Olson v. Leibpke , 110 Iowa 594 ( 1900 )

Sherwin, J.

In January, 1881, the American Emigrant Company brought an action in the district court of Calhoun county against-these defendants Long, to- quiet its title to the lands involved in these cases. Issue was joined, and a trial had unon the merits, which resulted in a decree^ Play 10, 1888, in favor of the-emigrant company, quieting its title. An appeal was taken from that judgment, and this court, following the holding of the Supremo Court of the United States in Rogers Locomotive Mach. Works v. American Emigrant Co., 164 U. S. 559, (17 Sup. Ct. 188, 41 L. Ed. 552), reversed the case. Emigrant Co. v. Long, 105 Iowa, 194, decided April 9, 1898. The plaintiffs purchased in the fall of 1895,. and contend that they were purchasers in good faith, for full consideration, and without notice, either actual or constructive, of the defendants’ claim of title. The controlling question, therefore, in these cases, is whether the plaintiffs are entitled to he protected as such purchasers. It may he conceded that the plaintiffs, at the time of their purpurchases, had no actual knowledge of the condition of the litigation between the emigrant company and the Longs, other than what was imparted by the abstract of title. What, then, was the status of the case after the decree in the district court ? The records of that court showed that a notice of appeal had been served within the statutory time. The stipulation entered into by the parties, through their attorneys, expressly recognized the sufficiency of the service, and this court held it good in the same case, and that it conferred jurisdiction upon the court to> hear and determine the appeal. It follows, then, that at the time of the plaintiff’s purchase, in the fall of 1895, the ease was pending in this court, and the records of the district court of Calhoun county so showed. The plaintiffs were therefore purchasers pendente lite. Section 2628 of the Code of 1873 provided that “when a petition has been filed affecting real estate, the action is pending so as to charge third.persons with notice of its pendency, and, while pending, no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s rights, if the real property affected be situated in the county wherein the petition is filed.” It will be borne in mind that the defendants had answered in the Emigrant Case, claiming adverse, title to this particular land, and that the case had been tried upon its merits. This court, in Ferrier v. Buzick, 6 Iowa, 258, says: “The purchaser of property actually in litigation, pendente lite, for a valuable consideration, and though he may have had no- express or implied notice in point of fact, is affected in the same- manner as .if he had such notice. This rule, though it may in some eases operate with hardship- upon a purchaser, is one of general convenience, and is now well and firmly established,” — citing cases. See, also-, 1 Story Equity Jurisprudence 411. The primary object of the rule of lis pendens is to keep- the property within the power of the court until final judgment or decree shall be entered, and thus enable courts to give force and effect to- such judgments. Bennett Lis Pendens, section 12; Murray v. Ballou, 1 Johns. Ch. 566. “It is founded upon the- necessity of such a rule in order to give effect to the proceedings in courts of justice. Without it, the administration of justice might, in all cases, be frustrated by successive alienations of the property which was the object of litigation, pending the suit, so that every judgment and decree could be rendered abortive, where the recovery of specific property was the object.” Neuman v. Chapman, 2 Rand. 93; Bennett Lis Pendens, section 14. The rule under the common law, and the rule which has been generally followed by the courts where there is no- statute affecting the question, is that Us pendens continues until the suit is determined by final decree, or until it is suspended by a failure to make what is.called a “full prosecution.” It is also held that an appeal fro-m a final judgment of an inferior court continues the lis pendens during the pendency of the appeal. Ferrier v. Buzick, supra; Washburn v. Van Steenwyk, 32 Minn. 355, (20 N. W. Rep. 324). The question as to what is a “full,” or, as some writers p-ut it, “continuous, prosecution of a cause,” either in the trial court or in the court to which an appeal is taken, is one which, of necessity, must be determined 'from the facts appearing in the particular ease under consideration. No iron-clad rule can be laid down for the government of all cases. The general rule laid down by the airthorities is that there must “be a prosecution of the suit without such intermission, as may appear to be inexcusable, and shall not be satisfactorily explained.” 