pendency of an action has been filed, comes in as a purchaser or incumbrancer pendente lite, unless the party claiming to charge him so had actual notice of the deed or mortgage. 38 This enables one commencing such an action to be sure of joining all necessary parties by searching the records of deeds and incumbrances up to the moment of filing his complaint and notice of lis pendens.

But the judicial rule of lis pendens remains in force as to those having actual notice of the pendency of the action, although a statutory notice was required, but was not duly given.30

4. In what actions the statutory notice must be filed.] — Under the New York statute a notice of lis pendens should be filed in any "action brought to recover a judgment affecting the title to, or the possession, use, or enjoyment of real property."

7741

37 Freem, on Judg., § 201; Ayrault r. Murphy, 54 N. Y. 203 (such a mortgage held barred). Kindberg r. Freeman, 39 Hun, 466 (holding that the grantee in such a deed need not be brought in as a party). Norton t. Birge, 35 Conn. 250; Hoyt r. Jones, 31 Wisc. 389, 397, 403; McCutchen r. Miller, 31 Miss. 65, 83. Contra, Hammond v. Paxton, 58 Mich. 393 (unsound).

38 Lamont r. Cheshire, 65 N. Y. 30; Patterson v. Brown, 32 N. Y. 81; 8. P., Brown v. Goodwin, 1 Abb N. C. 452.

39 Patterson r. Brown, 32 N. Y. 81.

Whether a State statute allowing and requiring a notice of lis pendens to be filed applies in cases at law in the United States courts, so as to allow of such notice there, see Majors v. Cowell, 51 Cal. 478 (holding that such a State statute has no application in the Federal courts).

40 N. Y. Code Civ. Pro., § 1670.

41 By N. Y. Code Civ. Pro., § 3343, subd. 6, “the words 'real property' are co-extensive with lands, tenements and hereditaments."

real

In Wilmont . Meserole, 41 N. Y. Super. Ct. 274, it was held that property" is not necessarily synonymous with "real estate' as used in the Revised Statutes; but it includes all estates in land, estates for life, for years, at will, and by sufferance, as well as estates of inheritance. So laid down in holding that a lis pendens was properly filed in an action "for the purpose of procuring the avoidance and cancellation of record of an assignment of lease [for 13 years] executed by plaintiff to defendant," and hence the motion to cancel the lis pendens was properly denied.

The actions may be enumerated as follows:

Action to compel determination of a claim to real property. N. Y. Code Civ. Pro., §§ 1670, 1645 and 1646.

to establish title or recover possession, whether by establishing, reforming or cancelling a deed, will, or other written instrument, or by fastening a trust upon the property, or reaching it for creditors, or in any other way declaring or defining the existence of an alienable title or interest, provided the judgment sought would by its terms have such an effect.

Dower. N. Y. Code Civ. Pro., §§ 1670, 1619 and 1685.

Ejectment. N. Y. Code Civ. Pro., §§ 1670, 1524, 1526 and 1685. Foreclosure of mortgage upon real property. Lis pendens must be filed at least twenty days before final judgment. N. Y. Code Civ. Pro., § 1631. Foreclosure of lien. See "Lien" (below), and "Mechanic's Lien." Lien. Action to establish lien on specific real property. Mills . Bliss, 55 N. Y. 139 (vendor's lien). Sanders r. Warner, 2 Wkly. Dig. 507; Brainerd v. White, 12 Abb. N. C. 407, 48 N. Y. Super. Ct. 399 (married woman's

The demand of judgment in the complaint determines the purpose of the action,12 but if the allegations will in no way support the judgment demanded the lis pendens will be cancelled.13

An action merely to recover damages, though upon grounds that would equally serve to impeach the title to the property itself, is not within the rule."

