Turner v. Babb

• Decision Date: 31 May 1875
• Citation: 60 Mo. 342
• Parties: SMITH TURNER AND LUTHER T. COLLIER, Respondents, v. JOSEPH BABB AND GEORGE W. DORMAN, Appellants.
• Court: Missouri Supreme Court

60 Mo. 342

SMITH TURNER AND LUTHER T. COLLIER, Respondents,

v.JOSEPH BABB AND GEORGE W. DORMAN, Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Livingston Circuit Court.

H. M. Pollard, for Appellants.

I. A lis pendens is not even a constructive notice of any other points than those which are in dispute between the parties to the action. (See Ray vs. Roe, 2 Blackf., 258; 3 Ark., 392; Newl. Cont., 506, 507; also Murray vs. Ballon, 1 Johns. Ch., 571.)

Turner & Collier, for Respondents.

I. Appellants took their deed from McHolland with full notice, and are barred by the record and proceedings in the cause of Conger vs. McHolland. (See Wagn. Stat., ch. 88, § 1; Jones vs. Talbott, 9 Mo., 121; O'Reilly vs. Nicholson, 45 Mo., 166; Murray vs. Ballon, 1 Johns. Ch., 573; Harrington vs. Slade, 22 Barb., 166; Stern vs. O'Connell, 35 N. Y., 104; Hopkins vs. McLaren, 4 Cow., 678; Murray vs. Lilburn, 2 Johns. Ch., 441; Sears vs. Hyer, 1 Page, ch. 483; French vs. Shotwell, 5 Johns. Ch., 554; 2 Washb. Real Pr., 229; Freem. Judgm., 160, et seq, and authorities there cited.

HOUGH, Judge, delivered the opinion of the court.

This was an action of ejectment brought by the plaintiffs, Turner and Collier, in the Livingston Circuit Court, on the 18th day of July, 1873, against Joseph Babb, to recover the possession of lot 5, block 22, in the town of Wheeling, county of Livingston, to which action George W. Dorman, under whom defendant, Babb, had possession, was, on motion, made a party defendant.

The petition was in the usual form, and the defendants pleaded the general issue. The cause was tried by the court without a jury.

It appears from the record, that in December, 1869, one Crayton H. Conger instituted a suit in the Common Pleas Court of Livingston county, against George Tiffany and David A. McHolland, for the purpose of vesting in said Conger the title to lot 5, block 22, in said town of Wheeling, which he alleged had been fraudulently conveyed to the defendant, McHolland, and was held by him in secret trust for the defendant, Tiffany, whose interest in the same, Conger had purchased at execution sale.

To this petition McHolland and Tiffany, on the 19th day of January, 1870, filed separate answers.

Afterwards, on the 20th day of December, 1869, said Conger instituted another suit in said Common Pleas Court, to which said McHolland and Tiffany were made parties defendant, together with one Josiah Hunt, for the purpose of vesting in said Conger, the title to lots 1 and 2, in block 9, in said town of Wheeling, which title Conger alleged, in his petition, was still in Hunt, though said Tiffany was in reality the owner of said lots, by means of a purchase made by McHolland for his benefit, and of which he was entitled to a conveyance, upon the payment of a balance, which Conger brought into court, to be paid over to said Hunt. Conger averred in his petition, that he had purchased all the right and interest of Tiffany to said lots, at execution sale. The only answer, shown by the record to have been made to this suit, was the separate answer of the defendant, McHolland, which was filed on the 24th day of January, 1870. The foregoing pleadings were read in evidence by the plaintiffs.

The following notice, shown, by the certificate of the recorder of deeds of Livingston county, to have been filed for record, on the 20th day of December, 1869, and recorded on the 27th day of December, 1869, was also read in evidence by the plaintiffs.

Crayton Conger, Plaintiff,

)

vs.

)

In the Common Pleas

George Tiffany and

)

Court of Livingston

David A. McHolland, Defendants.

)

County, Mo.

)

Jan. Term, 1869 (1870).

To whom it may concern: Take notice that the above entitled cause is pending in the Common Pleas Court of Livingston county, Missouri, wherein Crayton H. Conger is plaintiff and George Tiffany and David A. McHolland are defendants, and said cause is returnable to the January term, A. D., 1870, of said court, and the following described real estate, situate in said county of Livingston, and State of Missouri, to-wit: Lot five (5), in block twenty-two (22), in the town of Wheeling, is liable to be affected thereby.

