affirmatively that some time in July, 1884, she commenced a suit against A.J. Houston for a divorce and alimony, and for an equal undivided one-third of the real property then owned by said Houston, and that he was the owner in fee of said real property, which was duly described therein. That the summons in said divorce suit was served on _______, 1884, and that prior to that time and prior to the 26th day of September, 1884, the defendant Timmerman had notice that the complaint for divorce and one-third of said real property had been filed by the plaintiff against her husband. That on the 5th day of February, 1886, a decree was entered, granting a divorce in favor of the plaintiff, and adjudging her to be the owner of the undivided one-third of said real property, etc. The court below, after a trial of said cause, rendered a decree therein, granting the prayer of plaintiff for partition, except as to the 160 acres of land mentioned therein, and partition was ordered and made on June 26, 1888, and confirmed by the court. The defendant Timmerman derived her title to the premises in dispute in this wise: On the 15th day of March, 1880, the plaintiff's husband, A.J. Houston, for value, made and delivered his promissory note to the defendant Timmerman for the sum of $3,400, with interest at the rate of 10 per cent. per annum from date; that, the said A.J. Houston failing to pay said note, the defendant Timmerman commenced suit on the 26th day of September, 1884, and caused service of summons to be made upon him on that day, and that on October 27, 1884, the defendant Timmerman recovered judgment against the said A.J. Houston for the sum of $5,463.87, which, on the same day, was duly docketed in the judgment lien docket, and thereupon became a lien upon all the real property mentioned in the complaint in this suit. It further appears that on March 19, 1883, said A.J. Houston made and delivered his promissory note to J.T. Williams for $1,000, with interest from date at the rate of 10 per cent. per annum, payable six months after date, and to secure the payment of the same executed a mortgage, which was duly recorded, upon the 160 acres of land set out in the complaint. The said Houston failing to pay said note, the mortgage was foreclosed against the said Houston and the plaintiff herein. The defendant Timmerman, however, answered, setting up her judgment, and asked, if the property be sold to foreclose said mortgage, that the overplus, if any, should be applied in payment of her judgment, and a decree was accordingly so entered, etc.; that execution was issued upon said decree, and said 160 acres was sold to the defendant Timmerman for $2,500; that thereafter, on May 13, 1885, execution was issued upon said judgment, and the remainder of the premises described herein was sold to the defendant Timmerman, and said sale confirmed, and deeds were duly executed by the sheriff to said defendant.

It will be noticed that the suit of the defendant Timmerman to recover the amount due on the note against A.J. Houston, who was then the husband of the plaintiff herein, was commenced after the suit of the plaintiff for divorce against her husband, and that a judgment was recovered and docketed before a decree in the divorce suit was rendered, and in which one-third of the real estate then owned by the husband was decreed the plaintiff's. It is true, there is no direct proof of the date of the service of the summons in the divorce suit; but, as this will not affect the result reached, it is immaterial. The contention is that the defendant Timmerman was a purchaser pendente lite. There is, however, a preliminary question to be first disposed of, namely, that the appeal was not taken within six months as allowed by law. The answer to this is that the objection relates to the interlocutory or first decree, and not to the final decree, and that, as our own Code does not authorize an appeal from interlocutory judgments or decrees, but only from such as are final, and, the appeal from the final decree being within six months, there was a right of appeal, and the objection, therefore, is unavailing.

An examination of the statutes of the two states from which the authorities were read, to the effect that an appeal might be taken before a final judgment or decree was entered shows that appeals in those states may be taken from interlocutory judgments or decrees, which, not being the case under our Code, they fail on application. See Freem. Co-tenancy, §§ 519, 527. But to return. Among the ordinances or rules adopted by Lord Chancellor BACON "for the better and more regular administration of justice" was one which provided that, where a person "comes in pendente lite and while the suit is in full prosecution, and without any color of allowance, or privity of the court there regularly, the decree bindeth." Chancellor KENT said that a "lis pendens duly prosecuted and not conclusive is notice to a purchaser so as to affect and bind his interest by the decree." Strictly speaking, however, the doctrine of lis pendens is not founded upon notice, but upon reasons of public policy,...