Motley v. H. Vicello & Bro. , 132 Va. 281 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The correctness of the decree of August 28, 1918, under review, in so far as it holds the alleged lien of the appellant to be invalid as against appellees, constituting other lien creditors of the debtor, depends, primarily, upon whether the memorandum relied on by appellant is valid as a lis pendens under the provisions of section 2460 of the Code of 1887, as amended by Acts of 1893-4, page 614. That statute was in force when the proceeding under review occurred. It is somewhat different from the present statute law on the subject. The statute first above referred to appears in the Code of 1904, section 2460, and, so far as material, is as follows:

“A creditor, before obtaining a judgment or decree for his claim, may * * * institute any suit which he might institute after obtaining such judgment or decree to avoid a gift, conveyance * * * or charge upon the estate of his debtor declared void by either of the two preceding sections, and he may in such suit have all the relief in respect to said estate which he would be entitled to after obtaining a judgment or decree for the claim which he may be entitled to recover. A creditor availing himself of this section shall have a lien from the time of bringing his suit on all the estate, real and personal, hereinbefore mentioned, and a petitioning creditor shall be entitled to a like lien from the time of filing his petition in the court or in the clerk’s office of the court in which the suit is brought; but such lien shall not be valid against creditors * * * until and except from the time a memorandum setting forth the title of the cause, the .general object thereof, the court wherein it is pending, the amount of the claim asserted by the complainant, a, description of the property, and the name of the person whose estate is intended to be affected thereby shall be left with the clerk of the court of the. county or corpora^ tion wherein the property is, who shall forthwith record the said memorandum in the deed book and index the same in the name of the person aforesaid * *

With this preface, we will proceed to deal with the questions presented by the assignments of error in their order as stated below.

[1-5] 1. Was the validity of the alleged lien of the appellant, Motley, a matter which was so determined by the decrees of March, 1916, and July, 1916, that it falls within the doctrine of res adjudicata, so that the court could not after-wards consider the question of the invalidity of the lien as against other lien creditors, to-wit: the appellees, upon the filing of the petition by the latter on March 28, 1917, setting up alleged error of law in the holding of such decrees apparent from the record, in that such decrees undertook to establish the validity of such lien as against the appellees upon a so-called Us pendens which, as it is alleged in substance in such petition, is invalid on its face in certain particulars?

The question must be answered in the negative.

In our view of the case it is entirely unnecessary for us to deal here with the argument presented for the appellant on the subject of how far the decrees of March and July, 1916, as entered, may have bound the appellees as quasi, although not formal, parties to the cause at the time the decree of July, 1916, was entered. Even if the appellees had been properly made parties and had been before the court when the decrees of March and July, 1916, were entered, neither of those decrees was a final decree. Hence, the court had jurisdiction on a rehearing to correct the errors in them, as was done by the decree appealed from. Touching an error of law apparent from the record, the petition did not require affidavit in support thereof in order to be sufficient as a petition for rehearing. On the other hand, if it were considered that the appellees were not parties before the court in any sense at the time the decrees of March and July, 1916, were entered, still they had a right to file their petition for a rehearing of these interlocutory decrees. Daily’s Ex’r v. Warren, 80 Va. 512. See also Gills v. Gills, 126 Va. 526, 101 S. E. 900. The circumstance that one of the decrees confirmed a commissioner’s report, to which there was no exception at the time, would be, in such case, immaterial, the decree being interlocutory. Idem.

As we view the case, it will be necessary for us to further consider only the questions raised by the assignments of error which are stated below.

[6] 2. Was the memorandum relied on by appellant such a memorandum as is required by section 2460 aforesaid (Code 1904, section 2460), so as to render the lien claimed by appellant under that statute valid as against the liens of the appellees, if the memorandum were considered to have been properly recorded?

This question must be answered in the negative.

Without reference to any other provision of it, we deem it sufficient to say that the memorandum in question is fatally defective in that it failed to comply with the statutory requirement with respect to setting forth the description of the property intended to be affected by the petition of appellant.

