Blanchard v. Ware

Day, J. We know of no equitable rule or principle which will afford the plaintiffs relief under the facts stated. At the time they purchased the lands in dispute an action had been commenced against their grantor to set aside his title, he had [308] been personally served with notice and had appeared and obtained time to plead. Section 2842 of the Revision provides that: “ When a petition has been filed affecting real estate, the action is pending so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof, as against the plaintiff’s title, if the real property affected be situated in the county where the petition is filed.” Plaintiffs purchased the land pendente Vite and took the title subject to whatever results might follow the action then in progress to annul the title of their grantor. It is said, however, that they had only constructive notice of the pending action, and that their grantor fraudulently concealed the fact that suit was instituted against him. Let this be granted. Is this any reason why Ware should be denied the benefits of that litigation ? It is not averred that he was guilty of any concealment or misrepresentation, or that he perpetrated any fraud in the procurement of the decree. He is in no way responsible for the failure of Freeman to prosecute his suit. And if Freeman did conceal material facts from his grantee, the defendant knew nothing of it, and had no connection with it, so far as the averments in the petition show. If judgment had actually been rendered against Freeman, divesting his title, at the time he sold to plaintiffs, and he had concealed tha,t fact and passed upon them a worthless title, it would scarcely be contended that that fact would give plaintiffs a standing in a court of equity as against this defendant, and we cannot see how plaintiff’s equities are any better than in the case supposed. It is clear that Freeman, the grantor, is bound by the decree and cannot have relief. Why then, under section 2842 of the Revision, are not plaintiffs equally bound? See McGregor v. McGregor, 21 Iowa, 441; Ferier v. Buzick et al., 6 id. 258; Cooly v. Brayton, 16 id. 10; Story’s Eq. Jur., § 405, and cases cited. But it is averred that the defendent fraudulently suffered them to remain in ignorance of his judgment, [309] whereby they were prevented from applying for a new trial and from filing their claim under the occupying claimant law for improvements. Fraud includes all acts, omissions and concealments which involve a breach of legal or equitable duty. Story’s Jur., § 187, and cases cited. But defendant having commenced his action against the owner of the legal title and recovered judgment was under no legal or equitable obligation to notify the grantpendente lite of the defendant that such judgment had been obtained. And his failure to do so constitutes no fraud. "We do not say what would be the effect of an affirmative misrepresentation, or of some positive act whereby plaintiffs were prevented from moving for the protection of their rights. The petition does not allege any such positive act. Further, it does not appear from the petition that the defendant, Ware, had any knowledge of the purchase of plaintiffs, or that, if he had such knowledge, that he knew or had reason to suppose them to be ignorant of the pendency of the suit against Freeman. The demurrer was rightly sustained. Affirmed.