Seawell, J.
This ease comes here upon tbe appeal of tbe defendants from a judgment overruling tbe demurrer above set out. Boiled down, tbe demurrer is grounded on these propositions: First, that the complaint is bad for misjoinder of causes of action since, it is contended, tbe plea of mental incompetency of tbe grantor and tbe plea of undue influence
on the part of the grantees are inconsistent and may not be joined in the same action under our statute, G. S., 1-123; and second, that the complaint discloses that defendants bought the property in dispute when there was no action pending or effective notice of
Us pendens,
and they are, therefore, as far as this action is concerned, innocent purchasers without notice.
1. The demurrer for defect in joinder of causes of 'action was properly overruled. Mental incompetency to make a deed and that weakness of mind which often renders the subject especially amenable to undue influence are not too far apart psychologically or too radically inconsistent as to require their assertion in separate actions.
Shuford v. Yarborough,
198 N. C., 5, 150 S. E., 618;
Sprinkle v. Wellborn,
140 N. C., 163, 52 S. E., 666;
Worth v. Trust Co.,
152 N. C., 242, 67 S. E., 590;
Craven County v. Investment Co.,
201 N. C., 523, 524, 160 S. E., 753. In the last cited case it is said that the statute relating to joinder of causes of action must be interpreted in the light of the equity practice. The joinder is common practice.
Wessell v. Rathjohn,
89 N. C., 377, 16 Am. Jur., pp. 461, 462.
2. In their second objection, appellants raise the question as to the continued effectiveness of the original notice of
lis pendens
as a protection to the plaintiffs in the present action.
In
Goodson v. Lehmon,
224 N. C., 616, 31 S. E. (2d), 756, the former appeal, the judgment of the lower court overruling the demurrer to the evidence was reversed. The case at bar is brought upon the same cause of action under authority of G. S., 1-25, which permits a “new action” to be brought within one year when the action has been nonsuited or dismissed without a hearing on the merits. It is contended by the appellants that the reversal constituted a final judgment in this Court, terminating the action at that time, and with it the effectiveness of the original notice of
lis pendens;
or that, if not so, at least when the judgment was entered in the Superior Court on 15 January, the action and
lis pendens
both terminated, giving them .by relation the status of innocent purchasers without notice, although they actually purchased during the pendency of the prior proceeding.
This Court may, of course, render a final judgment here in proper cases, and occasionally does so; but it is not the practice to render judgment here unless it may be necessary to protect some right of the litigant parties in danger of
ad interim
defeat, or where it is demanded by the public convenience or welfare. Ordinarily, the opinion of the Court is certified down to the Superior Court of 'the county whence the appeal came, where a judgment in accordance with the opinion is entered. In that event, while the certified decision is binding on the court of original
jurisdiction, the cause is not terminated until the authority of that court has been exercised. There is nothing in the formula used by the Court on the former
appeal
—Goodson
v. Lehmon, supra,
—which indicates any intention to depart from the usual practice.
Cf. Griffin v. R. R.,
150 N. C., 312, 315, 64 S. E., 16;
Hospital v. Florence Mills,
186 N. C., 554, 555, 120 S. E., 212;
Davis v. Storage Co.,
186 N. C., 676, 683, 120 S. E., 462. The judgment of reversal was not final until its entry in the Superior Court on 15 January, at the instance of defendants.
Allen v. Gooding,
174 N. C., 271, 273, 274, 93 S. E., 740;
Smith v. Moore,
150 N. C., 158, 63 S. E., 735. The appellants, the present defendants, were therefore, at the time they acquired title, purchasers
pendente lite.
The question whether under these circumstances the original notice of
lis pendens
is effective to protect plaintiffs where the litigation is renewed within the permissive period after dismissal, reversal or nonsuit otherwise than on the merits, has not been decided here. Elsewhere authorities are in conflict. But we think the better reasoning supports the view that where there is identity between the causes of action, and a procedural continuity arising out of the legal right to renew the litigation on the merits, the original
lis pendens
will be effective in the “new action,”
where the defendants were pendente lite purchasers in the original proceeding.
On this principle, it has been held, we think with reason, that where the decree of dismissal expressly reserves to the plaintiff the right to begin another proceeding, such grant of authority continues the operation of the
lis pendens.
34 Am. Jur., Lis Pendens, sec. 32; 38 C. J., Lis Pendens, sec. 66;
Loomis v. Davenport,
175 F., 301, 307;
Bishop of Winchester v. Paine,
11 Ves. Jr., 200.
A fortiori,
since G. S., 1-25, giving such permission as a matter of law, must be read into every final judgment of nonsuit entered by any court, and of this law all persons affected must take notice, the same rule may apply.
Our courts have required the strictest factual identity -between the original and the renewed proceeding, and have frequently, not, we think, inadvertently or casually, referred to the “new action” begun under G. S., 1-25, as a continuation of the original action.