[7] Since, where the other requisites of the statute are complied with as against other lien creditors, the lien, under the terms of the statute in question, dates from the time the memorandum is left with the clerk, the sufficiency of the description of the property contained in the memorandum must be tested as of the time the memorandum was left with the clerk to be recorded. Further—

[8, 9] The identity of the deed sought to be set aside by the petition, and what deed and what forty acres of land were “mentioned” in the suit in which the petition was filed, at the time the memorandum was left with the clerk, are essential elements of the description of the property contained in the memorandum in question, as the memorandum relies upon its references to these matters to describe the property. The description of the property is not set forth in the memorandum itself except by such references. What is expressly said in the memorandum itself of the deed misdescribes the deed in the important particular of saying that the grantor therein was named Minnie L. Edwards, whereas the correct name was Minnie L. Reynolds. It is doubtless true, however, that the legal maxim that that is certain which can be made certain, which is referred to in the cases of Norris v. Ile, 152 Ill. 190, 38 N. E. 762, 43 Am. St. Rep. 233, as applicable to the description of property in a pleading, and Harper v. Wallerstein, 122 Va. 274, 94 S. E. 781, L. R. A. 1918-C, 517, as applicable to such description in a deed, is also applicable to such description in a lis pendens. But when we follow up the references aforesaid in the memorandum in question, we find nothing to aid the description. The bill in the principal suit was not filed until March 6th, long after the memorandum was left with the clerk. Therefore, when the memorandum was left with the clerk, which is the time as of which it speaks and makes reference to the principal suit for identification of “the deed mentioned in said suit,” 'and of the “forty-acres therein mentioned,” nothing was “mentioned” in the suit on either of those subjects or on any other subject. The bill in the suit was not filed until some days after the memorandum was left with the clerk.

As said in Lile’s Notes on Eq. Pleading (3), page 231: “Description of res in pleading.—The res affected must be so described in the pleadings as to be capable of identification by the purchaser, had he known of and examined the record of the suit. Va. Iron, Coal & Coke Co. v. Roberts, 103 Va. 661, 49 S. E. 984.”

As held in Va. Iron, Coal & Coke Co. v. Roberts, 103 Va. 661, 49 S. E. 984, supra, “A purchaser having actual or constructive notice of a pending suit can only be held chargeable with knowledge of the facts of which the record in the suit, as it existed at the time of his purchase, would have informed him. He cannot be charged with knowledge of facts afterwards brought into the case.”

If the petition of the appellant mentioned in the memorandum could be referred to in aid of the description of the property, it would furnish no such aid. The petition contains precisely the same defects as the memorandum.

[10] Hence, the memorandum, containing in itself a material misdescription, and absolutely unaided in its description of the property by the references therein, does not comply with the statutory requirements aforesaid.

The decree of August 28, 1918, appealed from was, therefore, correct in holding that the said memorandum was defective in its terms, and therefore invalid.

This being our view of the case, it is unnecessary for us to pass upon the holding in the decree appealed from that the memorandum was invalid because not acknowledged for record, and, hence, was not recorded as required by law; and we express no opinion on that subject. And, for tne same reason, it is unnecessary for us to pass upon the question of whether the decrees of March and July, 1916, were or were not absolutely void for lack of jurisdiction of the court over the necessary parties.

[11] 3. It is stated in the petition of appellant for the appeal that when all the liens, including the claims of appellees, which are reported and established in the cause against the land, other than the claim of appellant, and all costs of suit, are paid out of the proceeds of the sale of the land, there will still be left of such proceeds some money applicable to the claim of appellant; and the position is taken that, 'as against this fund, the appellant has a lien under the provisions of said section 2460, provided he succeeds in establishing it

We think this point is well taken, if the facts are correctly stated.

The record before us does not disclose what the proceeds of the sale of the land were or what are the costs of suit that have been and will have to be paid out of such proceeds. If, however, there should prove to be such a surplus, it would, of course, stand in the place of the land, and to that extent the controversy would be between the owner of the land and appellant only. The statute, just referred to, gives the appellant a lien against the owner of the land from the time of the filing of appellant’s petition, if he thereafter, at any time while the suit is pending, succeeds in establishing his lien as against the owner. Whether, in the present condition of the cause as to the pleadings and the parties before the court, appellant is entitled to a decree in the court below enforcing that lien against such a surplus as is mentioned, if it be found to exist, is a question not before us for decision, as the owner of the land is not a party before us. But the appellees had and have of the case, the appellant has the right to have process is-no interest in this question. And certainly, in 'any aspect sue on his petition against the aforesaid owner and to have the opportunity to establish his lien against the owner to the extent of a, surplus aforesaid. Therefore, the decree appealed from was erroneous to the extent that it dismissed the petition of appellant. For this reason, such decree will have to be reversed, but the other holdings of such decree above approved and the result of such other holdings will be affirmed, with costs to appellees, as the parties substantially prevailing upon the appeal.

Reversed in part and affirmed in pa/rt.