Daniel v. . Hodges , 87 N.C. 95 ( 1882 )

"The defendant contends that the conveyances from her husband, Joseph Hodges, to W. W. Hall and from Hall to the plaintiff, having been made while her action for alimony was pending, and especially after the order of the superior court assigning her the lot in question, are brought within the principles involved in the law of lis pendens.

The rule of lis pendens is a principle founded not so much upon the doctrine of notice, as in motives of public policy. Hence it is held as a general principle that every one is presumed to be attentive to what passes in the courts of justice in the state where he resides, and that he who purchases during the pendency of a suit the property in litigation therein, is held bound by the decree or judgment (98) that may be rendered against a party to the action from whom he derives title; and this, whether he purchased for a valuable consideration and without any express or implied notice in point of fact. 1 Story Eq. Jurisprudence, Secs. 405, 406.

But in order to give effect to this principle, two things are said to be indispensable. First, that the litigation should be about some specific thing which must be necessarily affected by the termination of the suit; and secondly, 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. Freeman an Judgments, 196; Green v. Slaytor, 4 Jon. Ch. Rep. 38.

Under the application of these principles, it has been held by an almost invariable uniformity in the decisions upon the subject, that the rule oflis pendens does not apply to proceedings for alimony, for the reason that such a suit is in personam and does not apply to any specific part of the personal or real estate of the husband. The judgment obtained in such a proceeding, says Judge STORY, constitutes a lien upon the defendant's property from the time of the docketing, but does not constitute a lispendens any more than any other sufficient cause of action. 1st Story Eq. Jur., Sec. 196.

In Almond v. Almond, 4 Randolph, (Va.,) 662, the same doctrine is announced. It is there held that the claim of the wife for alimony is a personal claim on the husband, and that she has no lien on any specific property without an agreement — and to the same effect is Brightmanv. Brightman, 1 Rhode Island, 112.

It must be admitted that these decisions are supported by sound reason and good policy. For as the prayer of the petition for alimony according to the formula is, to have such reasonable subsistence secured to her out of the estate of her husband as may be deemed just and proper by the court, the application of the rule of lis pendens (99) in such a case would lock up the entire estate of the defendant, for the alimony would attach to every part of the real and personal property the husband had at the time of filing the petition.

Such we understand is the generally received doctrine in regard to the exclusion of the application of lis pendens in proceedings for alimony. But the particular circumstances of the case before us in our opinion constitute an exceptional case.

Whiles the prayer of the petition for alimony is in the usual form, it stated in the petition, that the lot in question was the only property in the state owned by the husband, and was the only property out of which alimony could be granted, and it was specifically described with such particularity, that every person reading the petition could learn thereby what property it was she sought to have made subservient to her claim. And although the prayer of her petition was in the usual general form, it was as evident that she was seeking to subject the lot in question to her claim for alimony, as if she had specifically prayed that it might be assigned to her. And then it was assigned to her by the order of the court, and she was put in possession, and was occupying it when the deeds were executed to Hall and the plaintiff, he having at the time of his purchase actual notice of the pendency of the suit, the order of the court, and the possession of the defendant by virtue of the order.

It is true the first order of the superior court was reversed by this court, on the appeal of the defendant in the petition, but that did not effect the lis pendens. The reversal was upon the ground that the order was premature, and could only be made at the termination of the suit. The suit was continued and diligently prosecuted to a final termination, when the lot was again assigned to the petitioner. The case of Stoddard v. Myers, 8 Ohio, 203, is a direct authority for the position that the lis pendens was not destroyed by the reversal of the order of the supreme court. Judge LANE, who delivered (100) the opinion of the court, said: "It is assumed that when the right to recover in the bill in equity was taken away by the reversal of the judgment, the suit ceased to be pending so far as to bind the property. We are not satisfied that this position is a sound one. No such distinction is to be found in the books. But the doctrine seems to be plain, that by the institution of a suit, the subject of litigation is placed beyond the power of the parties to it; that whilst the suit continues in court, it holds the property to respond to the final judgment or decree. This suit instituted in 1831 was regularly continued until the final decree in 1838. The supplemental bill was engrafted into the original bill and became identified with it. The whole was a lis pendens, effectually preventing an intermediate alienation."

In the argument before us, the position was taken by the plaintiff's counsel that it was essential "to make an action a lis pendens, it should be an action creating a lien, or for a specific thing." The authorities, as we have shown, are in support of the position, but the principle has been recognized by several decisions of this court, that a suit which. draws property incidentally in question is such lis pendens as binds the purchaser pendente lite.

In Baird v. Baird, 62 N.C. 317, the original suit was for a valuation of lands advanced, and the partition of slaves under a will, which provided that advancements should be accounted for, and it was held that the principle of lis pendens affected the land so as to bind it, in the hands of a purchaser pendente lite, for the payment of the judgment to make the slaves equal.

In Isler v. Brown, 66 N.C. 556, which was a motion to issue a vendex., and land sought to be sold was aliened pending the consideration of the motion; it was held the rule of lis pendens applied. See also Tabb v. Williams, 57 N.C. 352, and Gilmore v. Gilmore, (101) 58 N.C. 284; and these decisions of our court we find supported by the case of Gouth v. Ward, 2 Atkins 174, where it was held that a suit by devisees against the heir to perpetuate testimony and to establish the will, was such a lis pendens as affected a purchaser of the property with notice.

So in the case of Culpepper v. Aston, 2 Chan. Cases 115 and 221-223, a bill was filed by the heirs against the executors for an account, alleging the land was not wanted to discharge the debts, and during the pendency of that suit the executor sold the land; it was held "that the suit for the account was notice to the purchaser." And much more would these principles apply to our case, since by statute lands are made subject to alimony.

Upon due consideration of the authorities we have cited and others we have looked into bearing on the question presented by the record we are of the opinion the petition for alimony under the particular circumstances of the case, constituted such a lis pendens as affected the purchasers with notice, independent of the actual notice had, and rendered their deeds void.

There is error in sustaining the demurrer. It should have been overruled. The judgment of the court below must be reversed.

Error. Reversed.

Cited: Dalrymple v. Cole, 181 N.C. 287.