Whittaker v. Greenwood

• Decision Date: 17 June 1898
• Docket Number: 937
• Court: Utah Supreme Court
• Parties: JOHN WHITTAKER, APPELLANT v. JOSHUA GREENWOOD, BLACK, ET AL., RESPONDENTS

53 P. 736

17 Utah 33

JOHN WHITTAKER, APPELLANT v. JOSHUA GREENWOOD, BLACK, ET AL., RESPONDENTS

No. 937

Supreme Court of Utah

June 17, 1898

Appeal from district court, Fifth district; E. v. Higgins, Judge.

Suit by James Whittaker against Joshua Greenwood, Caroline Black, and Burnham, Hanna, Munger & Co., a corporation, to quiet title. There was a decree for defendants, and plaintiff appeals.

Affirmed.

George Westerfield, for appellant:

If no lis pendens be filed, the party acquiring an interest or claim pendente lite stands wholly unaffected by the suit. If he has any rights, which, but for the suit, he could set up he may still maintain those rights. But he would not be foreclosed by a judgment against the party to the suit from whom he obtained his assignment. 2 Devlin on Deeds, sec. 804; Richardson v. White, 18 Cal. 103; Ault v. Gassaway Id. 205; Head v. Fordyce, 17 Id. 149; Sampson v. Ohleyer, 22 Id. 201, 211.

Warner and Houtz, for respondents.

MINER J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

This action was brought to quiet title to a certain piece of land referred to in the complaint. Upon an agreed statement of facts the court found: That on the 28th day of January, 1897, plaintiff recovered judgment against the Salt Lake Equitable Co-operative Institution for the sum of $ 5,074. An execution was issued thereon, and levied upon all the interest of the defendant, the Salt Lake Equitable Co-operative Institution, in a certain piece of land in question in this suit, by virtue of which defendant's interest was sold to plaintiff on March 16, 1897, and a certificate of sale thereof delivered by the sheriff. That on April 5, 1897, the said Salt Lake Equitable Co-operative Institution conveyed to plaintiff, for a valuable consideration, all its interest in said premises. That on November 17, 1891, the defendant, Caroline Black, was owner in fee and in possession of said land and premises claimed by appellant. That on that day, to secure the payment of $ 314 she was owing to said Salt Lake Equitable Co-operative Institution, she executed to it a deed absolute in form, but understood and agreed to be, and was in fact, a mortgage upon said land. Thereafter, in the year 1892, said Caroline Black paid to said Salt Lake Equitable Co-operative Institution all said indebtedness arising under said deed, and demanded a reconveyance to her of said property, but said co-operative institution at all times since said demand and payment refused so to do. That on November 9, 1896, Caroline Black commenced a suit against said Salt Lake Co-operative Institution to obtain a decree to declare said deed a mortgage, and that the debt which the deed of said property was given to secure had been fully paid, and to cancel said mortgage. That no lis pendens was at any time filed in said cause with the county recorder. Said case was tried on March 5, 1897, and said court decreed the said deed a mortgage to secure said sum of $ 314, and that said defendant had been fully paid in the year 1892, and made its decree canceling said deed, and decreeing that said Salt Lake Equitable Co-operative Institution had no legal interest in said property, except as trustee for the use and benefit of said Caroline Black, the legal owner. Said decree was made prior to the sale upon plaintiff's execution, and remains valid, and was not appealed from. That at the time the plaintiff purchased the interest of said Salt Lake Equitable Co-operative Institution in said land at said sale under his execution, he had actual notice of the defendants' claim and interest in said premises. A decree was granted in favor of the defendants, from which the plaintiff appeals to this court.

The appellant contends that, because no notice of lis pendens was filed with the county recorder in said action of Black against Salt Lake Equitable Co-operative Institution, the appellant having acquired his interest in the property during the pendency of the suit to set aside the deed, he stands wholly unaffected by the decree of the court in said cause notwithstanding he had actual notice of said suit, and the interest of said Caroline Black in said land, at the time he purchased under his execution sale, and obtained said conveyance. We do not concur in this. Under section 3206, Comp. Laws Utah 1888 (Rev. St. § 2953), notice of lis pendens may be filed with the county recorder. The...