45

46

In a case within the statute, the right to file the notice is absolute, not dependent on leave of court. In any case not within the statute a notice filed is a nullity, except that the seeing of such a notice on the files may be actual notice, in which case the purchaser would be bound, not by the statutory notice, but by inability to maintain the position of a bona fide transferee without notice.

eharge); Bachman v. Wagner, 16 N. Y. Supp. 67 (vendee's lien). . But see, also, Smadbeck v. Law, 106 App. Div. 552, 94 N. Y. Supp. 797.

Mechanic's lien. Lis pendens (if the action is in a court of record) must be filed within one year after the lien to render the lien binding for a period longer than one year. Lien Law (L. 1897, chap. 418), § 16. For liens under other special statutes, see them.

Partition of real property. N. Y. Code Civ. Pro., §§ 1670 and 1557, subd. 2. Including partition and sale for distribution of proceeds. Kunz v. Bachman, 1 Civ. Pro. Rep. 281, 61 How. Pr. 519.

Party-wall controversy. Moeller v. Walkenberg, 67 App. Div. 487, 73 N. Y. Supp. 890.

Specific performance of contract for sale of land (against vendor). N. Y. Code Civ. Pro., § 1670; Chapman v. West, 17 N. Y. 125 (holding that filing lis pendens would be available against a defendant vendor, but not against prior mortgagees who need not and should not be made parties). But compare, on last point, Metropolitan Trust Co. v. Tonawanda, etc., R. R. Co., 18 Abb. N. C. 368; Ruck t. Lange, 10 Hun, 303 (specific performance of a contract for sale of a leasehold interest in this case, lease having twenty years to run). Action upon or reference of disputed claims against decedent's estate. Statutory lien of three years is preserved by filing notice of pendency of, action. Code Civ. Pro., § 2751; Matter of Bingham, 127 N. Y. 296.

Replevin. Lis pendens cannot be filed, but the judicial doctrine of lis pendens applies, and purchasers pendente lite are bound by the judgment. President, etc., of D. & H. Co. v. Harris, 15 Wkly. Dig. 36 (holding that the complaint must be served and filed as well as the summons served, to create a lis pendens binding upon third persons). Carr v. Lewis Coal Co., 15 Mo. App. 551.

ary.

Trespass. Cannot be filed, although controversy involves a disputed boundHailey v. Ano, 42 N. Y. St. Rep. 49, aff'd, 136 N. Y. 569. Nor in an action to enjoin a continuing trespass by defendant's building. McManus r. Weinstein, 108 App. Div. 301, 95 N. Y. Supp. 724.

42 St. Regis Paper Co. r. Santa Clara Co., 62 App. Div. 538, 71 N. Y. Supp. 82. 43 Brox v. Riker, 56 App. Div. 388, 67 N. Y. Supp. 772.

44 Zoeller r. Riley, 100 N. Y. 102, 109. In this case (the property being personal) the decision was put in part on the ground that the complaint nad not been filed at the time of the purchase; but either ground is sufficient to sustain the conclusion.

45 Mills v. Bliss, 55 N. Y. 139; Beaman v. Todd, 124 N. Y. 116; Shandley v. Levine, 44 Misc. 23, 89 N. Y. Supp. 717.

46 Dictum in Mills . Bliss, suprc.

5. Defendant's notice.] A defendant who by his answer or by a cross-bill demands affirmative relief affecting real property, has the same right as a plaintiff to file such a notice. This is expressly provided by statute in some States, and where it is not, the court may properly recognize the right under the modern practice, for an answer claiming affirmative relief in a proper case is equivalent, on general principles, to a cross-action. 48

6. What classes of claimants affected.] - The New York statute is expressed as making the notice filed constructive notice" to a purchaser or incumbrancer of the property affected thereby from or against a defendant with respect to whom the notice is directed to be indexed," and it is declared that "a person whose conveyance or incumbrance is subsequently executed, or subsequently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action."

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One purchasing, during suit, a paramount title from a person not a party is not bound,51 and it is also held that a bona fide purchaser who is not affected by a lis pendens can convey and give the same title to one who has notice.52

47 N. Y. Code Civ. Pro., § 1673. Applied in Niebuhr . Schreyer, 10 Civ. Pro. Rep. 72.

A similar provision exists in Dakota (Code, § 101), Montana (R. S., 1879, p. 52, § 70), and North Carolina (Clark's Code Civ. Pro., § 229).

