Scudder v. Sargent

Lake, Ch. J. This case must be disposed of by a consideration of the right of a purchaser in good faith of land under a judgment subsequently opened pursuant to sec. 82 of the code ■of civil procedure, and reversed. The merits of that judgment, as between the original parties to the suit, are not involved in this inquiry. The section in question provides that: “Aparty against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, within Eve years after the date of the judgment or order, have the same opened and be let in to defend; before the judgment •or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all ■costs, if the court require them to be paid, and make it ap [104] pear to the satisfaction of the court, by affidavit, that during-the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it or in consequence of it. shall have passed to a purchaser in good faith, shall not be-affected by any proceedings under this section,” etc. It is urged on behalf of the appellant, as a proper construction of this section, that to be within its purview a purchaser must acquire the title before the application is-made to open the judgment. In other words, that if he acquire it afterwards, although in good faith, he takes it pendente lite and is not protected. Under this theory it is-claimed that, inasmuch as Ellinwood bought the land after the motion to open the judgment had been filed and notice-thereof given to the plaintiff, he is outside of the statuteana bound by the result. But we cannot so hold. It is doubtless true that a purchaser pendente lite acquires no better title than that of his grantor is judged to be. And if that which his grantor appeared to have be found defective, the judgment is the exact measure of his own under the purchase. According to all of the authorities the action in question ceased to be pending upon the rendition of the judgment in November, 1879, whereby the title to the property rvasfound to be in Mrs. Scudder, the grantor. When was it again pending? Surely not until by the opening of that, judgment the controversy which it had settled was renewed. This did not occur until the following April, and in the meantime Ellinwood had invested his money in the land on the faith of the judgment. The judgment rendered in November was a final judgment, nor does the fact that it was liable to be opened or reversed by proceedings in error deprive it of that character. It fixed the rights of the parties to it, and their privies; and while it stood — until it was opened and the contro [105] versy renewed, the action cannot properly be said to have been pending within the meaning of the statute. We see-no reason for disturbing the judgment, and it will be affirmed. Judgment affirmed. The other judges concur.