Wallace v. Marquett

JUDGE PRYOR

DELIVERED THE OPINION OF THE COURT.

In this case the appellants filed a demurrer to the petition of , tie appellee, and moved to dissolve the injunction. The demurrer was overruled and the injunction made perpetual, of which the appellants complain. The- facts alleged in the petition are in substance these; In the year 1858, an action was instituted in the Pendleton Circuit Court, by Samuel 'Wallace and others, against Lewis Myers and others, for the recovery of a large tract of land. In August, 1881, a judgment was rendered against Myers and others for the land and a writ of possession awarded. The appellee, Charles Marquett, in the year 1874, and while this action against Myers was pending, purchased the land in controversy of Myers, it being a part of the land that Myers had lost by the recovery.

The writ of' possession having been placed in the hands of the sheriff, and Marquett being about to be turned out of possession, filed the present action in equity enjoining the execution of the writ, in so far as it disturbed his possession, relying' on the following •state of facts.

He alleges that two men by the name of Summers and Kidwell were in the adverse possession of this land long before the action was instituted by Wallace against Myers, claiming the land against Wallace and all others, it being defined by a marked boundary, and continued in the [adverse possession for more than fifteen years, and for so long a period as vested them with a perfect title. That not only holding, but being in the actual adverse possession of this land for so long a period, [Summers, having acquired Kidwell’s title, sold the land to Lewis Myers, the defendant in the suit by Wallace, and Myers, in the year'1874, sold and conveyed the land to the appellee who has been in possession since that time. So the vendors of Myers had, as is alleged, acquired title by an actual adverse possession of more than fifteen years before the sale to Myers, and had entered on the land in the year 1845, thirteen years before the appellants, Wallace and others, instituted their action, which was in 1858. So there was a continuous possession of the land by Summers, Myers and the appellee from the year 1845 until this writ of possession issued in the year 1881, a period of thirty-six years. It is argued that the appellee can not hold by reason of this adverse possession in Summers and Myers, because he claims under Myers by the conveyance of 1874, and as Myers lost the land in the Wallace suit, the appellee, being a purchaser lis pendens, is in no better condition than Myers. It is distinctly alleged that neither Summers, Kidwell or the appellee were parties to the action brought by YYallace, and that they, nor either of them, had notice of the bringing or the pendency of that action.

Why Myers purchased the interest of Summers does not appear. He may have attempted to take shelter under their title to defeat a recovery by Wallace, but whether so or not, if the purchase from Myers by the appellee makes the latter a lis pendens purchaser, then the demurrer should have been overruled. It must be conceded, that if no action had been brought by Wallace against Myers that the adverse possession-for over fifteen years; or over thirty years in his case, would have vested the appellee with a perfect title. The mere fact that he acquired title from Myers does not make the verdict and judgment against Myers, conclusive as to the appellee, for if no party to the action he is not bound by it unless he was a lis pen-dens purchaser. If not a lis pendens purchaser it is immaterial when he purchased; if before the judgment, the judgment against Myers can not affect him. The question then is, was he such a purchaser \ The fact of his acquiring title from Myers does not preclude him from raising this question, for in such cases, the question as to a Us pendens often arises. It is well settled that a purchase pendente lite is bound by the judgment rendered against the person from whom he purchased, and the chancellor will not permit his possession to interfere with his enforcing the judgment.

A party by laches may, however, lose his Us pen-dens, and the purchaser from the party whose title is. defeated, and against whom a recovery is had, will be treated as a stranger to the proceedings. Where there is an unreasonable delay in the prosecution of the action, it is such negligence as will deprive the party of every remedy against bona fide purchasers. ‘ ‘ To entitle him to enforce it against bona fide purchasers, he has been held to reasonable diligence in the prosecution of his suit, and should be guilty of no palpable slips or gross irregularities in'the management of the same, by which injurymay accrue to the rights of others who are not parties.” (Clarkson v. Morgan’s devisees, 6 B. M. 449; Watson v. Wilson, 2 Dana, 406 ; Erhman v. Kendrick, 1 Met., 146.)

So here was an action pending for twenty-three years, with parties in possession during the entire period, claiming to hold the land as their own, and the appellee purchasing from the defendant in the action.. who was in possession and who had derived title from those whose possession, before .he purchased, had íúpened into a perfect title.

He had no notice of the pendency of the action, and -under such circumstances, it would be a harsh rule of law or equity that would treat him as a purchaser with notice or a purchaser pendente lite. On the contrary, he should be held to be a bona Ude purchaser, and his rights considered and determined as if no action had ever been instituted by the appellants for the recovery of the land in controversy. For the reasons indicated, the judgment below is affirmed.