a lis in the same manner as if he had such notice; and he will accordingly be bound by the judgment or decree in the suit."" $341. Chancellor Kent. So, in the leading American case of Murray v. Ballou, Chancellor KENT declares that " pendens duly prosecuted, and not collusive, is notice to a purchaser, so as to affect and bind his interest by the decree." $342. Rule of Equity Jurisprudence. This doctrine has been generally accepted in courts of equity in this country and Great Britain, and the rule as declared above, except where abrogated or modified by statute, continues to form a part of the equity jurisprudence of both countries. It has been held that this is purely a doctrine of equity, recognized and enforced in courts of equity alone, and cannot be rendered available in proceedings at law.3 $343. Applies to Action of Ejectment.-But it has been repeatedly decided, that where an action of ejectment is instituted against the tenant in possession, one coming into possession of the subject of litigation, by assigninent or otherwise, pendente lite, will be bound by the judgment, although he be not made a party defendant, and may be ejected under the judgment against his assignor. Such assignee of the possession would be liable for mesne profits, and could not set up title in himself in bar to the action therefor.5 $344. The Doctrine Indispensable. The harshness of this rule as applied to cases of equitable cognizance, though frequently acknowledged by learned chancellors, has not served to deter them from adhering to it as a safe doctrine, and one which seemed indispensable to the enforcement of their decrees. To 1 Story's Eq. Jur., Sec. 405. * 1 Johns Ch., 566; see also Edwards v. Banksmith, 35 Ga., 213; Harris v. Carter, 3 Stew. (S. C.), 233; Murray v. Finster, 2 Johns. Ch., 155; Heatley v. Finster, Id., 158; Green v. Slayter, 4 Johns. Ch., 38. 3 King v. Bill, 28 Conn., 593. *Howard v. Kennedy, 4 Ala., 592; Jackson v. Tuttle, 9 Cow., 233; Jones v. Chiles, 2 Dana, 25; Smith v. Trabue, 1 McLean, 87; Wallen v. Huff, 3 Sneed, 82; Hickman v. Dale, 7 Yerg., 149. 'Jackson v. Stone, 13 Johns., 447; Bradley v. McDaniel, 3 Jones, 128: Fogarty v. Sparks, 22 Cal., 142. hold that purchasers of property, the title to which was in litigation at the time of the transfer, should be unaffected by the decree unless brought in as parties to the suit after the purchase, would be to place it within the power of a defendant holding under a colorable title, to prolong the litigation indefinitely. The case of Martin v. Stiles' fairly illustrates the extent to which the courts have gone in supporting the principle involved in Lord BACON's rule. There the bill was filed and process served in the year 1640, and the case abated by the death of one of the parties, about eight years thereafter; the purchase was made about three years after the abatement, and the case was revived about eleven years subsequent to the purchase, and the decree one year thereafter; being twentythree years subsequent to the institution of the suit, fifteen years subsequent to the abatement, and twelve years after the purchase. It was nevertheless held that the apparent laches in the prosecution of the suit, was excused by the wars prevalent at the time, and that the purchase while the suit was in abeyance, was made pendente lite, and that the purchaser was consequently bound by the decree. $345. Lord Hardwicke. In Garth v. Ward,2 Lord Hardwicke, in pronouncing the opinion says: "A decree dismissing a bill of redemption, would operate equally in favor of the mortgagee against any person to whom the mortgagors should, during the pendency of that suit, convey, as against himself. * So in the case of a mortgagor who comes here for redemption, if, during such suit, he should assign the equity of redemption, and, in the final hearing of the cause, there should be a decree against the mortgagor, will not the assignee of the equity of redemption be bound by this decree?" * * * § 346. Effect of Revivor. So, also, where a suit was instituted to foreclose a mortgage and during its pendency the mortgagor executed a second mortgage upon the same premises, 1 Cited in Bishop of Winchester v. Paine, 11 Ves. Ch., 194; S. C., 1 Ch. Ca., 150. 22 Atk., 174-5. and died prior to the decree, on reviving the suit against his personal representatives, it was held unnecessary to make parties of mortgagees or purchasers who became such after the institution of the suit.1 $347. Consideration no Protection to Purchaser. Where the doctrine is in force independent of any statutory provision, the purchaser pendente lite will not be protected because he paid a valuable consideration, and purchased without actual notice of the pendency of the suit; but the subject of litigation will be affected by the decree to the same extent as though the purchase were made with full knowledge of the pendency of the action2 $348. Commencement of the Suit. In determining whether a purchase of property is made during the pendency of a suit affecting the title thereof, an important matter for consideration is what amounts to the commencement of a suit. It is necessary to decide this in order to be able to determine whether at the date of the purchase, there was a lis pendens within the meaning of the equitable rule. For the purpose of ascertaining whether the suit is brought within the period of statutory limitation and perhaps for some other purposes, the suit has been held commenced from the date of the issuance of the original process, and as between the parties to the suit, or their personal representatives, from the suing out of 4 1 Bishop of Winchester v. Paine, 11 Ves. Ch., 194; Montgomery v. Birge, 31 Ark., 491. Norton v. Birge, 35 Conn., 250; King v. Bill, 28 Id., 598; Ray v. Roe, 2 Blackf, 258; Green . White, 7 Blackf., 242; Ferrier v. Buzick, 6 Ia., 258. 