Neal v. Girdner

• Decision Date: 17 March 1987
• Docket Number: No. WD,WD
• Citation: Neal v. Girdner, 725 S.W.2d 924 (Mo. App. 1987)
• Parties: John C. NEAL, Jr., Appellant, v. Lewis O. GIRDNER, et al., Respondents. 38632.
• Court: Missouri Court of Appeals

Page 924

725 S.W.2d 924

John C. NEAL, Jr., Appellant, v.Lewis O. GIRDNER, et al., Respondents.

No. WD 38632.

Missouri Court of Appeals Western District.

March 17, 1987.

Robert L. Shirkey, James M. Slone, Kansas City, for appellant.

Douglas S. Roberts, Chillicothe, for respondents.

Before KENNEDY, P.J., and LOWENSTEIN and GAITAN, JJ.

KENNEDY, Presiding Judge.

Plaintiff appeals from a summary judgment in favor of defendants Bonderer, Jones, Hubbard, Nardini and Cramer Farms, Inc., respondents here.Plaintiff's action was for an accounting and, alternatively, to set aside conveyances of several tracts of Livingston County and Caldwell County real estate from himself to defendantsMary Drennan and Lewis O. Girdner; conveyances by them to defendants Bonderer, Jones, and Hubbard respectively; and conveyances by Hubbard to defendant Nardini, and by Nardini to defendantCramer Farms, Inc.(We take it that this is a continuation, with amendments and added parties, of the lawsuit which was before us on appeal in Neal v. Drennan, 640 S.W.2d 132(Mo.App.1982), wherein we dismissed the appeal because of the absence of indispensable parties.)Plaintiff's claims against defendants Drennan and Girdner as immediate grantees were separated from the claims against remote grantee respondents here.The claims against Drennan and Girdner are pending in the trial court and are not involved in this appeal.The trial court made the summary judgment in favor of the remote grantees final for purposes of appeal.Rule 81.06.

The dispositive question in the case is whether these defendants were good-faith purchasers of the real estate for value without actual or constructive notice of plaintiff's equitable claims.If so, they took the land free and clear of plaintiff's equities, if any.Hatcher v. Hall, 292 S.W.2d 619, 626(Mo.App.1956);Kovacevic v. City of Chicago, 47 Ill.App.3d 674, 7 Ill.Dec. 819, 822, 365 N.E.2d 104, 107(1977).See generally92 C.J.S.Vendor & Purchaser§ 361(1955).Plaintiff does not dispute that defendants gave full value of the land.The only real issue is whether a spent and functus officio notice of lis pendens in an earlier concluded lawsuit for plaintiff against defendant Girdner gave the defendants-respondents actual or constructive notice of plaintiff's equitable claims.Plaintiff argues the affirmative of that proposition, defendants the negative.

The facts are these, as alleged in plaintiff's petition:

Plaintiff on August 22, 1974 conveyed the tracts of land in question here to Mary Drennan by quit claim deed unqualified on its face.The fact was, according to the allegations of his petition, the conveyance was made by him at the request of defendant Girdner as security for money owed by him to Girdner upon a loan.The oral agreement was that Drennan would sell the land only with plaintiff Neal's agreement and that the proceeds of any such sale would be applied upon Neal's indebtedness to Girdner.Drennan in violation of the agreement on March 3, 1975, conveyed part of the land directly to Girdner, and conveyed another part to him on March 12, 1976.

In 1975plaintiff filed in Livingston County a lawsuit entitled Neal v. Girdner, No. 41702, to set aside the conveyances mentioned above and to revest title in himself.Notices of lis pendens were duly filed in Livingston and Caldwell Counties, where the real estate was located.This suit was dismissed with prejudice by the court on June 12, 1975, and plaintiff did not appeal from the judgment.

Subsequently to the dismissal with prejudice, Drennan conveyed various tracts of real estate respectively to the defendants Jones (November 6, 1975), Bonderer (December 22, 1975), and Hubbard (January 2, 1976).As noted, the sales were at arms length for value.Hubbard afterwards conveyed the land he had purchased to defendant Nardini, who in turn conveyed it to defendantCramer Farms, Inc. for actual or constructive notice to defendants, plaintiff depends altogether upon the notices of lis pendens which were filed in connection with the earlier lawsuit against Girdner which had gone to final, unappealed-from judgment.Did this notice of lis pendens, by its appearance upon the public records in the recorder's offices in Livingston and Caldwell Counties provide the defendants with constructive notice?We hold it did not.

Upon the termination of the suit to which the notice of lis pendens referred, the notice lost all legal force and vitality and became, in the Latin phrase, functus officio.Tate v. Sanders, 245 Mo. 186, 149 S.W. 485, 490(1912);Bristow v. Thackston, 187 Mo. 332, 86 S.W. 94, 98(1905).See generally51 Am.Jur.2dLis Pendens§ 35(1970).Its mere presence upon the public records afforded no constructive notice to the defendant purchasers.Davis v. Hall, 90 Mo. 659, 3 S.W. 382, 383(1887);Herrington v. Herrington, 27 Mo. 560, 562(1858).

Did the defendants, though, as plaintiff argues, have actual notice of plaintiff's claim based upon their knowledge of the presence upon the public records of the lis pendens notice, gained from its mention in their attorneys'...