Edward King vs. Henry Bill

Edward King vs. Henry Bill. [ *593 ] Under the statute (Kev. Stat., tit. 12, § 22,) which provides that courts of equity may pass the title to real estate by decree, without any act of the defendant, and that sucli decree shall be as effectual to transfer the same as the deed of the defendant, the title passes by the decree only as of the date of the, decree, ami does not, as a legal title, relate back to the commencement of the suit. The title thus acquired is not available at Jaw against -a -prior legal title derived from the defendant in such suit "during its pendency, the remedy of the party acquiring his title under the decree against such prior legal title being solely in equity. And where a party who liad acquired a legal title from the defendant in such suit during its pendency, and with no knowledge of the suit, sought by a bill in equity to set aside the decree, it was held that there was not suflieipnt reason for the interposition of a court of equity, in his favor since the title¡conveyed' hy'thepdecree'Cpplii~hei .enforced, against him only by proceetUngs in equity, and whatever equity existed in his favor could be shown in his defense against such"proceedings whenever they should be instituted. The doctrine of lis pendens is purely a doctrine of equity, recognized and enforced in courts of equity alone, and can not be rendered available in proceedings at law. But whether the doctrine is recognized at.all in this state, and if at all, to what, extent: Quere. If "recognized" at all in regard to titles to real estate, it is very questionable whethér, considering our registry, system and its policy, and our mode of instituting chancery proceedings, it should not be so modified as not'to bear upon’ the honest’acquisition of' a title which appears upon the records to be. unincumbered, orTipon those proceedings in chancery of which it is not possible, under our present system, for the public to be informed. Bile in equity. The facts were found by a committee. On the 31st of August, 1855, one Mason agreed with the petitioner, by parol, to sell him a certain piece of land in the town of Preston, for the sum of $200, and to give him a warranty deed on the 3d day of September, on the petitioner’s paying him the price agreed on. On the 3d of September the petitioner paid the $200, and Mason executed and delivered to him a warranty deed in accordance with the agreement, and the petitioner at once had the deed recorded. On the same day, but before the payment of the money and the execution of the deed, the respondent Bill brought a suit in equity against Mason, in which service was made on him personally, before the con- [ *594 ] veyance of the land and before the payment, *and in which he sought to compel a conveyance of the land from Mason, or to procure a decree vesting the title to it in him, upon the ground of a contract with Mason for its conveyance to him on certain conditions. The petition in the case was not returned to the clerk of the court until some time after the conveyance of the land by Mason to the present petitioner. At the November term of the superior court holden in New London county, to which the petition of Bill was made returnable, he obtained a decree upon an ex parte hearing, (no person appearing to defend,) vesting in him the title to the land, which decree he soon after had recorded upon the land records of the town of Preston. The petitioner purchased the land from Mason in entire good faith, and had no knoweldge at the time of any claim of Bill upon it; nor any knowledge of the bringing of the suit by Bill, or of its pendencv, until after the decree was passed and the term of the court had closed. The bill prayed that the decree might be set aside,' or that the case might be opened and the petitioner allowed to make defense therein. The superior court dismissed the bill, and the petitioner brought the case before this court by motion in error. Wait and Hovey, for the plaintiff in error. The decree obtained by Bill against Mason, against which the petitioner seeks relief, should have been set aside by the superior court. 1. The delivery of the deed by Mason to the petitioner related back to the time of the purchase, which was two days before the commencement of the suit in which the decree was passed. Jackson v. Dickinson, 15 Johns., 309. 2. The petitioner had no notice, either actual or constructive, of the pendency of the suit in which the decree was passed, or of the contract upon which it was founded, at the time he, purchased the property which was the subject of the litigation. Newland on Contracts,-506. 1 Story Éq. Jur., §§ 404,405. Murray v. Ballou, 1 Johns. Ch. 577. Murray v. Lylburn, 2 id., 445. Lewis v. Mew, 1 Strobh. Eq., 180. Stuyvesant v. Hall, 2 Barb. Ch. 151. Hayden v. Bucklin, 9 Paige, 512 Miller v. Kershaw, 1 Bail. Ch. 479. *Jackson [ *595 ] v. Dickinson, supra. In Great Britain and in. most of the United States, the service of the subpoena after the bill is filed will create a lis pendens, and is constructive notice to all persons. Anon., 1 Vern., 318. 2 Madd. Cha. Prac., 256. 