Jones v. McNarrin.

through all the cases. Nor can parol proof be admitted to show what property was designed to have been levied upon by the creditor. Young v. McGown, 59 Me. 349, for excellent reasons denies

such a power.

The authorities are uniform upon this branch of the case, illustrating it under various different phases of fact. A recorded deed of "forty-five feet in the rear of lot one in block twenty," is not sufficient to lead a subsequent purchaser to inquire, and thereupon. learn, that the land is not "in block twenty," but in block sixteen. Rodgers v. Kavanaugh, 24 Ill. 583. The record of a deed of land described as "lot and six," does not impart constructive notice to a subsequent purchaser, that lot one in block six was intended by the description. Nelson v. Wade, 21 Iowa, 49. Where a deed of the "east" half of a lot is recorded as a deed of the "west" half, a subsequent purchaser of the east half, without actual notice of the fact, will be protected. Sanger v. Craigue, 10 Vt. 555. A mistake in the number of a section is not cured by a reference to the land as that patented to A B, for service in M's company in the late war, without proof that there was but one person answering to that description, so as to render an alteration of the number immaterial. Montag v. Linn, 23 Ill. 551. In the case of Loomis v. Jackson, 19 Johns. 449; s. c., 18 Johns. 81, the court allowed the number 51 to be rejected from a description, where the grantor owned lot 50 but not lot 51, and where the bounds were minutely described and applicable to the lot 50 and not to the other lot. The court there say: "the second purchaser could not possibly have been misled had he consulted the registry." Worthington v. Hylyer, 4 Mass. 196, Madden v. Tucker, 46 Me. 367, and Peck v. Mallams, 6 Seld. 509, are also pertinent cases hereto. And see Whitman v. Weston, 30 Me. 285.

The point already discussed is presented in another form. At the time the defendant's predecessor in title received his conveyance from Buck, there was pending a real action by the demandant against Buck for the premises levied on, and it is contended that this defendant is bound by the result of that suit, by force of the doctrine of notice by the lis pendens. The rule of lis pendens is undoubtedly one of the well-settled doctrines of this court, both at law and in equity. The defendant in this suit is bound by such notice as the record of that case could import to his predecessor at the date of the conveyance from Buck. Precisely the same rule

applies as to this kind of notice as to notice by a recording in the registry of deeds. The effect of lis pendens and the effect of registry are in their nature the same thing. They are only different examples or instances of the operation of the rule of constructive notice. They are record notices. One is a record in one place and the other a record in another place. A purchaser must consult both places of record for light and information. And he is only bound by such information as such record discloses to him at the time he takes his deed. If the description of the land, intended to be conveyed by a deed or designed to be demanded in a writ, is insufficient to inform a purchaser, or put him upon inquiry that will inform him, as to what the premises deeded or demanded may be, the purchaser will not be bound by either form of notice. Therefore the argument and the authorities adduced in support of the point previously discussed in this opinion will have equal force and application here.

What, then, did the pending suit disclose to the purchaser? Precisely what the registry of deeds did and no more. The description in the levy and that in the writ exactly correspond. There is nothing to indicate the slightest difference. It was "29" that was levied upon, and "29" that was demanded. If the defendant was not estopped to claim the locus by the one record, he cannot be by the other.

But it is said, that the opinion of the court in the case alluded to, Jones v. Buck, 54 Me. 301, states that the word 29 might be rejected as unessential and inconsistent, and that the execution was correctly enough levied on 32. There are abundant answers to this position from the standpoint occupied by this defendant. 1st. The opinion was based, as it turns out, upon a misapprehension of the real facts, if the proof in the present case is true. The statement in that case 18, that the rejection might be made upon the supposition that none of the other calls apply to lot 29. It now, however, appears that, instead of none of the calls applying to 29, they all do perfectly. 2nd. What was said by the court in that respect related only to the argument or grounds of the opinion, and was in no sense a part of the strict record of the case. The decision was merely that the action was maintainable. The writ declared for 29. The demandant recovered 29, and had habere facias for the same. And the opinion of the court was, that it would be a good description of 32, provided that a certain assumption of

Jones v. McNarrin.

facts was true. But a writ of habere facras that described the premises in the exact words of the levy could give no more right of possession than the levy gave. Finally: a conclusive answer to this position is, that the opinion was not a decision of record at the time that the title, under which the defendant claims, accrued. It was not a decision affecting him or those claiming before him under Buck. The action of Jones v. Buck was entered in court in January, 1864. Buck conveyed in July, 1864. The action came to trial at the October term, 1865. Judgment was rendered in November, 1867, and the opinion of the court not published till 1868. How could Buck's grantee, in 1865, anticipate the occurrences that took place afterward, or be bound by them?

The position which is taken by us upon these facts is well sustained by numerous authorities, from some of which we quote. For a lis pendens to affect a purchaser, there must be something in the pleadings, at the date of the purchase, to point his attention to the property purchased, as the identical property in litigation. Lewis v. Mew, 1 Strobh. Eq. 180. A purchaser will not be affected with notice by a bill charging the vendor with a general misapplication of the property of the complainant, without specifying what the property was. Price v. White, 1 Bailey's Eq. 244. Notice to a purchaser, arising from a bill filed, should not be extended beyond the property which is plainly the subject of the suit. Griffith v. Griffith, 1 Hoff. Ch. 160. The same rule was distinctly admitted by Chancellor KENT in Green v. Slayter, 4 Johns. Ch. 38. He held that an averment in a bill that "divers lands in Cosby's manor" were held in trust for the complainant, was sufficient to affect a purchaser from the trustee with notice for the reason that, as there were no detailed and particular descriptions, the purchaser had a warning of a general character to see and ascertain what the parcels were. And of this case it was said in Griffith v. Griffith, supra, that in the opinion Chancellor KENT was obviously pressed by the argument of insufficiency of description. In Miller v. Sherry, 2 Wall. 237, it was held that a creditor's bill, to be a lis pendens, and to operate as a notice against real estate, must be so definite in the description of the estate as that any one reading it can learn thereby what property is the subject of the litigation. The American editors of Leading Cases in Equity (part one of vol. 2, p. 12) state the rule in this way: “A purchaser will also be affected with constructive notice, whenever

