Rardin v. Rardin S.

• Decision Date: 18 November 1919
• Citation: 85 W.Va. 145
• Court: West Virginia Supreme Court
• Parties: Belle Rardin v. B. B. Rardin et als.

85 W.Va. 145

Belle Rardin

v.B. B. Rardin et als.

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1919.

Decided November 18, 1919.

1. LIs Pendens Rights of Purchasers Pendente Lite Effect of

Decree.

According to the common law doctrine of lis pendens, one who purchases from a party to a pending suit a part or the whole of the subject matter involved in the litigation takes it subject to the final disposition of the cause, and is bound by the decree that may be entered against the party from whom he derived title. (p. 148).

2. Same Relation Back to Service of Process.

Where process in the suit has been issued and regularly served, and a bill has been filed disclosing the nature and purpose of the suit and its relation to the property involved with sufficient certainty to put an intending purchaser upon inquiry as to whether it is actually involved in the suit, the Us pendens dates at least from the filing of the bill. (p. 149).

3. Same Statutory Provisions.

Statutes requiring recordation of formal notice of the pendency of a suit, before a pendente lite purchaser for valuable consideration without notice can be bound by the decree rendered therein, do not themselves create the law of lis pendens in the particular jurisdictions in which they are operative, but rather may be regarded as imposing limitations upon the common law otherwise existing upon the subject. Actions or proceedings of a class not embraced within the terms of the statute remain subject to the common law rule regarding lis pendens. (p. 149).

4. SAME Recordation of Formal Notice.

Section 13, ch. 139, Code, limiting the scope of the common law rule of lis pendens in this state, requires recordation of formal notice of the pendency of the suit only where the proceeding is one to subject real estate to the payment of any debt or liability, and where no previous lien shall have been acquired thereon in some one or more of the methods prescribed by law. In the absence of either or both of these requirements the statute does not apply, and the common law rule, requiring no formal notice, governs. (p. 150).

5. Same Application of Statute Requiring Formal Notice "Pre-vious Lien".

In a suit to enforce a prior unrecorded judgment against real estate owned by the judgment debtor, but later conveyed by him, such judgment constitutes a "previous lien" against the real estate within the meaning of section 13, ch. 139, Code, thereby rendering inapplicable the provisions of that statute. (p. 152).

6. Same Rights of Bona Fide Purchasers Necessity of Record-ing Judgment.

A pendente lite purchaser of the property involved in such suit, therefore, is subject to the common law rule of lis pendens, and bound by the decree entered in the cause, and is not protected by the provisions of section 6, ch. 139, Code, requiring a judgment for money to be recorded before it can be binding as a lien on real estate against a purchaser for value without notice. (p. 152).

Appeal from Circuit Court, Cabell County.

Suit by Belle Rardin against It. B. Rardin and others in which L. A. Brewer by petition became a party defendant. Decree for plaintiff, and defendant L. A. Brewer appeals.

Affirmed.

Meek &Renshow, for appellant.

W. K. Cowden, for appellee.

Lynch, Judge:

In a suit brought for the purpose the plaintiff on the "first day of November, 1910, obtained a divorce from her husband, Robert B. Rardin, from bed and board, and an allowance of two dollars per week as alimony; and on the 17th day of October, 1912, a divorce a vincula matrimonii, and also a decree requiring her husband to pay her $184, that being the aggregate of the weekly payments first decreed but no part of which he had theretofore paid, and the costs of the suit. The last decree she obtained in the manner authorized by section 13, ch. 64, Code. On or about August 29, 1912, R. B. Rardin inherited from his mother, Sarah E. Rardin, an undivided one-fourth interest in a lot situated in the city of Huntington, which interest he conveyed to his brother, Will T. Rardin, October 26, 1912, or nine days after his wife obtained the decree of absolute divorce last referred to. The plaintiff instituted this suit February 27, 1913, process being served the day following, for the purpose of enforcing against the property of her husband the judgment rendered against him in the decree of October 17, 1912, the bill alleging that the conveyance made by him to his brother was fraudulent and without consideration. It is this deed that the decree complained of canceled and held for naught, so far as her debt and demand is concerned.

