Bowen v. Kirkland

FINLEY, Chief Justice.

We have thoroughly considered the questions involved in this case, and see no reason to 'change the disposition we have heretofore made of it; the motion f>or rehearing will therefore be overruled.

Counsel for the motion say that in the opinion rendered the court does not express its views upon the proposition urged by them, that the doctrine of lis pendens applies to the purchase of the land from the heir during the pendency of the litigation between such heir and the administrator, and they ask us to give a reason why the principle does not apply.

In our judgment, lis pendens has no application in this ease. Neither the title nor the possession to the tract of land here in question was involved in the litigation between the heir and the administrator. The issue involved in that litigation was, whether the administration upon the estate of Earle Cravens should he vacated and annulled because of alleged irregularities and fraud. Of course if the litigation has resulted in vacating the administration, the administrator would have ceased to have the legal right to the possession and control of the property generally belonging to the estate of Earle Cravens, deceased. In other words, the contest was over the issue whether Alford should continue to exercise the functions of administrator of the estate of Earle Cravens, deceased, and there was nothing in the proceedings directly involving the title or possession to this tract of land. Any judgment which could have been rendered in such proceedings would not have concluded the issue of title or possession to the particular land in controversy. Counsel quote this definition of the doctrine of lis pendens: "The underlying, if not the sole object of the maxim, 'pendente lite nihil innovetur/ is to keep the subject of the suit, or res, within the power of the court until the judgment or decree shall be entered, and thus to make it possible for courts of justice to give effect to their judgments and decrees. The necessity of the rule for this purpose is manifest and its enforcement imperative.” 13 Am. and Eng. Encyc. of Law, 70.

We agree that this gives a correct general idea of the doctrine. The doctrine is said to arise out of necessity, and is constructive notice to the world of the issues involved in pending litigation, and he that purchases property which is the subject of the litigation from one of the parties litigant, takes title subject to the judgment which may he therein rendered. The property so purchased must be the subject of the con

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troversy to be settled by the suit, and it will not do that a collateral question only is involved which may ultimately affect the title of the party litigant to the property purchased. In Hoffman v. Blume, 64 Texas, 335 , 336, it was held that the pendency of an action of “forcible detainer” did not give notice to a purchaser of the land from the plaintiff in the action, during its pendency, of the defendant’s claim of title to the property.

In Russell v. Kirkbridge, 63 Texas, 459 , it is said: “It is urged that the pendency of this suit was notice to Weaver at the time of his purchase. This view we think can not be sustained." Lis pendens is but constructive notice, and to make it available, we may say, as was well said in Lewis v. Mew, 1 Strobliart’s Equity, 183, 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. This is necessary to justice; for as liberty is very much, though necessarily, invaded by executing a decree over a party’s bead, without allowing him even a hearing, it is but fair to grant him the means of informing himself when he is in a 'likely way of getting into such danger.’ The following cases are to the same effect: Griffith v. Griffith, 1 Hoff. Ch., 160 ; Edmonds v. Crenshaw, 1 McCord’s Ch., 364.”

The motion for rehearing is overruled.

Overruled.

Writ of error refused.