13 Am. & Eng. Enc. Law, 889, and cases cited in note 2. It is also generally held that, where there is an apparent neglect to prosecute, a reasonable excuse for the delay complained of is always available to keep the lis pendens alive. Wickliffe's Ext v. Breckinridge's Heirs, 1 Bush, 443; Watson v. Wilson, 2 Dana, 407. And it is said in Gossom v. Donaldson, 18 B. Mon. 237: “It is not necessary, however, in order to retain the character of a lis pendens, that a suit should be prosecuted with even ordinary diligence; but, as a Us pendens is created by the institution of the suit, it can only be lost -by unusual and unreasonable negligence in its prosecution.” It has also been held, under the common-law rule, that full prosecution exists so long as the action is pending, and the court has complete jurisdiction over the matter in controversy. Bennett Lis Pendens, section 102. If we were to base our conclusion in the cases at bar solely upon the rule established by the common law, we think the evidence presented by the record would fully justify the finding that there was a full and continuous prosecution of the cases. It appears from the record that some fifty suits of a similar nature, brought by the emigrant company, and all involving a federal question, were at the same time pending in Calhoun county, and, as we understand the record, were all determined at the same time, in some instances for the plaintiff, and in others for the defendants, and all of the cases were appealed. It was afterwards stipulated that all of those cases were appealed, naming them, and that “the defendants shall proceed to prosecute their appeals in the following named cases, or such of them as they see fit, not less than two> namely,” giving the names of the cases, which list did not include the case against these defendants; and that all of the other appeals above mentioned on both sides shall stand continued, without prejudice to either party, and without being docketed in the supreme court, until the decision of said court in the appeals which may be prosecuted as herein provided. The appeal in the case of American Emigrant Co. v. Rogers Locomotive Mach. Works was prosecuted and decided by this court October 22. 1891 (83 Iowa, 612), and was taken to the Supreme Court of the United States on writ- of error, and there decided December 7, 1896 (17 Sup. Ct. Rep. 188, 41 L. Ed. 552), after plaintiffs purchased. In addition to the written stipulation, Charles A. Clark testified, in the cases at bar, that he had an oral understanding, as he supposed, with Mr. J. L. Davis, attorney for plaintiff, to the effect that the ■other swamp land cases were to stand over, under the written stipulation, until final 'decision in the Supreme Court of the United States in the Rogers Locomotive Mach. Works Case. This evidence was uncontradicted,, and we think was competent, as tending to show diligence on the part of the defendants Long. It was undoubtedly the understanding of the defendants’ counsel that the other cases should remain in abeyance until the questions involved had been finally determined in one or more of the cases to be prosecuted upon appeal, under the written stipulation. After the case of American Emigrant Co. v. Rogers Locomotive Mach. Works had gone to the Supreme Court of the United States, where the controlling questions involved in all of the cases which the stipulation covered would be finally settled, the- defendants in the cases at bar might well have ceased the active prosecution of their appeal, and awaited this final decision. But, by the very terms of our statute, Us pendens commences when a petition has been filed affecting real estate, and continues while the action is pending. Haverly v. Alcott, 57 Iowa, 171; Code, supra. This positive provision of the statute we can neither enlarge nor diminish. It stands as the expression of the legislative will on this subject, and must be given its broadest meaning. It was intended to give effect to judicial decrees, and to keep specific property which is in litigation within the prwer of the coiirt. It is a just statute, and its wisdom canot be better illustrated than in the cases at bar, where it is sought to take from the defendants valuable land, their title to which they have been defending for years, and have finally established by .decree of this court. And we now hold that the cause in which such decree was. rendered was pending when the plaintiffs purchased, in 1895,. and that plaintiffs could not, and did not, acquire any interest in the land in controversy, as against the rights of these defendants. The other questions presented by the record it is not necessary to notice. The judgment of the district court in both-cases is right, and both are affirmed.

Granger, C. J., not sitting.