“The time is extended because the new action is considered as a continuation of the former action and they must be substantially the same, involving the same parties, the same cause of action and the same right, and this must appear from the record in the case and cannot be shown by oral testimony.” McIntosh, Civil Procedure, p. 119, sec. 126;
Young v. Atlantic Coast Line R. Co.,
189 N. C., 238, 126 S. E., 600;
Quelch v. Futch,
174 N. C., 395, 53 S. E., 899;
Colby v. City of Portland,
89 Oregon, 566, 174 P., 1159, 3 A. L. R., 819. See
Van Kempen v. Latham,
201 N. C.. 505, 513, 160 S. E., 759.
On this view defendants, who were
lis pendens
purchasers during the original proceeding, would seem to have a still more unfavorable position, with reference to
lis pendens,
upon renewal of the litigation.
In
Shufeldt v. Jefcoat,
50 Okla., 790, 151 P., 595, the Court said: “A plaintiff in a suit to cancel a deed who dismisses the action without prejudice and subsequently brings a new suit on the same cause of action some two months later, does not lose the benefit of notice of the action as to one who purchases during the pendency of the suit and prior to the dismissal.”
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Seawell, J.
This ease comes here upon tbe appeal of tbe defendants from a judgment overruling tbe demurrer above set out. Boiled down, tbe demurrer is grounded on these propositions: First, that the complaint is bad for misjoinder of causes of action since, it is contended, tbe plea of mental incompetency of tbe grantor and tbe plea of undue influence
on the part of the grantees are inconsistent and may not be joined in the same action under our statute, G. S., 1-123; and second, that the complaint discloses that defendants bought the property in dispute when there was no action pending or effective notice of
Us pendens,
and they are, therefore, as far as this action is concerned, innocent purchasers without notice.
1. The demurrer for defect in joinder of causes of 'action was properly overruled. Mental incompetency to make a deed and that weakness of mind which often renders the subject especially amenable to undue influence are not too far apart psychologically or too radically inconsistent as to require their assertion in separate actions.
Shuford v. Yarborough,
198 N. C., 5, 150 S. E., 618;
Sprinkle v. Wellborn,
140 N. C., 163, 52 S. E., 666;
Worth v. Trust Co.,
152 N. C., 242, 67 S. E., 590;
Craven County v. Investment Co.,
201 N. C., 523, 524, 160 S. E., 753. In the last cited case it is said that the statute relating to joinder of causes of action must be interpreted in the light of the equity practice. The joinder is common practice.
Wessell v. Rathjohn,
89 N. C., 377, 16 Am. Jur., pp. 461, 462.
2. In their second objection, appellants raise the question as to the continued effectiveness of the original notice of
lis pendens
as a protection to the plaintiffs in the present action.
In
Goodson v. Lehmon,
224 N. C., 616, 31 S. E. (2d), 756, the former appeal, the judgment of the lower court overruling the demurrer to the evidence was reversed. The case at bar is brought upon the same cause of action under authority of G. S., 1-25, which permits a “new action” to be brought within one year when the action has been nonsuited or dismissed without a hearing on the merits. It is contended by the appellants that the reversal constituted a final judgment in this Court, terminating the action at that time, and with it the effectiveness of the original notice of
lis pendens;
or that, if not so, at least when the judgment was entered in the Superior Court on 15 January, the action and
lis pendens
both terminated, giving them .by relation the status of innocent purchasers without notice, although they actually purchased during the pendency of the prior proceeding.
This Court may, of course, render a final judgment here in proper cases, and occasionally does so; but it is not the practice to render judgment here unless it may be necessary to protect some right of the litigant parties in danger of
ad interim
defeat, or where it is demanded by the public convenience or welfare. Ordinarily, the opinion of the Court is certified down to the Superior Court of 'the county whence the appeal came, where a judgment in accordance with the opinion is entered. In that event, while the certified decision is binding on the court of original
jurisdiction, the cause is not terminated until the authority of that court has been exercised. There is nothing in the formula used by the Court on the former
appeal
—Goodson
v. Lehmon, supra,
—which indicates any intention to depart from the usual practice.
Cf. Griffin v. R. R.,
150 N. C., 312, 315, 64 S. E., 16;
Hospital v. Florence Mills,
186 N. C., 554, 555, 120 S. E., 212;
Davis v. Storage Co.,
186 N. C., 676, 683, 120 S. E., 462. The judgment of reversal was not final until its entry in the Superior Court on 15 January, at the instance of defendants.
Allen v. Gooding,
174 N. C., 271, 273, 274, 93 S. E., 740;
Smith v. Moore,
150 N. C., 158, 63 S. E., 735. The appellants, the present defendants, were therefore, at the time they acquired title, purchasers
pendente lite.
