O'Brien v. Putney

Rothrock, J. i. lis pbntion affecting real action for sale ofintoxicatmg liquors. Some question is made as to the sufficiency of the' injunction bond, and as 'to the proper venue of the action, but as in our opinion the cause must be determined upon the question as to the plaintiff’s estate. '. . right to the mi unction upon a bond in anv ° . J , amount, or m any jurisdiction, these minor questions need not be determined. We will at once proceed to consider the important, and as it appears to us decisive, question in the ease. It is this: Is the title of the plaintiff, being a purchaser of the property in controversy pending the action, prior and superior to the decree against O’Brien and the property? Section 2628 of the Code provides “ that when a petition has been filed affect [294] ing 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” It is urged by counsel for ajjpellant that the jmmsions of this statute have no application to this case because the claim of M. A. Putney for damages was no lien upon the premises in controversy until judgment was rendered. It is said that the doctrine of lis pendens applies only where there is at the commencement of the suit a present vested interest, claim, or lien, in or upon the actual subject-matter of the action. It is true that in Loan v. Hiney, 53 Iowa, 89, it was held that under section 1558 of the Code the owner of the proj>erty sought to be charged was entitled to a jury trial, and that the lien is established by the statute when the judgment is rendered, and in Goodenough v. McCoid & Phillips, 44 Iowa, 659, it is said “that the lien does not attach at the time the party violating the law does an act which renders him liable to a fine, costs or a judgment, but at the time the fine or costs are assessed, or the judgment is rendered.” But the question as to the rights of one who purchases after suit commenced is not involved in either of those cases. In actions of this character it is proper to join all .of the parties against whom relief is sought for the same wrong, including the owner, of the property sought to be charged. See La France v. Krayer, 42 Iowa, 143. Now, while it is true no lien is established or exists until judgment, yet when the action is commenced, by joining the owner of the property, averring his consent to and knowledge of the unlawful sales, and describing the property, and asking that it be subjected to the payment of the claim, the action affects real estate within the meaning of the statute. It is a claim for a lien asserted against specific property. In Freeman on Judgments, section 96, it is said: “In order to bring the doctrine [295] of Us pendens into effect it is indispensable that the litigation should be about some specific thing, which must necessarily be affected by the termination of the suit. It does not apply to an action for divorce and for alimony to be paid out of the husband’s estate, because such a suit does not apply to any specified part of the husband’s estate, real or personal. The judgment which may be obtained may, from the docketing thereof, constitute a lien on certain property; but in this as well as in all other respects it no more constitutes a Us pendens than a suit upon a promissory note, or any other sufficient cause of action.” In the case at bar it appears to us we have all the requisites necessary to the existence of Us pendens. O’Brien was a proper party. It was necessary that the property against which the claim for a lien was asserted should be described, and it was described particularly, and we think the pending of the action was a warning to strangers not to intermeddle at their peril. In Loan v. Hiney, supra, it was determined that there was no equitable issue for trial in an action of this character. The action of which this is a supplement, so far as it affected O’Brien, was tried as an equity cause without objection. It was appealed by O’Brien and presented to this court for trial anew, and it was so tried. The defendant O’Brien thereby waived all objection to the kind of proceedings. Tugel v. Tugel et al., 38 Iowa, 349. Van Orman v. Merrill, 27 Id., 476. The action must, therefore, for the purposes of this case, be held to have been properly tried in equity. But however that may be, the doctrine of Us pendens is not solely confined to actions in chancery. It is a rule both at law and in equity. Freeman on Judgments, section 192, and authorities cited. Affirmed.