Kelley v. Culver's Admr.

— 247 — Opinion of the court by JUDGE O’REAR Reversing. tfhis suit was begun in 1896 by Jacob Culver’s administrator to settle his estate. There was not enough personalty to pay the debts of the decedent, and his lands were described in the petition with the vie,w to selling enough of them to pay the indebtedness. The heirs at law and certain creditors, including' appellees Bowling & Greenwell, were made defendants, and had actual notice of the pendency and nature of the suit. A reference was had to the master commissioner November 14, 1896, to audit the claims against the estate. On the 29th day of May, 1897, the commissioner, who had previously publicly advertised for claimants, filed his report, showing all claims presented. There were no exceptions to this report. The court decreed a sale of enough of the land, after the allotment of a homestead to-the widow, to satisfy the claims reported by the commissioner. The laúd was sold in August, 1897, and reported to the court at the following October term. Upon exceptions filed to the sale by certain of the. heirs, it was set aside,, as was the former judgment of sale, for a misprision. A resale was adjudged to pay the indebtedness allowed. That judgment was 'entered March, 1898. The sale was made under it May 9, 1898, and was confirmed, without exception, May 28, 1898. It was not necessary, as developed by this sale, to sell all the decedent’s land to pay the indebtedness presented against the estate. On the 5th day of October, 1898, appellant bought the remainder of the land from the heirs at law, paid them the purchase money — an adequate price therefor — and took their deed of conveyance.. On November 11, 1898, a claim for $117.84 was filed in court on this action by Bowling & Greenwell. They sought to have enough of the remaining land — that sold and conveyed to-appellant by the heirs October 5, 1898 — sold to satisfy their248 claim. Appellant resisted the application on the ground that he was an innocent purchaser for value, and without notice of Bowling & Greenwell’s claim. He also pleaded their silence and delay in presenting their claim against the estate as an estoppel. The circuit court subjected the land to the payment of the claim. Bowling & Greenwell resided and did business in the county where the land lay, and in which the suit was pending. It is insisted by appellee that appellant was a Us pendens purchaser, and took the title of the heirs subject to the right of the creditors of their ancestor to subject his property in this action to pay his debts. Section 2087, Kentucky Statutes, 1899, is relied on. It is: “When the heir or devisee shall alien, before suit is brought, the estate descended or devised, he shall be liable for the value thereof, with legal interest from the time of alienation to the creditors of the decedent or testator; but the estate so aliened shall not be liable to the creditors in the hands of a bona -fide purchaser for a valuable consideration, unless action is instituted within six months after the estate is devised or descended, to subject same.” This section was not intended to create a lien upon the lands descended or devised, for the payment of the ancestor’s debts, for a longer period than for six months after an action might have been begun to settle the estate and subject the land. It merely held the estate subject to the decedent’s debts until a reasonable time — six months — within which a Us pendens lien might be created against it. As to the validity and effect of the Us pendens after it was begun, the section did not change the common-law rule. Whether the creditor of the estate was made a party to the petition in the settlement suit, or not, can not affect the validity of the Us pendens, for the suit was brought for his benefit, in part, and by statute (section 432, Civ. Code Prac.) — 249 — his merely filing his claim therein made him a party. Then the allegations of the petition favorable to his proceeding became adopted as allegations on his behalf. That he was made a party to the petition, in fact, merely brought actual notice to him, earlier than the commissioner’s- advertisement could, of the pendency and nature of the suit, of its privileges to .him, and of the necessity of his availing him-. self of it if he would share in the distribution of its assets, and become entitled to all the other benefits that might flow from the Us pendens. His rights and his duties, as well, were, those of an actual party to the suit. To obtain the benefits of a Us pendens, the party asserting it must have not only a suit in which a relief in rem is sought against specific property sufficiently identified by the record, to which the other claimant or title holder must be a party in fact, but he must prosecute his suit with reasonable diligence. Concerning this -rule, and the limitations just adverted to, this court, in Clarkson v. Morgan’s Devisees, 6 B. Mon., 447, said: “It has-ever been regarded as a harsh and rigorous rule in its operation upon the rights of ~bona fide purchasers. The rule was dictated by necessity, as indispensable to the rights of litigants, and as the means of terminating litigation about the matter in contest. But being a hard rule, and operating with great severity, in many instances, upon the rights of innocent purchasers, it should never be carried, in favor of a complainant asking its enforcement,' beyond the purpose and reason of its' creation. To entitle him to enforce it against Iona fide purchasers, he has been held to reasonable