1 DanielPs Cha. Prac., 377. But in this state there is no lis pen-dens which will imply notice to purchasers until the bill has been served and returned to the clerk of the court. 3. The petitioner has not adequate remedy at law, because the decree vests the title to the property in the defendant, and thus throws a cloud over it which a judgment in ejectment will not remove. 2 Story Eq. Jur.,. § 705. Chipman v. City of Hartford, 21 Conn., 488. Foster and Halsey, with whom was Holbrook, for the defendant in error. 1. In this state the service of the process is the commencement of the suit. Clark v. Helms, 1. Root, 487. Jencks v. Phelps, 4 Conn., 149. Spalding v. Butts, 6 id., 28. Gates v. Bushnell, 9 id., 530. The same rule prevails in suits in equity. The return of the petition has nothing to do with the commencement of the suit. It is merely a step in the prosecution of it. 2. The petition in the ease of Bill v. Mason was duly returned to the court and entered upon the docket, and was regularly prosecuted by Bill to final judgment. The suit was not merely commenced by the service on Mason, but it was binding as against him and his representatives. Allen v. Mandeville, 26 Miss., 397. Our whole course , of practice proceeds upon tins principle. If after such service the defendant dies before the return, the writ may be returned and his representatives made a party. 3. The suit thus having been pending as respects the plaintiff and defendant by the service on Mason, and having been regularly prosecuted to final judgment, the title of King derived under his deed from Mason was subject to the decree that was made in the suit. He came in as a purchaser lite pendente. 2 Bouvier Law Diet. “ Lis pendens1 Story Eq. [ *596 ] Jur., § 406. 2 id., § 908. Bennett v. Williams, 5 Ham., 461. Newman v. Chapman, 2 Rand., 93. Murray v. Ballou, 1 Johns. Ch. 560. Murray v. Lylburn, 2 id., 441. Sugden on Vendors, Ch. 17, § 2. The rule is the same whether the conveyance be of a legal or equitable estate. Story Eq. Plead., § 156. The rule is founded upon reasons of public policy. Newman v. Chapman, supra. Hopkins v. McLaren, 4 Cowen, 678. Bennett v. Williams, supra. 1 Story Eq. Jur., § 406. The true rule to be gathered from all the cases is, that when a suit is pending according to the course of the court, whatever the form of proceeding, from that moment the doctrine attaches, for from that moment the reason of the rule applies. Thus, if a subpoena is served and a bill is afterwards filed, the lis pendens relates to the time of service. On the other hand, the filing of a bill without the service of subpoena creates no litem pendentem. Sugden on Vendors, Ch. 17, § 2. Anon., 1 Vern., 318. In this state the service of the petition and citation creates the complete pendency of the suit, as against the defendant and bis representatives, and from that moment the reason of the rule applies, and consequently the rule itself. [MAJORITY — Stokes, C. J.] Stokes, C. J. This petition, the object of which is to set aside the decree made in the case of Bill v. Mason, or to open that case for the purpose of giving the present petitioner an opportunity to make defense therein, is sought to be sustained on the ground that it divested him of the title to the land in question which he obtained by the deed to him from Mason. It is very clear that by that deed from Mason, to whom the legal title had been conveyed by Bill, the acknowledged owner, the petitioner acquired and still retains a perfect legal title to the land, under which, if he is in the possession of it, he can at law protect himself in that possession, or if not in possession can acquire it by an action of ejectment; and that therefore, having an adequate remedy at law for the protection or enforcement of such title, he has no occasion to resort to a court of equity for that purpose, and the present bill can not be sustained. His legal title being thus perfect, and the aid of a court of equity not being necessary *in order to [ *597 ] strengthen or confirm it, it is not competent for him to resort to that court under a mere apprehension that the defendant may hereafter bring a bill in equity against him for the purpose of divesting him of his legal title upon some equitable ground. It is a sufficient answer to the plaintiff that he is not yet disturbed by the defendant, and that it will be time enough for him to meet such a claim when it shall be made bv the defendant. A claim which the defendant may never seek to enforce, the plaintiff can not thus set up by anticipation for the purpose of overthrowing it, but he must wait until the defendant himself asserts it. The decision of this case must therefore turn upon the effect of the decree which has been mentioned upon the legal title of the petitioner thus acquired; and we are of the opinion that, whatever effect it may have in equity upon that title, it would not be available in a court of law as a defence against it. In the first place, the general principle of law that a judgment or decree binds or affects only the parties to the case in which it was rendered or their privies, would exclude the introduction of the decree in favor of Bill against the plaintiff, as