The statutes of Massachusetts, Virginia, and West Virginia require the notice to be filed without saying by which party.

48 2 Pomeroy's Eq. Jur., § 634.

Moreover, independent of statute, the lis pendens is notice of all that is involved in a cross-bill which is inseparable from the original bill. The S. C. Hall Lumber Co. v. Gustin, 54 Mich. 624.

In Brundago r. Biggs, 25 Ohio St. 652, it was held that a purchaser from the plaintiff and his wife (she having been brought in as a party by the crossbill of the defendant) was charged with notice of the pendency of the cross-bill. 49 N. Y. Code Civ. Pro., § 1671.

50 Id. Brooks r. Davey, 109 N. Y. 495 (mortgage given by a defendant after lis pendens filed in an action for partition of no effect against purchasers at partition sale). S. P., Shannon r. Pertz, 1 App. Div. 331, 37 N. Y. Supp. 304. One whose conveyance or incumbrance is of record prior to suit brought, is not affected, unless made a party. Kursheedt r. Un. Dime Sav. Inst., 118 N. Y. 358.

It has been held upon an extended review of the authorities, that, in the absence of a statute, one who contracted to purchase before the suit was commenced is not bound by reason of taking a conveyance in fulfilment of the contract after suit brought, especially if he paid the consideration before suit brought. Walker v. Goldsmith (Oreg., 1886), 12 Pac. Rep. 537.

51 Jaycox r. Smith, 17 App. Div. 146, 45 N. Y. Supp. 299.

52 Snowden t. Tyler (Nebr. 1887), 31 N. W. Rep. 661, and cases cited.

A creditor by judgment is an incumbrancer within this rule.53 But a grantee in possession at time of commencement of action, under an unrecorded deed, is not.54

If any mode of acquiring an interest, lien or other right from or under a party be not within the equity of the statute, it remains governed by the judicial rule, and this is a reason, in case of doubt, for prompt service of summons and complaint on all the defendants having any interest which could pass to another.

7. persons claiming under plaintiff.] --A transfer by plaintiff pending his action, though more rare than a transfer by defendant, is equally within the judicial rule of lis pendens.55 But

53 Fuller v. Scribner, 76 N. Y. 190, and explaining Rodgers v. Bonner, 45 N. Y. 379, apparently to the contrary, as turning on the fact not appearing in the report, that the judgment there was docketed before the notice of lis pendens was filed.

54 Welsh r. Schoen, 59 Hun, 356, 13 N. Y. Supp. 71.

55 Moss v. N. Y. El. R. Co., 27 Abb. N. C. 318 (grantee of plaintiff bound by judgment as though parties to the action, the pendency of the action being in the nature of a lis pendens). Garth v. Ward, 2 Atk. 174 (holding that on a bill to establish a will, since the heir-at-law defendant is at liberty to inpeach the will, the rule of lis pendens applies in favor of the defendant, and against a purchaser from the plaintiff. Also dictum that on a bill to redeem from a mortgage, if there was a final decree against the mortgagor-plaintiff, a purchase from him pendente lite would be barred).

Baird v. Corwin, 17 Penn. St. (Harris) 462. In this case (ejectment) it appeared that after the institution of an action of partition the plaintiff conveyed his interest in the land to persons who were not parties to the proceedings. Held, that such conveyance imposed no obligation on the parties to the action to notify the purchasers of the subsequent proceedings in the action of partition. Lis pendens was of itself notice. The sale of the land under the proceedings in partition was a conclusive defense to the claim of the grantees of the plaintiffs pendente lite, who now brought the ejectment. Per curiam: "The purchase by the plaintiffs in this action of the interest claimed by Parkes Baird pending the writ of partition in which the latter was plaintiff, did not create any obligation to serve them with notice of the subsequent proceedings. Lis pendens is of itself notice, and the principle is applicable to writs of partition as well as to other actions. The sale of the land under the decree in the proceedings in partition is a conclusive defense to the claim founded upon the title derived from Parkes Baird pendente lite."

