Jarrett v. . Holland

Per Curiam. When a person acquires an interest in property pending an action of which be has notice, actual or presumed, in which tbe title to tbe land is in issue, from one of tbe parties to tbe action, be is bound by tbe judgment in tbe action just as tbe party from whom be bought would have been. Tbe rule is considered absolutely necessary to give effect to tbe judgments of courts, because if it were not so held a party could always defeat tbe judgment by conveying in anticipation of it to some stranger, and tbe plaintiff would be compelled to commence a new action against him. Rollins v. Henry, 78 N. C., 342. It is likewise true that where tbe action is instituted in tbe county in which tbe land is situate tbe action itself is notice to those who seek to deal with tbe property described in tbe complaint and no notice of lis *431 pendens, under C. S., 500, is required, except tbe procedure now provided by C. S., 501. Collingwood v. Brown, 106 N. C., 362; Arrington v. Arrington, 114 N. C., 151; Rollins v. Henry, supra. See Horney v. Price, 189 N. C., 820. However, to entitle a litigant to tbe protection of tbe lis pendens doctrine tbe suit or action must in some way involve tbe title to tbe real estate. Tbe mere description of a tract of land in a complaint in wbicb only a judgment for debt is sought does not give tbe action tbe force and effect of a lis pendens unless tbe allegations in tbe complaint involve tbe title to lands. Tbus it was beld in Threlkeld v. Land Co., 198 N. C., 186, tbat where a mortgagee of lands brings an action to recover on tbe note secured by the mortgage, and to set aside a deed of tbe mortgagor but not to foreclose tbe mortgage, tbe action is not one affecting tbe title of land within tbe meaning of C. S., 500, and tbe judgment of tbe lower court canceling and removing tbe notice of lis pendens from tbe records was affirmed. In Horney v. Price, 189 N. C., 820, it was beld tbat an action to recover damages for the breach of an option contract is not an action affecting the title to realty within C. S., 500, and tbe filing of notice in such case will not affect a purchaser pending tbat action. There is no lien for purchase money in North Carolina. Lumber Co. v. Humber Co., 150 N. C., 282; Womble v. Battle, 38 N. C., 182. Tbe mere fact tbat tbe complaint alleges tbat tbe amount due by tbe defendant to tbe plaintiff is tbe balance of tbe purchase money for tbe lands described in the complaint does not convert tbe action into one involving tbe title to real estate. It remains simply an action for judgment upon a debt. While a judgment debtor cannot claim a homestead as against a judgment for purchase money (N. C. Const., Art. X, sec. 2), this does not affect the rights of tbe mortgagee who acquired an interest in tbe property prior to tbe rendition of tbe judgment, nor can it be said tbat the pendency of tbe action at tbe time Mrs. Holland accepted a mortgage upon tbe premises gives tbe plaintiffs any priority. As tbe action did not involve title to real estate it did not constitute such notice to Mrs. Holland as would bind her and subordinate her lien to tbe judgment procured by tbe plaintiff. Hp until the very day of tbe trial there was no suggestion in tbe pleadings tbat tbe defendant bad agreed to give a purchase-money mortgage or tbat tbe plaintiff was seeking to have it so declared. Whatever attack tbe plaintiff may wish to make upon tbe mortgage accepted by Mrs. Holland must be made in a separate and independent action. Her mortgage was recorded prior to the rendition of judgment in favor of tbe plaintiff. However binding tbe judgment may be in *432 creating a specific lien upon tlie land described in tbe complaint, inter partes, it creates no lien upon said property in favor of the plaintiff prior to tbat procured by Mrs. Holland under tbe mortgage wbicb was executed and recorded before tbe entry of tbe judgment. Tbe court below properly denied plaintiff’s motion for an order directing tbe commissioner to sell tbe land free and clear of tbe mortgage beld by Mrs. Holland upon tbe assumption tbat said judgment was a prior lien. Affirmed.