As originally instituted, the only parties defendant to the suit were R. B. Rardin and W. T. Rardin and the latter's wife. Later, however, the appellant, L. A. Brewer, became a party defendant by petition filed June 13, 1917, in which he set up a purchase by him from W. T. Rardin and others, the heirs at law of Sarah E. Rardin, of all their interests in the Huntington lot owned by the latter at her death, including the undivided one-fourth interest conveyed by R. B. Rardin to his brother, pursuant to which he alleges he paid to his grantors the entire consideration agreed upon between them, and they conveyed to him the lot July 1, 1913, four months after the institution of this suit. In his petition Brewer claimed to be a purchaser for value without notice of the pendency of this suit and of the decrees entered in the divorce proceedings requiring the defendant therein to pay to plaintiff the money therein decreed to her; and that he was not aware when he purchased the lot and obtained a deed therefor that plaintiff had any claim against R. B. Rar-din's interest therein or right to subject it to sale to satisfy such claim; and further that at that time he had no notice or knowledge of any fraud committed or intended by R. B. Rardin or W. T. Rardin in the execution and procurement of the deed of October 26, 1912; and that at the time of such purchase and the payment of the consideration therefor and the procurement of the deed of July 1, 1913, plaintiff and no one for her had caused the decree in the divorce suit or notice of the pendency of this suit to be docketed or filed in the office of the clerk of the county court of Cabell County, as required by sections 4, 6 and 13, ch. 139, Code; that pursuant to such purchase and conveyance he entered upon the lot, took and since has retained possession of it, and made valuable and permanent improvements thereon; wherefore and by reason thereof and all of which he challenges the legal right of the plaintiff to enforce the decree against said lot or any part of it, and asserts that his right thereto is superior and paramount to any right claimed by her against the same. But the decree complained of accorded to plaintiff a judgment of $284.62 upon the former money decree and the costs of the suit, dismissed the petition of appellant, set aside the deed of October 26, 1912, from R. B. Rardin to W. T. Rardin, and directed the sale of the one-fourth interest to satisfy the judgment in case of default in the payment thereof.

For the purposes of this discussion the allegations of appellant's petition will be taken as true, for there is no dispute concerning them, thus presenting the single question whether one who purchases real estate involved in a pending suit brought to charge it with the amount of a decree theretofore rendered in a former suit, but not recorded, takes it subject to the final disposition thereof in such pending suit.

The common law doctrine of lis pendens is a rule of ancient origin. According to its terms, one who purchases from a party to a pending suit a part or the whole of the subject matter involved in the litigation takes it subject to the final disposition of the cause and is bound by the decree that may be entered against the party from whom he derived title. The litigating parties need take no notice of the title so acquired, nor is it necessary to make such purchaser a party. The basis for the rule, which frequently works hardship upon innocent purchasers for value without notice, rests upon considerations of public policy, the ground being that it is necessary to the administration of justice that the decision of the court in a suit relating to specific property should be binding, not only on the litigant parties, but on those who derive title from them pendente lite, whether with notice of the suit or not. Otherwise all such suits might be rendered abortive by successive alienations of the property involved therein. At the end of one suit another would have to be commenced, and after that another, if the property should again be aliened; so that it would be almost impossible for a plaintiff ever to enforce his rights by resort to legal proceedings. Newman v. Chapman, 2 Rand. (Va.) 93; Wilfong v. Johnson, 41 W. Va. 283; Wingfield v. Neat, 60 W. Va. 106; 17 R. C. L. 1012. The doctrine of lis pendens, however, applies only where, as here, the legal proceeding relates directly to the thing or property in question, and has no application to actions to recover personal judgments. White v. Perry, 14 W. Va. 66.

Where process in the suit has been issued and regularly served, and a bill has been filed disclosing the nature and purpose of the suit and its relation to the property involved with sufficient certainty to put an intending purchaser upon inquiry as to whether it is actually involved in the suit, the lis pendens dates at least from the filing of the bill. Bennett, Lis Pendens, pp. 95-97; 17 R. C. L. p. 1033; 25 Cyc. 1463. There is authority in this state holding that in such a case the lis pendens relates back to the date of the service of process, where that antedates the filing of the bill (Newman v. Chapman, supra; Harmon v. Byrams Adm'r, 11 W. Va. 511; Stone v. Tyree, 30 W. Va. 687; O'Connor v. O'Connor, 45 W. Va. 354), and some intimating that perhaps it should date from the issuance of the writ (United States...