CHAPTER XLIII.

LIS PENDENS.

§ 1105. Statutory provisions. In most of the code states it is provided by statute that in an action affecting the title or the right of possession of real property the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterward, may record, in the office of the recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties and the object of the action or defense and the description of the property in that county affected thereby. From the time of filing such notice for record only shall a purchaser or incumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action, and only of its pendency against parties designated by their real names.1

§ 1106. Nature and object of rule.-Strictly speaking, the doctrine of lis pendens is not founded upon notice, but upon reasons of public policy based upon necessity. The main purpose of the rule is to keep the subject-matter of the litigation within the power of the court until the judgment or decree shall be entered; otherwise, by successive alienations pending the litigation, its judgment or decree should be rendered abortive and impossible of execution.2

The lis pendens may be defined to be the jurisdiction, power, or control which courts exercise over property involved in a suit pending the continuance of the action and until final judgment therein.3

If either of the parties assumes to make, after the notice of lis pendens has become operative, any transfer of the subject-matter Wash. Bal. Codes, § 4887; Wyo. Rev. Stats., 3529.

1 Cal. Code Civ. Proc., § 409; Ariz. Civ. Code, par. 1318; Idaho Rev. Codes, 4142; Mont. Rev. Codes, §§ 6517, 6889; Nev. Comp. Laws, §§ 3122, 3364, 3394; N. Dak. Civ. Code, $$ 5251, 5798, 5907; S. Dak. Code Civ. Proc., § 108; Utah Rev. Stats., 2953; Or. B. & C. Codes, § 5476;

2 Houston v. Timmerman, 17 Or. 499, 11 Am. St. Rep. 848, 21 Pac. 1037, 4 L. R. A. 716.

3 Dupee v. Salt Lake Valley etc. Co., 20 Utah, 103, 77 Am. St. Rep. 902, 57 Pac. 845.

of the litigation, or to create any incumbrance or charge against it, or to enter into any contract affecting it, or to deliver possession of it to another, the action may proceed without taking any notice whatever of such transfer, incumbrance, or change in possession, and the final judgment or decree, when entered, may be carried into effect, notwithstanding the attempted dealing with the subject-matter.*

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The statute applies to all actions affecting the title to real property which is applicable to court proceedings for the condemnation of land, but not to proceedings before a board of supervisors for the condemnation of land for road purposes. If a wife who sues for a divorce describes the property of her husband in the complaint, and asks to have it set aside to her for her support, the rule of lis pendens may be invoked by her against one who purchases during the pendency of the action and with notice thereof."

§ 1107. Operation and effect of notice.-Lis pendens is sometimes spoken of as operating as constructive notice of the suit and of the material allegations of the pleadings therein. The effect of the notice is to keep the subject-matter of the litigation within. the control of the court, and to render the parties powerless to place it beyond the reach of final judgment. One acquiring an interest pendente lite, is sometimes, on his application, permitted to appear in the action and defend or prosecute in the place of the person to whose interest he has succeeded. Whether, however, he appears in the cause or not, and whether he had any actual notice of its pendency or not, the judgment when rendered must be given the same effect as if he had not acquired his interest. Such a statute does not make it imperative upon plaintiff to examine the records and name as defendants all persons having adverse interests in the land."

The only way to charge a purchaser of the property pending the action with constructive notice of the suit is by filing a

notice of lis pendens, according to the statute.10 From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby. The notice applies to parties to the action, and purchasers under them, subsequent to the filing of the notice, and is as effectual as an injunction."1

The effect of the notice is to make a subsequent purchaser from the party a mere volunteer, affected by the judgment which may be rendered in the suit in which notice is given.12 The provisions of the codes abrogate the old rule making the mere pendency of an action constructive notice.1 The statute does not give any new rights to the plaintiff, but, on the contrary, limits rights which he previously had. It simply adds to the common-law rule a new requirement,-viz. not only a suit, but the filing of notice of it, and there is no distinction under the statute between different kinds of interest in or title to real estate. The only office of the notice is to give constructive notice to, and bind by the subsequent proceeding, those who deal with the party in regard to the property involved in the action. during its pendency and before judgment. No notice is necessary. to bind a purchaser or incumbrancer after judgment.15

Lis pendens is constructive notice of all facts apparent on the face of the pleadings, and of those other facts of which the facts so stated necessarily put the purchaser on inquiry.10 It is not a conveyance, nor is the person filing it a purchaser, and as such protected against pre-existing unrecorded conveyances.17 While ignorance of any material fact disclosed by the record cannot be successfully urged by a purchaser for the purpose of escaping from or limiting the effect of the judgment finally entered in the action, constructive notice of matters not in issue and not pertinent to any issue, and which therefore cannot be determined in the action or proceeding, cannot be given by merely mentioning them in the pleadings. 18

10 Ault v. Gassaway, 18 Cal. 205. 11 People v. Connolly, 8 Abb. Pr. 128; Chapman v. West, 17 N. Y. 125; Stevenson v. Fayerweather, 21 How. Pr. 449.

12 Gregory v. Haynes, 13 Cal. 594; Haynes v. Calderwood, 23 Cal. 409; Hurlbutt v. Butenop, 27 Cal. 50. 13 Sampson v. Ohleyer, 22 Cal.

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14 Richardson v. White, 18 Cal. 102; Sampson v. Ohleyer, 22 Cal. 200; Horn v. Jones, 28 Cal. 194.