Signed

Crayton H. Conger, Plaintiff .

By Att'y, L. T. Collier.

These two suits by Conger, were transferred to the Livingston Circuit, and on the 8th day of June, 1872, the same having been compromised and settled, a decree was made in pursuance of said settlement, vesting the title to lots 1 and 2, in block 9, in the plaintiff, Conger, and the following decree was made as to lot 5. “It is therefore considered, ordered and adjudged, that the title of plaintiff to lot No. 5, in block 22, in the town of Wheeling, Livingston county, Missouri, be vested in defendant, David A. McHolland, pursuant to said agreement, and that the plaintiff herein have and recover vs. said Holland, out of said property, the sum of one hundred dollars, the amount to be paid to Luther T. Collier and Smith Turner, his attorneys, and the costs of this suit, together with the costs in the other suit pending in this court in favor of said plaintiff and against George Tiffany and David A. McHolland, to be levied by special execution against said property, in default of the payment of the same, at the expiration of 90 days from this date, and pursuant to said agreement.

The foregoing agreement and decree were read in evidence.

Plaintiffs then introduced a deed to them, for the lot in question, executed by the sheriff of Livingston county, duly acknowledged by him on the 11th day of June, 1873, which deed recited a sale of said lot to plaintiffs, regularly made on the 7th day of February, 1873, under a special execution, dated the 20th day of December, 1872, and issued under the foregoing decree. Plaintiffs introduced testimony as to the value of the rents and profits and rested.

Defendants then offered in evidence a warranty deed, to the defendant, Dorman, for said lot 5, from D. A. McHolland and wife bearing date the 1st day of February, 1870, which was acknowledged on the same day, and filed for record on the 2nd day of February, 1870, to the admission of which plaintiffs objected, for the reason that it bore date subsequent to the commencement of the suit of Conger vs. Tiffany and McHolland, and after the notice of lis pendens was filed. The court rejected the testimony and the defendants excepted. This was all the testimony introduced or offered, and the court, at the instance of the plaintiffs, declared the law as follows: “If the court finds from the evidence, that McHolland made the deed to Dorman after the commencement of the suit of Conger vs. McHolland, for title to the property in question, and after due notice had been given and filed for record, in the recorder's office, of Livingston county, in which the property is situate, of the pendency of said suit for the recovery of the title thereto, then the said deed from McHolland to Dorman was taken by said Dorman with notice, and does not operate to pass the title to said property as against the plaintiff, holding said property under and by virtue of a sheriff's deed, founded upon a judgment rendered in said case of Conger vs. McHolland.”

No instructions were asked by the defendants. There was a finding and judgment for the plaintiffs, and the defendants have brought the case here by appeal.

The instruction given for the plaintiffs was wholly inapplicable to the case made. The deed to which it refers was not in evidence. The finding of the court, however, was right, on the testimony admitted, and must be sustained, unless there was error in excluding the deed from McHolland to Dorman, offered in evidence by the defendants.

There can be no question as to the service of process in this case, or as to the time of the appearance of the defendant, McHolland, to the suit of Conger. The notice read in evidence, charged the appellant with notice of the litigation affecting the title to the lot, from the date it was filed for record, regardless of the service of the process, or the appearance of McHolland in that suit, prior to the conveyance by him to appellant. The language of the statute as to the parties to be affected by such notices (Gen. Stat., 1865, p. 770) is “ purchasers of incumbrances;” but that the legislature intended the language to be “ purchasers or incumbrancers” is manifest from the language actually used in the enrolled bill, which is “ purchasers or encumbrances.” The appellant, therefore, by buying the property after the date of the filing of the notice, acquired only the rights of a purchaser pendente lite.

It is unnecessary to cite authorities to sustain the general doctrine, that a purchaser pendente lite, of property actually in litigation, though for a valuable consideration, and without notice express, or implied, in point of fact, will be bound by the decree affecting that property, which may be made against the person from whom he derives title.

But it is contended, by the counsel for the appellant, that such purchaser is chargeable with notice only of the matters shown by the pleadings to be in dispute between the parties, and is not bound by any possible decree that may be made affecting the property in litigation; and that as the suit of Conger was for the purpose of divesting the defendants of all title to lot 5 and vesting it in himself, the moment the title was vested by the decree in the...