diligence in the prosecution of his suit, and should be guilty of no • palpable slips for gross irregularities in the management of the same, by which injury may accrue to the rights of others' who are not parties.” Also, see, Watson v. Wilson, 2 Dana, 406, — 250 — 26 Am. Dec., 459; Erhman v. Kendrick, 1 Metc., 146; Debell v. Foxworthy’s Heirs, 9 B. Mon., 228. The doctrine as announced in Clarkson v. Morgan’s Devisees, supra, is approved by the text in Freeman on Judgments, section 208, and sustained by the authorities there cited. It is founded in part upon the idea that a stranger to a suit should not intermeddle with its subject-matter,, except upon pain that he be bound by its conclusion; that he must take notice of its existence, and to that end he is required, at his peril, to exercise due diligence in informing himself as to its existence and nature. It would be an anomalous rule, indeed, that would require diligence of the innocent stranger, while condoning the most culpable negligence of.the controlling party to the suit. The doctrine of Us pencLens does not depend at all upon, nor is it affected by, the actual knowledge of the stranger as to the purposes of the suit, or the specific facts to be gathered from its record. He is bound, if bound at all, by the sufficiency of the record alone. So that if the suit be permitted to abate, or revivor be not had for unreasonable length of time (Watson v. Wilson, 2 Dana, 406), or if it is not presented with reasonable diligence, it -is the same as if the suit had never been brought, so far as, the doctrine under discussion is concerned. x In the case at bar, the creditors, Bowling & Greenwell, were named and joined in the suit as creditors, and thereby, as well as by the advertisement of the commissioner, were called- upon to file their claim as creditors, if they had any, and desired to avail themselves of the benefit of the action. They, without excuse or explanation, failed to do so till after the • commissioner had reported all claims ascertainable, till after two judgments of sale had been rendered in the action, till after the last sale to pay the debts of the decedent and the costs of the suit and of the administration — 251 — had been confirmed, and till after the heirs had sold and conveyed to an innocent purchaser for value the residue of the land, after deducting all that was necessary to discharge the known liabilities of the estate; and not till more than two years after they might and should have set up their claim do they attempt to assert it against this land. By their prolonged silence under circumstances ordinarily calculated to produce action, they not unreasonably produced the impression upon any one investigating the record that they were not in fact creditors, or that they .elected not to avail themselves of the purposes of the suit. It is equivalent to their having said to intending purchasers from the heirs at law: “I have no claim against this land.” For silence may be as potent a disclaimer, under conditions calling for action, as would be a positive declaration. “No one is permitted to keep silent when he should speak, and thereby mislead another to his injury.” 2 Herman on Estoppel, p. 1069. The admirably clear text of 1 Herman on Estoppel and Res Adjudicata, section 6, thus epitomizes this branch of estoppel: “If a man has led others into the belief of a certain -state of facts by conduct of culpable negligence, calculated to have that result, and they have acted on that belief to their prejudice, he shall not be heard after-wards, as against such persons, to show that state of facts did not exist. A man is not permitted to charge the consequences of his own fault on others, and complain of that which he has himself brought about.” It i-s very earnestly claimed that the allegations of the petition filed by the administrator brought to settle the estate were enough to put appellant upon notice as to the existence of Bowling & Greenwell’s claim, as if his knowing of it affected him in the least. The language of the petition that is referred to is this very vague and indefinite — 252 — averment: “The defendant, Mary Culver, holds a mortgage on a part of the land hereinafter described, and which was a debt against said decedent amounting to about $450, and which is due and unpaid. And the defendants, Bowling •& Greenwell, and Dr. James Muir and said Mary Culver are the only creditors of said decedent known to plaintiff.” It is to be observed that the section of the statute before referred to (section 2087), affecting purchasers for value from the heir at law or devisee, does not require that the purchaser shall have been an “innocent” purchaser, or one without notice of the ancestor’s indebtedness. It merely requires that he be a purchaser in good faith and for value. If, after the six months mentioned, one becomes such purchaser, it does not matter how much he knows about who were the creditors of the decedent. The only thing that can at that time affect the land as a lien is a valid lis pendens. There is no question of fraud involved in this suit. Upon the facts recited, we are of the opinion that the pendency of the action ceased to constitute' a lis pendens lien upon the land, by reason of Bowling & Greenwell’s negligence in failing for so long to present their claim, and to prosecute it with reasonable diligence. The judgment of the circuit court is reversed, and the cause is remanded for proceedings not inconsistent herewith. Whole court sitting. Petition for rehearing by appellee overruled.