15 Abadie v. Lobero, 36 Cal. 390.

16 Powell v. Campbell, 20 Nev. 232, 19 Am. St. Rep. 350, 20 Pac. 156, 2 L. R. A. 615.

17 Baker v. Bartlett, 18 Mont. 446, 56 Am. St. Rep. 594, 45 Pac. 1084. 18 Page v. Waring, 76 N. Y. 463.

§ 1108. Necessity for filing.—The notice must be filed strictly according to the statute in order to charge a purchaser of the subject-matter of the suit; mere pendency of the suit does not so charge him.19 If no notice of lis pendens is filed, the jurisdiction of the court is not thereby affected, notwithstanding section 749 of the California Code of Civil Procedure;20 but a bona fide purchaser of land, without notice of proceedings pending for its condemnation at the time of purchase, is not affected by those proceedings,21 notwithstanding a statute provides for the filing of a notice of lis pendens, and "from the time of filing such notice only shall the pendency of the action be constructive notice to a purchaser or incumbrancer from a party affected thereby." A purchaser of the property in controversy in such action is not affected by the notice, unless his purchase is during the pendency of the action, and it is not during such pendency if final judgment has been entered therein, though such judgment is ultimately reversed on a writ of error subsequently sued out.22 The lis pendens operates as notice only during the pendency of the suit in which it is filed.23 If the notice be not filed, the plaintiff cannot successfully set up that the notice would have done no good to the purchaser, because he could make no defense or no better defense than the vendor.24

The Washington statute 24a providing for the filing of a notice of lis pendens in actions affecting real property does not supersede or control the statutes25 providing that an action to recover possession of real property cannot be prejudiced by any alienation made by the person in possession, and declaring that the judgment in an action to recover the possession of real property shall be conclusive as to the estate in such property, and the right to the possession thereof, upon the parties against whom the same is rendered, and all persons claiming under them after the commencement of the action.20

19 Head v. Fordyce, 17 Cal. 149; Ault v. Gassaway, 18 Cal. 205.

20 Blackburn v. Bucksport, 7 Cal. App. 619, 95 Pac. 668.

21 Bensley V. Mountain Lake Water Co., 13 Cal. 306, 73 Am. Dec. 575; Richardson v. White, 18 Cal.

102.

22 Cheever V. Minton, 12 Colo. 558, 13 Am. St. Rep. 258, 21 Pac. 710.

23 Pipe v. Jordan, 22 Colo. 392, 55 Am. St. Rep. 138, 45 Pac. 371.

24 Richardson v. White, 18 Cal. 102; Sampson v. Ohleyer, 22 Cal. 200; Horn v. Jones, 28 Cal. 194.

24a Wash. Code 1881, § 61; Ballinger's Annot. Codes & Stats., § 4887. 25 Ballinger's Annot. Codes & Stats., §§ 5515, 5518.

26 May v. Sutherlin, 41 Wash. 609, 84 Pac. 585.

The court has no power to take from the files a lis pendens regularly filed.27

§ 1109. Actions and property to which statute is applicable.In order that the lis pendens may become operative, it is essential that there be an action or proceeding, and that it be pending in a court having jurisdiction of the subject-matter. Of course,

if the court has no such jurisdiction, the pendency of the suit can affect no one, and therefore does not operate as a lis pendens.28 Where an action is brought, and lis pendens is filed, the notice brings within the operation of the statute all property affected thereby, provided it be not beyond the jurisdiction of the court.29 The interest subsequently acquired, if it comes through some other source than the defendants of the action, is not affected by such notice; but the presumption is that interest derived pending litigation, comes through a defendant.30 Property is not subject to the operation of the notice unless the suit or action directly affects either the title thereto or the possession thereof; it is not sufficient that the title or right of possession may be incidentally affected. Thus a proceeding to forfeit the charter of a corporation does not deprive it of the power to dispose of its property, nor does it place such property within the rule of lis pendens, so that purchasers thereof may lose the property or right to the possession through the appointment of a receiver. And the filing of a notice of lis pendens by the plaintiff in a divorce suit by a wife does not affect a judgment, obtained pending such suit against the husband, on community property awarded to the wife by the judgment in a divorce suit dividing such property.32 The purchaser of land subject to the lien of a mortgage is not affected by the notice of lis pendens where the title to the mortgage only was involved in the suit, and not the land itself.33 A statute providing that a purchaser of property in litigation shall be affected by the suit only after the filing of the notice of lis pendens applies to suits to foreclose

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27 Pratt v. Hoag, 12 How. Pr. 215. 28 Leavell v. Poore, 91 Ky. 328, 15 S. W. 858; Benton v. Shafer, 47 Ohio St. 117, 24 N. E. 197, 7 L. R. A. 812.

29 Majors v. Cowell, 51 Cal. 478. 30 Harrod v. Burke, 76 Kan. 909, 123 Am. St. Rep. 179, 92 Pac. 1128.

31 Havemeyer v. Superior Court, 84 Cal. 328, 18 Am. St. Rep. 192, 24 Pac. 121, 10 L. R. A. 627.

32 Mayberry v. Whittier, 144 Cal. 322, 78 Pac. 16.

33 Green v. Rick, 121 Pa. St. 130, 6 Am. St. Rep. 670, 15 Atl. 497, 2 L. R. A. 48.