*

In Hurd v. Case, 32 Ill. 45, the holder of a mortgage upon land, containing a power of sale, filed his bill to foreclose and made a junior mo gagee a party defendant. Pending the suit, the prior mortgagee sold the premises under the said power of sale to a third person. The junior mortgagee answered the bill and filed his cross-bill, making such purchaser a defendant, and prayed that said sale be set aside, that he be allowed to redeem, and that the prior mortgage be assigned to him upon paying amount due. Held (reversing a decree which had sustained a demurrer to the cross-bill), that he was entitled to the relief prayed for. Per curiam: “The pendency of that suit was notice to Otis the purchaser, so as to subordinate the rights he acquired by the purchase to any decree which might be made in that suit." By his purchase pendente lite he became an indispensable party to the cross-bill in view of the relief which was sought. If this necessity does not often exist find it may exist, when necessarily the practice must be admitted.”

66

We

when the lis pendens statutes were adopted this class of cases was not noticed, and provision was made only against transfers, etc., by a defendant, by allowing a notice to be filed by a plaintiff, and by a defendant who is in effect a plaintiff in a counter-claim. The result is, that as the lis pendens statute does not create the lien, but restricts it merely, providing that no purchasers, etc., under a defendant shall be bound except he become such by record after the time of due filing, the omission of the case of a purchaser from the plaintiff leaves such a purchaser under the judicial rule, and he is bound by the mere pendency of the suit.

58

8. Description of premises, etc.]—The description should he such as is usual in a well-drawn deed. A general reference to all the real property of the defendant in the county, is futile. The designation must be sufficiently specific to guide third persons. It is not vitiated by the addition of further and erroneous particulars which do not mislead as to property adequately described. Surplusage, though erroneous, may be rejected where that which remains is a substantial compliance with the statute. scription of property not to be effected by the action may be struck

59

A de

56 This has nowhere been squarely held, but it seems to clearly result. There is a dictum to the contrary in the opinion of Judge Rhodes, Corwin v. Bensley, 43 Cal. 253, 260, and note, but he does not notice the fact that the statute is not an affimative, but a negative one. A similar impression contrary to the statement in the text is expressed in 24 Alb. L. J. 539.

See, further, the following cases: Pending suit as to title to land, one of the defendants delivered to another defendant a deed executed by the plaintiff, conveying such and (in suit) to such defendant. Three days afterwards decree was entered declaring that the plaintiff was then the owner of the land in suit. Held, that all parties to the decree were bound by it, and that the rights of the party holding the deed were cut off by the decree. McGregor #. McGregor, 21 Iowa, 441.

Drennen's Adm. v. Walker, 21 Ark. 539, a purchase pendente lite by defendant of the interest of some of plaintiffs in the property in dispute will not be disturbed by this court where there is no appeal by such complainants from the decree.

In Smith v. Brittenham, 109 Ill. 540, 549, it is held that where, after bring ing suit, a plaintiff sells all his interest in the real estate in suit, no decree can be rendered until his grantee is made a party to the suit.

57 Jaffray . Brown, 17 Hun, 575.

58 Miller r. Sherry, 2 Wall. 237.

59 Watson v. Wilcox, 39 Wis. 643.

60 Drew v. Dequindre, 2 Dougl. (Mich.) 93.

61 Fitzgerald . Blake, 42 Barb. 513, 28 How. Pr. 110; and see Rodgers . Kavanaugh, 24 Ill. 583; Nelson v. Wade, 21 Iowa, 49; Sanger v. Craigue, 10 Vt. 555.

It may perhaps sometimes serve a useful purpose to include notice that fixtures or movables connected with the realty are also claimed. See Gardner f Peckham, 13 R. I. 102, 21 Am. Law Reg. (N. S.) 264, where the removal of