Steele v. Estabrook , 236 Mass. 252 ( 1920 )

Carroll, J.

In Steele v. Estabrook, 232 Mass. 432, the plaintiff was directed to convey his interest in certain real estate, described in his bill of complaint, to the defendant Hervey W. Estabrook. The rescript was filed on March 6, 1919. After the bill had been entered and while the suit was pending, the plaintiff, James P. Steele, in July, 1916, executed and delivered to John J. Shaughnessy and'Daniel W. Steele, a mortgage of this real estate, to secure the payment of a demand note for the sum of $5,000' given them for their services already performed and to be performed as counsel in the case. There was no notice of lis pendens on file in the registry of deeds at the time the mortgage was recorded. The defendants, on June 14, 1919, filed a supplemental bill, so called, alleging that the mortgage was given and praying that themortgagees Shaughnessy and Steele be ordered to discharge the same. The case came on to be heard upon the supplemental bill, the answer of the plaintiff and his attorneys, the replication, and the motion of the defendants for a final decree. The judge of the Superior Court did not pass on the value of the services of the mortgagees, but ruled that the mortgage was invalid against the defendants, and entered a decree directing Shaughnessy and Steele to discharge the mortgage on the records in the registry of deeds within ten days of the date of the entry of the decree. The mortgagees appealed. Thereafter it was ordered that a final decree be entered in accordance with the rescript from the Supreme Judicial Court, directing John W. Estabrook, Fred W. Estabrook, Hervey W. Estabrook and the Marlborough Grain Company to pay James P. Steele, the plaintiff, the sum of $714.35 with interest and costs, and thereupon the plaintiff was to transfer his interest in the real estate to the defendant, Hervey W. Estabrook, free from any incumbrances made by the plaintiff Steele during the pendency of the proceedings. At the request of the parties the case was reported to the Supreme Judicial Court upon the supplemental bill, so called, the answer, replication, findings of fact, decree and appeals therefrom, and the order for a final decree after rescript.

The mortgagees acquired the plaintiff’s title while the suit was pending, and the interest of the plaintiff in this real estate was involved in the suit. Steele v. Estabrook, supra, page 442. The doctrine of lis pendens as generally understood follows from the principle that the court has control over the subject matter of the litigation, while the suit or action is pending; “he, who purchases during the pendency of the suit, is bound by the decree, that may be made against the person, from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title, so acquired. As to them, it is as if no such title existed. Otherwise, suits would be indeterminable: or, which would be the same in effect, it would be in the pleasure of one party, at what period the suit should be determined.” Bishop of Winchester v. Paine, 11 Ves. 194, 197. Long v. Richards, 170 Mass. 120.

Under R. L. c. 134, § 12, with exceptions not now material, proceedings at law or equity, affecting the title to real estate, are not effective except against the parties thereto, their heirs and devisees and persons having actual notice thereof, until a memorandum of the proceedings is recorded in the registry of deeds. No notice of the pending suit, as required by the statute, was recorded in the registry of deeds; but the mortgagees were the plaintiff’s counsel, the bill in equity was filed in March, 1914, and the real estate was conveyed to them in July, 1916. This property was described in the first paragraph of the plaintiff’s bill; in the second prayer for relief he asked that an account be taken on the ground that the defendants had wrongfully appropriated this particular real estate, and that the defendants be ordered to pay him for the value of his interest in the property, on the ground stated. See Steele v. Estabrook, supra, page 442. The mortgagees were acting as counsel for the plaintiff when the conveyance was made. It is clear that as such they had actual notice of the proceedings and that the plaintiff’s title to the real estate in question was involved in the suit within the meaning of R. L; c. 134, § 12. See Wenz v. Pastene, 209 Mass. 359; Hughes v. Williams, 218 Mass. 448, 451. The mortgage, therefore, was not valid against the defendants.

The mortgagees contend that, even if they cannot claim title to the real estate under their mortgage, the proposed decree should be modified so that the money payable to their client, the plaintiff, should be ordered to be paid to them. The report of the case does not show that the question of the validity of the mortgage between the parties to the instrument was passed upon, and it does not appear that the value of the mortgagee’s services was determined. Under these circumstances the decree as ordered should not be modified. The decree entered upon the supplemental bill ordering the mortgagees to discharge the mortgage, and the order for the final decree, are affirmed.

The appeal of John J. Shaughnessy and Daniel W. Steele from the decree in the so called supplemental bill is dismissed.

So ordered.