This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
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In Bellamy v. Sabine (u), the principles on which the doctrine of Us pendens depends were fully discussed. The circumstances were shortly these : In 1827, A., a tenant for life, sold his life estate to B., tenant in tail in remainder; shortly afterwards, B. suffered a recovery, and sold the estate to C. in fee; in 1828 B. died, leaving D. his heir-at-law, who, if no recovery had been suffered by B., would have been next tenant in tail. D., in 1830, filed a bill against A. and C. to set aside both sale transactions, on the ground of fraud. Pending the suit, and before a decree was made, C. mortgaged part of the estate to E. In 1835 a decree was made, dismissing the bill against A., but setting aside the sale to C. as fraudulent, and directing a reconveyance from 0. to D. free from incumbrances, on payment of what should be found due from D. to C. Subsequently, A., who had not received his purchase-money, filed a bill against D., C, and C.'s incumbrancers, for specific performance of his contract, and the question was as to the right of priority between A. for his unpaid purchase-money, and E. the mortgagee pendente lite for his mortgage debt. V.-C. Wood, on the ground that a person who buys pending a suit is to be bound by the result in the same way as if he had been a party to it (x), postponed the claim of E. to that of A.: but, on appeal to the full Court, Lord Cranworth, after reviewing the earlier authorities, rested the doctrine, not on the ground of implied notice; the consequence of which might be that the person affected with notice is affected with notice of everything reasonably deducible from or appearing in the suit; hut on the ground that a litigant party cannot, pending the litigation, confer any right to the property in dispute, so as to prejudice the opposite party; and held that the pendency of D.'s suit against A. and 0. did not amount to notice of the equitable rights of A. against C.: and Lord Justice Turner also laid it down that the doctrine is not founded upon any of the peculiar tenets of a Court of Equity as to implied or constructive notice ; but that it is a doctrine which prevails alike both at Law and in Equity; resting on this foundation, viz., that it would be impossible that any action or suit could be brought to a successful termination, if alienation pendente lite were permitted to prevail.
As to lis pendens.
Bellamy v. Sabine.
(r) Sowerby v. Brooks, (1821) 4 B. & Ald. 523. As to what is notice of an act of bankruptey, see Williams on Bkcy. 8th ed. pp. 141, 2(50.
(s) Sug. 14th ed. 760.
(t) Judgments Act, 1839, s. 7; and see Plant v. Pearman, (1872) 41 L. J. Q. B. 169.
(u) (1857) 3 Jur. N. S. 943 ; 1 D. & J. 566; 26 L. J. Ch. 797.
(x) See shorthand writer's note of the V.-C.'a judgment, (1857) 3 Jur. N. S. 943.
This case seems to have established the rule, that lis pendens does not affect a defendant with notice of the plaintiff's rights, other than those asserted in the pending litigation (y). Of course, where the plaintiff claims no interest in the property, as in an interpleader suit, the pendency of the suit will protect the interests of the defendants inter se. In one case (z), where the deficiency of the testator's personal estate was raiseable out of two real estates separately devised to A. and B., and an order was made in 1846, in a creditor's administration suit, for the sale of A.'s estate alone without prejudice to his right of contribution against B.'s estate, and in 1852 the suit was registered as a lis pendens, and shortly afterwards B. mortgaged to C. who had notice of A.'s claim, it was held that there was a lis pendens as regarded A.'s rights, and that C.'s claim must be postponed thereto. But in this case the Court had made a decree in favour of one defendant as against his co-defendant, before the registration of the lis pendens and the creation of the mortgage; which sufficiently distinguishes it from Bellamy v. Sabine; and justifies Lord Romilly's decision, that a purchaser, having notice of a registered lis pendens, must be taken to have notice also that the Court had made a decree, that one defendant had a right to stand in the place of another (a).
Remarks on the doctrine.
(y) See Price v. P., (1887) 35 Ch. D. 297 ; 56 L. J. Ch. 530, where the subject of notice by Us pendens is fully considered with reference to all the authorities.
(z) Tyler v. Thomas, (1858) 25 Beav. 47.
The mere absence of the title deeds does not seem in itself to be notice of the interest of the person holding them (b) ; though it may be otherwise if their absence is not explained or accounted for (c). Notice of the preparation of a draft does not seem in itself to be notice of the executed deed (d). On the purchase of A., one of two adjoining estates belonging to the same owner, notice of building covenants entered into by such owner with a mortgagee of the adjoining estate B., is not notice of the expenditure on both estates of money which, under the covenant, ought to have been expended on B. exclusively (e). Slight discrepancies in the plans on the deeds which, if inquired into, might have led to the detection of a fraudulent dealing with the property, were held not to be constructive notice of it (/). It can hardly be doubted, that the mere fact of attesting the execution of a deed will not fix the witness with notice of its contents (g). Where a sale by fiduciary vendors is apparently regular, a purchaser need not inquire into collateral questions - such as the mode in which the sale has been conducted (h) - though he will be affected with notice of a breach of trust clearly deduciblo from facts appearing on the face of the assurance (i), or suggesting inquiry (k).
Miscellaneous instances of notice not being imputed.
(a) But see Lord St. Leonards' comments,' Sug. 14th ed. 760.
(b) Plumb v. Fluitt, (1791) 2 Anstr. 432 ; Evans v. Bichnell, (1801) 6 Ves. 173 ; and see Jones v. Smith, (1311) 1 Ha. 43, 63; Agra Bank v. Barry, (1874) L. E. 7 H. L. 135.