The question whether under these circumstances the original notice of
lis pendens
is effective to protect plaintiffs where the litigation is renewed within the permissive period after dismissal, reversal or nonsuit otherwise than on the merits, has not been decided here. Elsewhere authorities are in conflict. But we think the better reasoning supports the view that where there is identity between the causes of action, and a procedural continuity arising out of the legal right to renew the litigation on the merits, the original
lis pendens
will be effective in the “new action,”
where the defendants were pendente lite purchasers in the original proceeding.
On this principle, it has been held, we think with reason, that where the decree of dismissal expressly reserves to the plaintiff the right to begin another proceeding, such grant of authority continues the operation of the
lis pendens.
34 Am. Jur., Lis Pendens, sec. 32; 38 C. J., Lis Pendens, sec. 66;
Loomis v. Davenport,
175 F., 301, 307;
Bishop of Winchester v. Paine,
11 Ves. Jr., 200.
A fortiori,
since G. S., 1-25, giving such permission as a matter of law, must be read into every final judgment of nonsuit entered by any court, and of this law all persons affected must take notice, the same rule may apply.
Our courts have required the strictest factual identity -between the original and the renewed proceeding, and have frequently, not, we think, inadvertently or casually, referred to the “new action” begun under G. S., 1-25, as a continuation of the original action.
“The time is extended because the new action is considered as a continuation of the former action and they must be substantially the same, involving the same parties, the same cause of action and the same right, and this must appear from the record in the case and cannot be shown by oral testimony.” McIntosh, Civil Procedure, p. 119, sec. 126;
Young v. Atlantic Coast Line R. Co.,
189 N. C., 238, 126 S. E., 600;
Quelch v. Futch,
174 N. C., 395, 53 S. E., 899;
Colby v. City of Portland,
89 Oregon, 566, 174 P., 1159, 3 A. L. R., 819. See
Van Kempen v. Latham,
201 N. C.. 505, 513, 160 S. E., 759.
On this view defendants, who were
lis pendens
purchasers during the original proceeding, would seem to have a still more unfavorable position, with reference to
lis pendens,
upon renewal of the litigation.
In
Shufeldt v. Jefcoat,
50 Okla., 790, 151 P., 595, the Court said: “A plaintiff in a suit to cancel a deed who dismisses the action without prejudice and subsequently brings a new suit on the same cause of action some two months later, does not lose the benefit of notice of the action as to one who purchases during the pendency of the suit and prior to the dismissal.”
The principle asserted in these cases assigns no new office to the doctrine of
Us pendens.
It does, however, recognize that its application should not be so strict as to defeat the statutory remedy with which it . is closely associated, and which, without its aid, would be a futile gesture:
However originated, the doctrine of
lis pendens
is now, with practical uniformity, referred to the principle of notice, and is nowhere regarded as merely an arbitrary device, adopted for the convenience of the court in preserving the
status quo
so that the litigation should end somewhere, leaving something to which jurisdiction might attach. The protection of the rights involved are as much emphasized as the public convenience. It would have little significance as a rule of chancery courts without recognition of its special regard for the equities which the court is supposed to protect and adjust, as well as the frame within which it is to operate. It is not, therefore, an unreasonable view that its effectiveness ought to prevail so long as these equities have not themselves been determined or dismissed, but by appropriate statute are kept within the care of the law and the prospective adjudication by the court. It is difficult to see how G. S., 1-25, intended to accomplish this result, could be made effective in any other way, since, otherwise, the vigilant purchaser is practically invited to loose an arrow which will hit the proceeding in the joint of the harness; and the law makes a promise which it cannot fulfill. In complete accord with this holding is the decision in
Bird v. Gilliam,
125 N. C., 76, loc. cit. 79, 34 S. E., 196:
“A purchaser of land, in litigation, is conclusively fixed with notice, and takes his conveyance from a party of the suit subject to the final adjudication — the right of appeal petition to rehear . . . and in certain cases, a writ of error (within two years) to the United States Supreme Court.” Page 76, Synopsis. (Page 80) — “If, by so doing, the rights of petitioners to rehear could be defeated, the relief intended to be given by such reviews of the action of the Court, would be almost, if not altogether, denied, by anticipatory promptness of any party who might be affected by such reviews.”
"Without going further than the facts of this case, we are of the opinion that notice of
Us pendens
is effective against the appellants, who were
purchasers
pendente lite
in the former related action.
Shufeldt v. Jefcoat, supra.
Equally decisive on the point, however, is the circumstance, to which appellants seem to be inadvertent. It is that plaintiffs have not relied solely on the original notice of
lis pendens,
although they have pleaded it, but have alleged that defendants had actual knowledge of plaintiffs’ rights and equities in the land at the time they acquired title. This is sufficient to defeat the demurrer.
The judgment overruling the demurrer is
Affirmed.