the latter was not made a party in that case ; and his title having been acquired subsequently to that upon which the decree operated and prior to the passing of that decree, there was no such privity between the plaintiff and the party against whom that decree was rendered, that the former in a court of law is affected by it. In the next place, whatever title was passed by that decree was the title of Mason only, the defendant in that suit, and no such title was passed excepting that which he had when the decree was rendered. And his legal title having been previously conveyed to the plaintiff, the title thus passed was founded only upon an equitable interest in Bill in the land, existing previously and down to the rendering of the decree. Indeed the ground of Bill’s petition was only to turn an equitable interest which he claimed into a legal title by the decree of the court, and the effect of that decree was only the same as if the court, ^instead of thus passing directly, [ *598 ] under our statute, the title of Mason to Bill, had, as it might have done, ordered Mason himself to convey his title to Bill, and he had conveyed it accordingly; in which last case there is no doubt that the conveyance to Bill would have taken effect, as a legal instrument, only from the time of its execution ; and it would not have related back to the title of Mason, either at the commencement of the petition, or the arising of Bill’s equity, or indeed at any time prior to the execution of the deed by Mason. That such only was the effect of the decree is evident from the language of the statute by virtue of which it was rendered, by which, after authorizing courts of equity to “ pass the title to real estate by decree, without any act on the part of the defendant, when in their judgment it shall be the proper mode to carry the decree into effect,” it expressly declares that such decree, having been recorded as therein provided, “ shall, while in force, be as effectual to transfer the same as the deed of the defendant.” Rev. Stat., tit. 12, § 22. It thus plainly intended only to provide that a court of chancery might, at its discretion, substitute a new mode of vesting the title to land in certain cases, for the one which by the course of that court it was customary previously to adopt. When, therefore, the decree passing the title was made upon Bill’s petition, the legal title to the land had become vested in the present petitioner, and was not affected by that decree. But it is suggested that the snit in equity brought by Bill against Mason was pending when Mason conveyed to the petitioner, and that therefore the latter is bound by the decree in that case. This claim is founded upon .the principle, that a person acquiring rights from another against whom a suit is pending by which those rights may be affected, is bound by the proceedings and decree in such suit. Whatever may be the extent to which this doctrine of lis pendens is carried elsewhere, or is to be adopted here, it being now for the first time brought before our courts, we are of the opinion that it is not necessary for us in this case to examine it, because it is purely [ *599 ] an equitable dogtrine, ^adopted,’ recognized and enforced in courts of equity alone, and can not be rendered available in proceedings in courts of law; and therefore, in an action at law inywhich the legal title only of the plaintiff should come in question, that title could not be met or impaired by an application to it of a merely equitable principle, the cognizance of which^is confined to courts of chancery. And if, in the present controversy, the defendant can avail himself of that principle on his petition against Mason, he can do so, not in an action at/law between himself and the plaintiff, but only by a petition in chancery founded on a claim for equitable relief, which is cognizable in that court only. Whatever ground he might there have for relief, it does not therefore impair or affect the present legal title of the plaintiff or any proceeding founded upon it in a court of law, and consequently does not take from the plaintiff his present remedy at law founded on that title, and which, being there perfect, renders it unnecessary for him to come into chancery. Not intending to intimate any opinion in regard to the extent to which the doctrine of Us pendens should be applied in this state, especially as to titles to real estate, we would however suggest that it'is deserving of serious reflection, whether, considering our registry system and its policy, and the difference of practice prevailing here and elsewhere as to the mode of instituting chancery proceedings, it would not be necessary, at least, so to modify the doctrine of lis pendens prevailing elsewhere, that it should not bear upon the honest acquisition of a title upon which on our records of titles there appears to be no incumbrance, or upon those proceedings in chancery here of which it is not possible by any inquiry or diligence under our present system to obtain the slightest knowledge. The judgment complained of is therefore affirmed. In this opinion the other judges concurred. Judgment affirmed.