Shelton v. Johnson

• Decision Date: 31 December 1857
• Citation: 36 Tenn. 672
• Parties: RALPH SHELTON et al. v. BAILEY JOHNSON et al.
• Court: Tennessee Supreme Court

36 Tenn. 672

RALPH SHELTON et al.

v.BAILEY JOHNSON et al.

Supreme Court of Tennessee.

December Term, 1857.

FROM DAVIDSON.

This bill was filed in the chancery court at Nashville on the 28th of July, 1856, by Ralph C. and William Shelton, to recover certain slaves in the possession of the defendants. The slaves in controversy have been in the possession of the defendants, and those under whom they claim, as innocent purchasers for value and without notice, for more than twenty years. The complainants insist that they are not barred by the statute of limitations, because during all that time and longer there has been a litigation pending in the courts of Virginia about these slaves, to which the persons through whom the defendants claim title were originally made parties defendant. The defendants filed a demurrer to the bill, and at the November term, 1857, Chancellor Frierson gave a decree sustaining the demurrer. The complainants appealed.

E. H. Ewing and R. H. McEwen, for the complainants.

John A. McEwen, for the complainants:

The question in this case is as to the extent of the doctrine of lis pendens, or whether the pendency of a suit in the State of Virginia is notice to purchasers in Tennessee of property in litigation in the former State.

The text-writers, in discussing this question, use the broadest and most general language; and if there be anything in the use of words, then does the doctrine of lis pendens apply equally “to all the world.” For instance, Mr. Story, in the first volume of his work on Equity, sec. 406, uses this language, and it is almost identical with that of other writers and authorities: “A lis pendens, however, being only a general notice of an equity to all the world,”etc. The question is, What do the courts mean when they say that lis pendens is notice to “all the world?” Do these words apply only to persons within the jurisdiction of the court; or to all persons, in whatever jurisdiction, who have in any way connected themselves with the subject-matter of the litigation?

The doctrine is founded rather upon public policy than the justice of its application in particular cases; for it will readily be admitted that its application is sometimes attended with great hardship. Upon this ground it was established in this country in the early cases of Murray v. Ballew and Murray v. Finster, 1 and 2 Johns. Ch., and in Pitcher v. Livingston, 4 Johns., Chancellor Kent uses this language: “I have no doubt the rule will sometimes operate with hardship upon a purchaser without actual notice; but this seems to be one of the cases in which private mischief must yield to general convenience; and most probably the necessity of such a hard application of the rule will not arise in one out of a thousand instances. On the other hand, we may be assured the rule would not have existed, and have been supported for centuries, if it had not been founded in great public utility.”

Inasmuch, therefore, as the rule does not proceed upon the idea of actual notice, it is difficult to see why its operation should be restricted to the jurisdiction of the court in which the litigation is pending. The rule of lis pendens is even higher in its nature than what in law is called “constructive notice;” for while the latter, according to the authority of Rogers v. Jones, 8 N. H., is only “a legal presumption of so high a nature as to be conclusive unless rebutted,” the former operates as an inflexible rule of public policy, and can not be rebutted at all. And it would seem, therefore, that if any difference were made at all between subjects of the home jurisdiction and foreigners, it should be in favor of the former.

Since the rule may be regarded as clearly established, to some extent or other, by an unbroken course of judicial decision, we think that the same ample interpretation should be given to it as is given to our domestic registration acts. When it is said that the registration of a paper is notice “to all the world,” the courts mean precisely what they say--that the act is “notice to all the world,” whether within or beyond the limits of the State. It is true that foreign tribunals may choose, as they have the power, to give a different effect to such registered instruments, but this does not weaken the argument in favor of a consistent and uniform construction by the domestic courts. This would seem to be particularly appropriate in this country, for the States of this Union constitute but one people, and are not, as among themselves, foreign sovereignties.

Notwithstanding the frequency with which it might be supposed that such a state of facts would exist in this country, it is singular that no case can be found presenting the precise question now before this court, and we are left to argue what ought to be decided from what has already been established. The authorities already referred to, together with the cases of Griffith v. Griffith, 1 Hoff.; Jackson v. Ketcham, 8 Johns.; Owings v. Myers, 3 Bibb, and other leading cases collected in the second volume of White & Tudor, proceed upon a substantial similarity of facts, unlike the present case in one of its main features; but they furnish the principles, it is thought, upon which this case can and should be decided for complainants.

But it is argued that, though the doctrine of lis pendens might otherwise operate in favor of complainants, they have lost its aid by delay in the prosecution of their suit in Virginia. In the nature of things, there can be no settled rule on this subject. In the case of Watson v. Wilson, 2 Dana, the court uses this language in laying down a general rule, if it can be called such, for the diligence proper to be shown by a plaintiff in the prosecution of his suit: “We deem it strictly proper that he should be held to something like reasonable diligence in the prosecution of his suit, to entitle himself to the protection of the rule.” The same court, in deciding that cause, cites “a case decided by Lord Clarendon,” and approved by Lord Nottingham, in which “the bill was filed in 1640, abated by a death in 1648, the purchase made in 1661, and the bill of revivor not filed till 1662; still the purchaser was held bound.” It is true that this case has not been uniformly approved, but it has at least aided in establishing the rule that the plaintiff must be guilty of culpable negligence or laches in prosecuting his suit to enable the purchaser to escape the doctrine of lis pendens. And it is now insisted that, when all the circumstances of the case now before the court are considered, it will appear that the complainants have been guilty of no such laches.

W. F. Cooper, for the defendants.

1. The claimants insist that the pendency of the litigation in the State of Virginia prevents the bar of the statute of limitations in this State. We think the doctrine of lis pendens has no extra-territorial effect, but is merely a rule of policy, like the rule that every man is presumed to know the law, which the courts of every country apply in reference to the legal proceedings of their own courts. A man in one State is not presumed to know the laws of another State, neither is he compelled to take no tice of a lis pendens in such foreign State.

2. This point was conceded in the court below, but it was insisted that the comity existing between the different States of this Union might alter the case. I understand the rule to be otherwise well settled on principle, although the precise points seem never to have been decided. Neither by the Constitution nor by the acts of Congress in regard to the effect of the judgments of one State in another State have the judgments of one State been endowed with the force of judgments in any other; and though conclusive both in pleadings and evidence as matters of estoppel (on the parties), they possess no legal authority in themselves. 2 Am. Ld. Cas., 571; 13 Pet., 312;4 McCord, 278;7 G & J., 474.

3. It results, moreover, from the definition of notice by lis pendens, that it can not continue after a final decree, which necessarily puts an end to the pendency of the suit which constitutes the notice. 2 Ld. Cas. in Eq., part 1, p. 158; Price v. White, 1 Bailey's Eq., 234; Id., 208; Turner v. Crebell, 1 Ohio, 304.

4. The protection afforded by the institution of a suit against the intervention of the claims of purchasers...