Fenwick's Administrator v. Macey

Chief Justice Kobertsoh delivered the Opinion of the Court. On the 4th of March, 1839, John A. Iiolton, as administrator of William Fenwick, deceased, brought an action of detinue against Leander W. Macey, for several slaves purchased and held for more than five years by Macey, under a decree for foreclosure and sale, which had been obtained by the Bank of Kentucky against Alexander Macey, in the yeár 1830, on a bill filed by the Bank against the said Alexander, as mortgagor of the said slaves, by a deed alledged to have been executed in February, 1822. The administrator relied on the record of a suit in chancery instituted by his intestate in June, 1822, against the said Alexdnder Macey, for redeeming the said slaves and others, upon an allegation that the said intestate had, in the year 1807, mortgaged them to the said Alexander; and in which suit—n either the Bank of Kentucky nor the said Leander W. Macey being.a party—this Court, at its spring term, 1833, established the right to redeem, ■ as claimed in the bill, and the Circuit- Court, in the year 1835, rendered a final decree for. unconditional restitution o'f the slaves by Macey’s executors to Fenwick’s administrator. The parties submitted the case to the Circuit Judge, to be decided without a jury, and agreed that he might consider as evidence before him, so much only of the record of the suit by the Bank against A. Macey, dec’d. and of the record in the suit by W. Fenwick, dec’d. against the same, as would have been legally admissible though specially objected to as competent. A judgment having been rendered in bar of the action, we shall consider only one question in revising it, and that is,,whether upon the legal evidence submitted to the Judge below', he ought to .have considered L. W, [470] Macey as a pendente Hie purchaser, and, therefore, concluded by the decree in the case of “Fenwick vs Macey,” for, unless he should bo deemed to have been such a purchaser, his possession was, in law, as well as in fact, adverse to Fenwick’s title for more than five years preceeding the commencement of this action, and he is thereby protected, even though his derivative title, as acquired through the Bank of Kentucky, might be superior to that of Fenwick as original mortgagor. The purchaser under a decree foreclosing a mortgage, occupies the attitude of the mortgagee and acquires his tillé, and is not affected by the pendency of a suit to which the mortgagee is not a party. The doctrine of Us pendens applies to parlies only, and those deriving title through them after the lis pen-dens. Having acquired the title of the Bank, Is. W. Macey may not be affected by the decree against A. Macey, dec’d. otherwise than the Bank itself was affected by it, for if, as mortgagor, ante litem, the Bank had a right to sell the slaves notwithstanding tho subsequent lis pendens and unaffected by it, surely any stranger had- an equal right to buy and hold all the title thus sold as effectually as he might have done had the sale been prior to the commencement of the suit of W. Fenwick vs A. Macey. And if, as alledged, the Bank held a forfeited unsatisfied mortgage, executed in good faith, antecedently to the pendency of that suit, it was not, in any available sense, a purchaser pendente lite, and had a right to enforce its mortgage and pass its legal title unaffected by the Us pendens, succeeding the date of its mortgage. Tho doctrine that any stranger who, during the pendency of a suit for property, acquires a claim to that property or any portion of it, from the unsuccessful party to the suit, shall be concluded by the judgment or decree rendered therein, against that party, is founded on policy or rather necessity, otherwise litigation might be interminable and unavailing. The principle of the doctrine is well defined and cannot be expanded so as to embrace a stranger whose right existed when no suit was pending. A suit for property concludes only the parties thereto, and all persons deriving title from the unsuccessful party during a diligent prosecution of the suit. And a person, who is neither a party nor privy, and who, as between himself and the party in possession of the subject of litigation, has the right of property and possession neither derived from either of the parties nor acquired since the lis pendens between them, may certainly take the posses' [471] sion, during the pendency of the suit, without subjecting himself to any of the consequences of a purchase or intrusion pendente lite, The principle of the anomalous doctrine of lis pendens, is totally and obviously inapplicable to such a case, and has never, so far as we know, been misapplied to such an one by any Court of Justice in the world. And this much had been virtually decided by this Court 'in the case between the present parties, reported in -9 Dana, 198. The record of a suit and any fact appearing therein, is not evidence against one not a party thereto— Nor is a copy from an official copy competent evidence. Rut the-facts in that case wore hypothetical, and have not, in our opinion, breen sufficiently established in this case. The record of the case of the Bank vs Macey was not legal evidence against Fenwick’s administrator, of the title of the Bank. No other evidence of that .title was offered in the Court below. There was then, according to the agreed case, no legal proof of even the date of the alledged mortgage to the Bank; because a copy of a copy was not admissible, and the record exhibited only a copy, cirtified by the Circuit Court clerk, of another copy which had been certified by the clerk of the County Court. This cannot, in any allowable or consistent view of it, be better or more credible than a copy taken a,nd certified by the recording clerk, from another copy which he had taken from the original in his office. The law does not go one step further than a copy from the original; because, going beyond that limit, would increase the chances of error to an extent deemed unnecessary and perilous. As, therefore, it does not judicially appear in this case; that the Bank was a purchaser, nor that its title accrued before the institution of Fenvñck’s suit against Macey, the defendant in error has failed to show that he should not be treated as a purchaser, pendente lite, as he certainly must be if the Bank itself was such a purchaser. For if the Bank obtained its mortgage from A. Macey, the unsuccessful party, since the commencement of Fenwick’s suit against said Macey, the derivative purchaser can be in no other or better condition thanihe Bank itself would have been in had it made no sale. . Owsleij and S. Todd for plaintiff; Crittenden and More-head Reed for defendant. Claiming, therefore, as a purchaser under a mortgage to the Bank, and having made the purchase whilst the suit of Femoick vs A. Macey was pending, the defendant in error must, prima facie, be deemed a purchaser pendente lite, subject to the decree rendered in Fenwick’s favor, unless he had shown that the Bank had a title acquired before the commencement of that suit. It seems to this Court, therefore, that the judgment of the Circuit Court is erroneous. But as the agreement to dispense with a jury implied, from the terms and manner of it, that the parties intended to stand, as to their ulterior rights, in all respects as they would have stood had there been a jury and verdict, and as the Circuit Judge erred in admitting incompetent evidence, we shall xernand the case for a new trial, unaffected by that agreement which should now be deemed functus officio. Judgment reversed and cause remanded for a re-trial.