De Pass v. Chitty

Decision Date27 June 1925
Citation105 So. 148,90 Fla. 77
PartiesDE PASS v. CHITTY et al.
CourtFlorida Supreme Court

En Banc.

Suit by H. M. Chitty and others, as surviving trustees under the will of Mary Ann Chitty, deceased, against M. H. De Pass, to restrain sale of the interest of Samuel R. Chitty in certain lands. From an order overruling defendant's demurrer to complainants' bill, defendant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Common-law land equity rule that lis pendens give constructive notice to world on commencing of suit held modified by statute. Under the common-law and equity rule of lis pendens the world was constructively on notice immediately suit was commenced. This rule as to notice has been materially modified in many states by statute; the law in our state effecting the subject-matter being section 2853, Revised General Statutes of Florida.

Notice must comply with statutory requirements. Before any suit at law or in equity shall operate as a lis pendens, notice of the institution of the suit must be filed in the clerk's office, which notice must contain the names of the parties the time of instituting the suit, the name of the court in which pending, the description of the property involved, and a statement of the relief sought as to such property.

Scope and effect of statutory notices of lis pendens to be determined from general or common-law rules. The statute does not attempt to define the scope of the notice of lis pendens when so filed and recorded, so we are left to glean such scope and effect from the general or commonlaw rules on the subject. Peninsular Naval Stores Co. v. Cox, 57 Fla 505, 49 So. 191.

Statute requiring filing and recording of notice of lis pendens held not to effect common-law method of enforcing doctrine of lis pendens. Our statute is not restricted to actions in which the title to real property or some interest therein is involved, but applies to 'any property,' and, except as to notice, it in no way affects the common-law method of enforcing the doctrine of lis pendens.

General rule as to notice of lis pendens stated. The general rule is that lis pendens is notice of all facts apparent on the face of the pleadings and such other facts as the pleadings would necessarily put the purchaser on inquiry and of the contents of exhibits filed and proved, if they are pertinent to the matter in issue or the relief sought.

Notice of lis pendens is limited to matters in dispute between parties to action, and its operation does not extend beyond prayer for relief. Notice is also limited to those matters in dispute between the parties to the action, and has no application to matters not in issue and not pertinent to any issue and which cannot be determined in the proceedings, nor does its operation extend beyond the prayer for relief.

Litigation to which notice of lis pendens refers must result in judgment or decree affecting property described therein which property must be pertinent to and within issues made. It is further essential that the litigation to which the notice of lis pendens refers shall result in a judgment or decree affecting the property described therein, which property must be pertinent to and within the issues made.

Extent of notice of lis pendens in partition suit stated. The notice of lis pendens in a partition suit gives notice only of the relief sought as to the property described therein, and the facts contained in the record of that suit at the time instituted for the purposes thereof, and for the benefit of the parties thereto.

Appeal from Circuit Court, Alachua County; A. V Long, Judge.

COUNSEL

E. G. Baxter and S. L. Scruggs, both of Gainesville, for appellant.

Thomas W. Fielding, of Gainesville, for appellees.

OPINION

TERRELL. J.

Mary Ann Chitty, the mother of Samuel R. Chitty, and appellees here, died testate in August, 1919, seized and possessed of certain lands in Alachua county, Fla. In December, 1919 Samuel R Chitty and his sister Annie Taylor filed their bill of complaint in the circuit court of said county of Alachua against the children and grandchildren of deceased, praying for partition of said lands. Notice of lis pendens was filed and recorded along with the bill for partition. Six days after filing the partition suit appellant, M. H. De Pass, sued Samuel R. Chitty on a promissory note, and recovered judgment against him June 20, 1920, for the sum of $385, and costs.

In the partition suit there was a decree ordering partition of the lands, and the commissioners reported that it would be impossible to make an equitable distribution. The court then ordered sale of the lands, which was made May 7, 1923, to A. B. Chitty, one of the defendants in the partition suit, for $3,700. The sale was confirmed May 31, 1923, and on June 12th following appellant secured execution on his judgment against Samuel R. Chitty, and placed it in the hands of the sheriff, who levied on the interest of said Samuel R. Chitty in and to said lands.

Suit was then brought by appellees to restrain the sale of the interest of said Samuel R. Chitty in said lands. The chancellor granted the restraining order and overruled appellant's demurrer to the bill. Appeal is taken from the order overruling the demurrer. In this state of the record the sole question presented for our determination is this: What is the effect of the lis pendens filed with the partition suit upon the judgment of appellant against the purchaser at the partition sale, or, stated a little more concisely, what is the effect of a lis pendens filed with bill to partition land?