'Sorrel v. Carpenter, 2 P. Wms., 482; Worsley v. Earl of Scarboro, 3 Atk., 392; Walker v. Smallwood, Amb., 676, Lowther v. Carlton, 2 Atk., 242; Self v. Maddox, 1 Vern., 459; Firch v. Newham, 2 Id., 216; Wickliffe, v. Breckenridge, 1 Bush. (Ky.), 427; Metcalf v. Pulvertoft, 2 Ves. & Beam., 200. 'Pindello. Maydwell, 7 B. Monr., 314; Sharp v. Maguire, 19 Cal., 577; State Bank v. Cason, 10 Ark., 479; State Bank v. Brown, 12 Ark., 94; Shaw v. Padley, 64 Mo., 519. process, whether the same be issued and served or not. But in cases generally, and especially in those where the question as to the validity of a purchase depends upon whether the property purchased is the subject of litigation at the time, the suit will not be regarded as pending until the service of original process, whether the same is served personally upon the defendant, or by any method prescribed by statute as a substitute for personal service. And when for the service of summons, or subpoena in chancery there is substituted the publication of a notice as ordered by the court, such publication should be complete, before the suit could be regarded as pending so as to affect with notice purchasers without actual notice or knowledge of the claim adverse to his vendor. $349. Service of Process. The strictness with which the courts insist upon service of process as the commencement of the suit, may be illustrated by the case of Miller v. Kershaw.‘ This was a chancery suit, and it was held that the acceptance of service of the subpoena, as of a date prior to that upon which it was actually served, would not make such a lis pendens before the day of actual service. $350. Harshness of the Rule. Although this is peculiarly a doctrine of equitable origin, it is by no means one which is a favorite with the courts exercising chancery jurisdiction. The harshness of its operation when applied to cases where the sub 1 McLaren . Thurman, 8 Ark., 313; Maddox v. Humphries, 30 Tex., 494; Lyle. v. Bradford, 7 Mon., 111. * Clark v. Helms, 1 Root (Cenn.), 486; Dunn v. Games, 1 McLean, 321; Games v. Stiles, 14 Pet., 322; Clevinger v. Hill, 4 Bibb, 498; Chaudron v. Magee, 8 Ala., 570; Hopkins v. McLaren, 4 Cow., 667; Meux v. Anthony, 11 Ark., 411; Downer v. Garland, 21 Vt., 362; Gates v. Bushnell, 9 Conn., 530; Goodwin v. McGehee, 15 Ala., 232; Lyle v. Bradford, 7 Mon., 111; Lytle v. Pope, 11 B. Mon., 297; Lee v. Averell, 1 Sandf., 731; Spalding v. Butts, 6 Conn., 28; Sidwell v. Worthington, 8 Dana, 74; Jencks v. Phelps, 4 Conn., 149; Bacon v. Gardner, 23 Miss., 60; Fowler v. Byrd, Hemst., 213; Metcalf v. Smith, 40 Mo., 572; Samuels v. Shelton, 48 Mo., 444; Bailey v. McGinniss, 57 Mo., 362. 3 Bennett v. Williams, 5 O., 461; Clevinger v. Hill, 4 Bibb, 498. '1 Bailey's Eq., 479. ject of litigation has been purchased in good faith, without actual notice of the pendency of the suit, renders it necessary and proper to confine it within narrow limits and give the innocent purchaser the benefit of all technical objections which may be interposed, to the regularity of the proceeding by which his vendor's title is attacked. The enforcement of the rule does not proceed upon the ground that the purchaser has been guilty of fraud. It is at most a general notice of an equity, and cannot affect any particular person with a fraud, unless there was a special notice of the title in dispute, brought home to the person to be charged with notice.1 § 351. Property to be Identified. One of the leading principles upon which this doctrine is founded, is that the specific property must be so pointed out by the proceedings as to warn the whole world that they meddle with it at their peril. There must therefore be something in the pleadings, or the published notice, at the date of the purchase, to direct the purchaser's attention to the property as the identical thing which is the subject of the litigation. The notice being purely constructive, is of the facts contained in the bill and nothing more. Therefore unless it contains averments calculated to affect the title to the property, the purchaser will be unaffected. § 352. Alimony. So where a petition for divorce, in general terms prayed for alimony, without asking for an allowance out of any specific property, this was held not to operate as a lien until the decree was pronounced fastening it upon a particular property.1 $353. Creditor's Bill.-- So also, a creditor's bill, to operate as notice under this doctrine must be so definite in the description of the property to be charged, that any one reading it can learn thereby what property is the subject of the litigation." 1 Mead v. Lord Orrery, 3 Atk., 235. Lewis v. Mew, 1 Strob. Eq., 180. 3 Griffith v. Griffith, 1 Hoff. Ch. R., 153; Stone v. Connelly, 1 Metc. (Ky.), 652; Ray v. Roe, 2 Blackf, 258. 'Hamlin v. Bevans, 7 O., 161. |