Jones v. McNarrin.

his purchase is made during the prosecution of a suit brought to enforce an adverse claim or title, which is set forth with sufficient certainty and distinctness to apprise him of its bearing on the property purchased. The constructive notice, arising from the pendency of a suit, is subject to those limitations which apply to the doctrine of notice generally. It must be sufficiently certain to give the means of distinct and intelligible information of the matter to which it relates." The American editor of Hill's Treatise on Trustees, 511, in note, enunciates the rule thus: "The bill must refer with sufficient certainty to the lands in question, at least to put the purchaser on inquiry." Freeman on Judgments, § 197, regards the rule of lis pendens invoked, "if the land in all probability comes within the description, and if prospective purchasers, upon reading the bill, are advised by it that the land with which they propose to meddle may be, and probably is, a parcel of the lands in litigation." Justice STORY, in Dexter v. Harris, 2 Mas. C. C. 531, probably states the rule of constructive notice as acceptably as it can be compassed in any general terms. "The doctrine upon this subject as to purchasers." he says, "is this, that they are affected with constructive notice of all that is apparent on the face of the title deeds under which they claim, and of such other facts as those already known necessarily to put them upon inquiry for, and as such inquiry, pursued with ordinary diligence and prudence, would bring to their knowledge."

It was urged, at the argument, that this conclusion would bring about a contrariety of decision by the court upon the same subjectmatter. Not so. The former case was between other parties, involved other facts, and determined other questions. Courts can settle cases only upon such facts as are brought before them. The very idea of constructive notice is that the immediate parties are bound by a proceeding, and that other persons may or may not be, according to circumstances. The former decision was not one in rem, but merely disposed of a question which arose between the parties in that suit.

There could be no judgment valid against the world, without notice to the world. The realty was never in the possession of the court. Freeman on Judgments, § 207. The consequences which follow the accidents that have occurred in these proceedings are not to be borne by the defendant. The error in the return might have been avoided, had more vigilance been exercised by the officer. VOL. XXVIII-10

Jones v. McNarrin.

No possession was taken by the demandant, either under the levy or the habere facias issued to him, to indicate what land he claimed. When he sued for possession, his declaration described only lot 29, when, upon his present theory, he sought to recover lot 32, making no amendment of his declaration before judgment was had.

If the testimony at this or the former trial was not satisfactory and full, it behooved him, if he could, to make it so. In Etty v. Bridges, 2 You. & Coll. 486, the Vice Chancellor remarks: "A first purchaser, if he cannot acquire possession, must go as near it as he can * * must set his mark upon the property or do every thing reasonably practicable to prevent it from being dealt with in fraud of an innocent purchaser afterward.”

Plaintiff nonsuit.

APPLETON, C. J., WALTON, DICKERSON and VIRGIN, JJ., concurred.

NOTE BY THE REPORTER.-See Taylor v. Harrison (47 Tex. 454), 26 Am. Rep. 304, and note, 310.

In Todd v. Outlaw, 79 N. C.235 it was held that the execution of a mortgage deed, executed without the State, the execution whereof is not proved according to law, is inefficient to pass title as against creditors or subsequent purchasers for value. The court said:

"It is in cases where actual notice is so clearly established as to make it fraudulent in the purchaser to take and register a conveyance in prejudice of the known title of another, that the registered deed will be permitted to be affected With this limitation it is only a duly registered mortgage that will affect the subsequent purchaser with notice. Fleming v. Burgin, 2 Ired. Eq. 584; Leggett v. Bullock, Busb. 288; Robinson v. Willoughby, 70 N. C. 358. It is not pretended that the plaintiffs had any such, or other notice than that which might have been derived from the imperfect registration of the prior mortgage. That a mortgage registered in a manner not authorized by law is neither actual nor constructive notice, is decided in DeCourcy v. Barr, Busb. Eq. 181. Barr executed three mortgages. The third mortgagee sought to redeem the first and avoid the second mortgage upon the ground that though registered prior to his own, it was upon an insufficient probate, and therefore inoperative as to him. The defect of probate consisted ouly in this, that though taken in regular form before a duly appointed commissioner for the State, resident in New York, the deed proved was the deed of a resident of this State, for land in this State, whereas the statute only authorized the commissioner to take probate of deeds of non-residents. It was insisted in that case, as it has been here, that this mortgage was spread upon the record, and for all useful purposes had the same notoriety as if it had been duly proven, so that it was urged the objection was merely technical But the court said that what was not done in due form was not done at all in contemplation of law, and that the plaintiff therefore might stand on legal rights and seize a plank in a shipwreck. It was also held that the adjudication of the clerk that the deed was duly proved, will not aid, where the certificate of the commissioner is annexed to the deed and shows that he was incompetent to take the probate. The same rule as to actual and constructive notice prevails in those States where registry laws are similar to ours; their court holding that express notice of an unrecorded mortgage will not invalidate one which is duly recorded Stansell v. Roberts, 13 Ohio, 148; Mayham v. Coombs, 14 id. 428; Le Neve v. Le Neve, 18. L. C. American notes; Coot's Law of Mortgages, 370, and rotes to page 384.

In Wasson v. Connor, 59 Miss. 351, it was held that an acknowledgment to a deed of trust, taken by a chancery clerk who is cestui que trust in the deed, is void, and the registration of such a deed is not constructive notice.