The term 'lis pendens' literally implies a pending suit. The doctrine of lis pendens is defined as the jurisdiction, power, or control which courts acquire over property involved in a suit pending the continuance of the action and until final judgment therein. Dupee v. Salt Lake V. L. & T. Co., 20 Utah, 103, 57 P. 845, 77 Am. St. Rep. 902; 17 R. C. L. 1008.

The doctrine of lis pendens had its origin in the civil law, but as applied in our time it seems to have originated in the commonlaw rule obtaining in real actions to the effect that if the defendant alienated during the pendency of the suit, the judgment in the real action overreached the alienation. The rule was later adopted from the commonlaw courts by Lord Bacon as one...

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32 cases
  • AVALON ASS. OF DEL. LIMITED v. AVALON PARK ASS. INC.
    • United States
    • Florida District Court of Appeals
    • 7 d5 Julho d5 2000
    ...It also enabled the court to deal with the property and preserve its jurisdiction over the subject matter. DePass v. Chitty, 90 Fla. 77, 105 So. 148, 149 (1925); 51 Am.Jur.2d Lis Pendens § 1 (1970). But because lis pendens operates as a cloud on the title and prevents an owner from selling ......
  • In re Martin
    • United States
    • U.S. Bankruptcy Court — Southern District of Florida
    • 10 d5 Maio d5 2002
    ...it is defined as the jurisdiction, power, or control which courts acquire over property involved in a pending suit. See DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925). A notice of lis pendens or actual notice filed on the public records, protects both the lis pendens proponent and third p......
  • Procacci v. Zacco
    • United States
    • Florida District Court of Appeals
    • 3 d3 Junho d3 1981
    ...on the face of the pleadings and such other facts as the pleadings would necessarily put the purchaser on inquiry." De Pass v. Chitty, 90 Fla. 77, 105 So. 148, 150 (1925); Marchand v. De Soto Mortgage Co., 149 So.2d 357 (Fla.2d DCA 1963). Thus, lis pendens is merely a "statutorily authorize......
  • Adhin v. Loans
    • United States
    • Florida District Court of Appeals
    • 1 d5 Outubro d5 2010
    ...and is defined as the jurisdiction, power, or control that courts acquire over property involved in a pending suit. See De Pass v. Chitty, 105 So. 148, 149 (Fla. 1925). The notice, typically recorded in the chain of title was, at common law, intended to warn all persons that a certain piece......
  • Request a trial to view additional results
6 books & journal articles
  • Chapter 10-1 Necessary and Indispensable Parties
    • United States
    • Full Court Press Florida Foreclosure Law 2020 Title Chapter 10 Litigating With Other Interests in the Foreclosure Context
    • Invalid date
    ...Avalon Assocs. of Delaware Ltd. v. Avalon Park Assocs., Inc., 760 So. 2d 1132, 1134 (Fla. 5th DCA 2000) (citing DePass v. Chitty, 90 Fla. 77, 105 So. 148, 149 (1925); Taylor v. Steckel, 944 So. 2d 494, 497 (Fla. 3d DCA 2006); Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087, 1090 (F......
  • Chapter 10-1 Necessary and Indispensable Parties
    • United States
    • Full Court Press Florida Foreclosure Law 2022 Chapter 10 Litigating With Other Interests in the Foreclosure Context
    • Invalid date
    ...Avalon Assocs. of Delaware Ltd. v. Avalon Park Assocs., Inc., 760 So. 2d 1132, 1134 (Fla. 5th DCA 2000) (citing DePass v. Chitty, 90 Fla. 77, 105 So. 148, 149 (1925); Taylor v. Steckel, 944 So. 2d 494, 497 (Fla. 3d DCA 2006); Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087, 1090 (F......
  • Chapter 6-1 Introduction
    • United States
    • Full Court Press Florida Foreclosure Law 2022 Chapter 6 Foreclosure Complaints
    • Invalid date
    ...property is located and such notice has not expired pursuant to subsection (2) or been withdrawn or discharged").[21] De Pass v. Chitty, 90 Fla. 77, 80 (Fla. 1925); U.S. Bank Nat'l Ass'n v. Bevans, 138 So. 3d 1185, 1189 (Fla. 3d DCA 2014).[22] Fla. Stat. § 48.23(2); see also Adhin v. First ......
  • Chapter 6-1 Introduction
    • United States
    • Full Court Press Florida Foreclosure Law 2020 Title Chapter 6 Foreclosure Complaints
    • Invalid date
    ...property is located and such notice has not expired pursuant to subsection (2) or been withdrawn or discharged").[21] De Pass v. Chitty, 90 Fla. 77, 80 (Fla. 1925); U.S. Bank Nat'l Ass'n v. Bevans, 138 So. 3d 1185, 1189 (Fla. 3d DCA 2014).[22] Fla. Stat. § 48.23(2); see also Adhin v. First ......
  • Request a trial to view additional results

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