Travis v. Topeka Supply Co.

• Citation: 42 Kan. 625,22 P. 991
• Court: United States State Supreme Court of Kansas
• Decision Date: 09 November 1889
• Parties: TRAVIS, MURRAY & COMPANY v. THE TOPEKA SUPPLY COMPANY et al

22 P. 991

42 Kan. 625

TRAVIS, MURRAY & COMPANY v. THE TOPEKA SUPPLY COMPANY et al

Supreme Court of Kansas

November 9, 1889

Decided July, 1889

Error from Shawnee District Court.

THE opinion, filed at the session of the court in November, 1889 contains a sufficient statement of the nature of the action and the material facts.

Judgment affirmed.

Rossington Smith & Dallas, for plaintiffs in error.

Overmyer & Safford, for defendant in error Aaron Rowe; J. T. Ward, for defendant in error Fannie O. Miller.

SIMPSON C. HORTON, C. J., and VALENTINE, J., concurring. JOHNSTON, J.

OPINION

SIMPSON, C.:

In the year 1883, one George F. Miller was doing business in the city of Topeka, in the shadows of a corporation that was called "The Topeka Supply Company." This corporation was organized in 1880, with no stockholders, but with the usual quantity of titled officials; a few hundred dollars as a basis for business, contributed by Miller, who was sole manager, and the only live person connected with it. In May, 1883, the Supply Company being insolvent, Miller sold the stock on hand, consisting of plumbing goods and fixtures, to one Louis, for a consideration of $ 1,800, part of which was paid in cash, and the residue in town lots. Two of these lots, being the ones in controversy, were conveyed by Louis, at the direction of Miller, to Fannie O. Miller, his wife. This conveyance was made to Mrs. Miller on the 24th day of May, 1883, but was not recorded until the 14th day of August, 1883. On the 3d day of September, 1883, these plaintiffs in error commenced an action in debt against the Topeka Supply Company, and caused an attachment to be issued and levied on the lots conveyed by Louis to Mrs. Miller. This attachment was not dissolved, and in the following February they obtained a judgment against the Supply Company for $ 887.50, with an order that the lots seized by the attachment process be sold to satisfy the judgment. After the lots were attached, on the 22d day of October, 1883, Mrs. Miller sold and conveyed them to one Burns, and on the 23d of September, 1884, Burns conveyed them to the defendant in error, Aaron Rowe.

This action was commenced on the 16th day of March, 1886, to subject these lots to the payment of the judgment. Issues were framed and the cause tried by a jury at the March term, 1887, and a verdict was returned against the Supply Company and Fannie O. Miller. The special findings are that the Topeka Supply Company was not indebted to Fannie O. Miller at the time the lots were conveyed to her; that Burns, the grantee of Mrs. Miller, did not have any knowledge of any fraud on the part of Mrs. Miller or anyone else in receiving the deed of the lots from Louis, nor any actual knowledge of the levy of the attachment upon said lots; that the defendant Rowe, at the time he purchased the lots in controversy, had no knowledge or notice of fraud in making the deed to Mrs. Miller by Louis, nor any knowledge of the levy of the attachment. At the trial the court instructed the jury as follows:

"5. I further instruct you that the pendency of the suit of plaintiffs against the Topeka Supply Company, and the levy of the attachment in that suit upon the premises in question, is not of itself constructive notice to the purchaser of said premises from Fannie O. Miller subsequent to the levy of said attachment, of the rights and claims of the said plaintiffs; and if defendant Aaron Rowe, at the time he claims to have purchased said premises, had no other notice of the alleged rights or claims of said plaintiffs, he is not presumed to have had any notice by reason of the pendency of said suit, and the issue and levy of said attachment."

These special findings and this instruction present the naked question as to whether the purchaser of the lots from Mrs. Miller was bound by a constructive notice of the attachment, or because of lis pendens. Counsel for plaintiffs in error, by a vigorous and extended brief, maintain these propositions, and insist on a reversal for the misdirection to the jury.

I. It is clear to us that when Burns purchased from Mrs. Miller, he was not bound because of lis pendens. One very conclusive reason for this is, that Mrs. Miller was not a party to the original action of these plaintiffs in error against the Topeka Supply Company.

"If, although a suit is pending, the person holding the title to the property has not been made a party to the suit, so that there is a lis pendens against him, a purchaser from the person so holding the title, without actual notice of the claims of the plaintiff in the action, will not be bound by the determination of the suit."

And again it is said:

"To affect a purchaser who comes in pendente lite, under the holder of the legal title, with the constructive notice of the equity claimed against it, such holder of the legal title must have been impleaded at the time of the purchase." (Bennett, Lis Pendens, § 97, and authorities cited.)

It would be a great hardship, and that public policy upon which the rule of lis pendens is founded would not justify a requirement that a purchaser make investigation outside of the parties to the record, in pending suits, to ascertain the possible rights of persons to the property, other than the parties to the litigation, or that the purchaser should deal with the property at the peril of subsequently having the title of such other persons drawn into the pending litigation. These three things must concur to constitute a litigated condition of the property: First, the property must be of a character to be subject to the rule of lis pendens. Second, the court must acquire jurisdiction both of the person and the property. Third, the property must be sufficiently described in the pleadings. In the case of these plaintiffs in error against the Topeka Supply Company, the court did not acquire jurisdiction of the person who held the legal title, to wit, Fannie O. Miller. No better illustration of these rules can be found than in the record we are considering. In the first case referred to, in which the attachment was issued and levied, the holder of the legal title from whom the purchase was made was not made a party to the suit. In the case mentioned in 1886, the person in whom the legal title vested at the time of the commencement of the first suit, as well as her grantee, are made parties, and the petition contains a full and complete description of the litigated property, "the res litigiosa." In the first case a purchaser from the holder of the legal title is not bound by lis pendens. In this case a purchaser from her or her grantee would be bound, because she is a party, because the court has acquired jurisdiction over her person and the property, and because the res litigiosa is accurately described in the petition.

It is fairly said by counsel for the plaintiffs in error that, whatever may be the general rule, this instruction is squarely in the face of § 81 of the code of civil procedure, which provides:

"When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff's title," etc.

We had occasion to say in Smith v. Kimball, 36 Kan. 474 that this section was to be construed on the theory that it was designed to embody the doctrine of lis pendens, which has long formed a part of the equity jurisprudence of this country, and to be viewed in the light of the authorities generally on that subject; so that the reasons already stated are sufficient to dispose of this contention and resolve it against the plaintiffs in error. But we can very safely go farther than this, and say that in the original action of the plaintiffs in error against the Topeka Supply Company there is no claim of title made by these plaintiffs in error to the town lots in controversy. That action was on an ordinary debt; it asked for a personal judgment for money only, against the Topeka Supply Company. It was an action to recover money only. There was no hint or suggestion in the record that the title or condition of real estate was sought to be litigated; the subject-matter of the action was the enforcement of personal indebtedness. In the very nature of things it could not be the subject of lis pendens against a purchaser from the legal owner of property attached to secure the moneyed demand who is not a party to the suit. It is probably the law, that although the contention is merely in regard to a moneyed demand,...