This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The doctrine of lis pendens by which one purchasing land from a party to a pending litigation concerning such land takes subject to the results of such litigation, is properly based, it would seem. not on the theory that such purchoser has notice of the adverse claim, but rather on the principle that, pending the litigation, a party thereto cannot transfer his rights in the land to others, so as to prejudice another party to the litigation, since otherwise the decision might be utterly ineffectual.24 The courts, however, frequently refer to the doctrine as constituting a branch of the law of notice, a pending litigation being said to be notice to purchasers from parties thereto, and this is, in most must be supposed to act with reference to their own interests, that valuable consideration should be paid for that which the purchaser knows does not belong to the seller." Stayton, C. J., in Rogers v. Pettus, 80 Tex. 425, 15 S. W. 1093.
23. See Errett v. Wheeler, 109 Minn. 157, 26 L. R. A. (N. S.) 816, 123 N. W. 414; Dundee Refclty Co. v. Leavitt, 87 Neb. 711, 30 L. R. A. (N. S.) 389, 127 N. W. 1057.
24. Bellamy v. Sabine, 1 De Gex & J. 566; Cherry v. Dicker-son, 128 Ark. 572, 194 S. W. 690; Cheever v. Minton, 12 Colo. 557,
Cases, the result of the doctrine. Consequently it is not improper to refer to the doctrine in connection with the law of notice.
13 Am. St. Rep. 258, 21 Pac. 710; Norris v. He, 152 111. 190, 43 Am. St. Rep. 233, 38 N. E. 762; Watson v. Wilson, 2 Dana (Ky.) 406, 26 Am. Dec. 459; Turner v. Houpt, 53 N. J. Eq. 526, 33 Atl. 28; Lamont v. Cheshire, 65 N. Y. 30; Arrington v. Arlington, 114 N. C. 151, 19 S. E. 351; Baker v. Leavitt, 54 Okla. 70, 153 Pac. 1099; Dovey's Appenl. 97 Pa. St. 153; Newman v. Chapman, 2 Rand. (Va.) 93, 14 Am. Dec. 776; Linn v. Collins, 77 W. Va. 592, Ann. Cas. 1918C, 86, 87 S. E. 934. See 2 Pomeroy Eq. .Tur. Sec. 632; editorial note 20 Harv. Law Rev. 488.
The doctrine of lis pendens is sometimes spoken of as being peculiarly applicable to equitable proceedings, on the ground that, in the case of a legal action, a purchaser pending the litigation can take only the title of his vendor, irrespective of notice; but this latter statement in regard to legal actions sees to involve but another statement of the doctrine of lis pendens, and the doctrine is regularly applied in the case of proceedings concerning land at law, as well as in equity.25 Applications of the doctrine accordingly occur in connection with actions of ejectment,26 as well as in connection with equitable proceedings, such as suits to foreclose a mortgage or enforce any other lien,27 to establish a trust in land,28 to set aside a conveyance,29 or for partition.30
25. See 2 Pomeroy, Eq. Jur. Sec. 633; Tilton v. Cofield, 93 U. S. 163, 23 L. Ed. 858; Cheever v. Minton, 12 Colo. 557, 13 Am. St. Rep. 258, 21 Pac. 710; Norris v He, 152 111. 190, 43 Am. St. Rep. 233, 38 N. E. 762; Smith v. Hodson, 78 Me. 180, 3 Atl. 276; Mcllwrath v. Hollander, 73 Mo. 105, 39 Am. Rep. 484; La-mont v. Cheshire, 65 N. Y. 30; Rollins v. Henry, 78 N. C. 342; Houston v. Timmerman, 17 Ore. 499, 4 L. R. A. 716, 11 Am. St. Rep. 848, 21 Pac. 1037; Metcalfe v. Pulvertoft, 2 Ves. & B. 200.
26. Walden v. Bodley, 9 How. (U. S.) 34, 13 L. Ed. 36; Wetherbee v. Dunn. 36 Cal. 147, 95 Am. Dec. 166; Elizabethport Cordage Co. v. Whitlock, 37 Fla. 190; Glanz v. Ziabek, 233 111. 22, 84 N. E. 36; Smith v. Hodsdon, 78 Me. 180, 3 Atl. 276; Rollins v. Henry, 78 N. C. 342; Snively v. Hitechew, 57 Pa. St. 49.
27. Owen v. Kilpatrick, 96 Ala. 421; Burleson v. Mcdermott, 57 Ark. 229, 21 S. W. 222; Norris v He, 152 111. 190, 43 Am. St. Rep. 233, 38 N. E. 762; O'brien v. Putney, 55 Iowa, 292, 7 N. W. 615; Bell v. Diesem, 86 Kan. 364, 121 Pac. 335; Rosenheim v. Hartsock, 90 Mo. 357, 2 S. W. 473.
28. Walker v. Elledge, 65 Ala. 51; Pratt v. Hoag, 5 Duer (N. Y.) 631.
29. Mellen v. Moline Malleable Iron Works, 131 U. S. 352, 33 L. Ed. 178; Evans v. Welch, 63 Ala. 250; Leuders v. Thomas, 35 Fla. 518, 48 Am. St. Rep. 255, 17 So. 633; Watson v. Wilson, 2 Dana (Ky.) 406, 26 Am. Dec. 459; Cossett v. O'riley, 160 Mich. 101, 125 N. W. 39; Jackson v. Andrews, 7 Wend. (N. Y.) 152, 22 Am. Dec. 574.
30. Skvor v. Weis, 153 Iowa, 720, 134 N. W. 85; Hale v.
In most jurisdictions, apart from statute, a proceeding is pending for the purpose of this doctrine, only when the original pleading in the suit, that is, the declaration, bill, complaint, or petition, as the case may be, has been tiled, and the defendant whose interest is sought to be acquired has been served with process.'1 But by statute in many of the states the original doctrine of lis pendens has been modified by statutory provisions requiring a notice of lis pendens to be registered or recorded in some particular mode, in order that a purchaser for value and without actual notice may be charged with notice of the litigation.32
The doctrine of lis pendens applies not only in favor of a plaintiff as against a transferee of a defendant, but also in favor of a defendant as against a transferee of a plaintiff, though its application is naturally called for much less frequently in the latter case. The lis pendens in favor of a defendant would seem properly to commence, in the absence of a statute requiring the defendant to file a notice, at the same time as that in favor of a plaintiff, that is, so soon as the plaintiff's thereto.38 It applies, it has been decided, as against one acquiring a judgment lien upon the property of a party to the pending litigation.39
Such as a mortgage, which has not been recorded, is sufficient to make a purchaser of the land pending the litigation a purchaser with notice, so as to render the unrecorded instrument effective as against him.43
Ritchie, 142 Ky. 424, 134 S. W. 474.
31. See Banks v. Thompson, 75 Ala. 531; Majors v. Cowell, 51 Cal. 478; Norris v. He, 152 111. 190, 43 Am. St. Rep. 233; Allen v. Poole, 54 Miss. 323; Jackson v. Dickenson, 15 Johns. (N. Y.) 309, 8 Am. Dec. 236; Barry v. Hovey, 30 Ohio St. 344; Shufeldt v. Jefcoat, 50 Okla. 790, 151 Pac. 595; Diamond v. Lawrence County, 37 Pa. St. 353; Staples v. White, Handley & Co., 88 Tenn. 30, 12 S. W. 339; Han-rick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330.