Glattli v. Bradford

Smith, O. J., delivered the opinion of the court. Appellee filed his bill in the court below, alleging that he was the owner of the land in controversy, and praying that the claims of appellants thereto.be canceled as clouds on his title. From a decree in his favor this appeal is taken. [581] The facts are that in 1891 appellee, who was then the owner of the land in controversy, sold and conveyed it to a man named Schell, for a certain price to he thereafter paid. In 1894 Mrs. Bradford, who the bill alleges then owned the debt incurred by Schell in the purchase of this land, sued out an attachment at law against him, he being a nonresident, which attachment was levied on the land in controversy. When this attachment was sued out, a Us pendens notice was filed and recorded. Afterwards these parties seem to have compromised their differences,' and the following order was entered upon the minutes of the court: . “C. C. Bradford v. Harmon Schell. Dismissed .at plaintiff’s costs, upon defendant delivering to plaintiff or her legal attorneys deeds to the land in controversy. ’ ’ No deed was ever executed pursuant to this agreement ; but in 1903, eight years thereafter, Schell executed and delivered a deed to the land to appellee herein, the husband of the plaintiff in the attachment suit. Why this deed was made to appellee, instead of his wife, does not appear from the record. While this attachment suit was pending, Schell conveyed the land, for a valuable consideration, to John W. Munson, and through him appellants claim by mesne conveyances. Neither Munson nor appellants had any actual knowledge or notice of the attachment suit, or of the agreement under which it was dismissed, having only such notice relative thereto as they are charged with by law by reason of the filing of the lis pendens. The filing of a lis pendens does not prevent or make unlawful the sale of the land to be affected by the suit in which the notice is filed, except to the extent that parties purchasing the land pendente lite take it subject to the rights of the parties to the suit as it may be finally determined. In the case at bar, Munson purchased the land subject only, in so far as this attachment suit is concerned, to the right of the plaintiff therein to have it [582] sold for tlie payment of her debt, should judgment be rendered in her favor, in which event he would have had the right to pay off the judgment and free the land from the lien thereof. He could be divested of title, as a result of this suit, only by a sale of the land made in the manner provided by law pursuant to a judgment therein rendered. He is not bound by the agreement, in which he did not participate, made by the parties to the suit, to otherwise dispose of the land, and the fact that this agreement was approved by the court in which the case was pending is immaterial. Appellants have, of course, succeeded to all the rights which Munson had in the land. The fact that, when Munson purchased the land, it was subject to a vendor’s lien in favor of the plaintiff in the attachment suit, is immaterial. The purchaser, of land subject to a vendor’s lien can be divested of his title thereto, by virtue of this lien, only by means of a sale made pursuant to a decree entered in a proceeding, to which he is a party, instituted for the purpose of foreclosing the lien. Reversed and bill dismissed; appellee to pay costs here and in the court below. Dismissed.