Mr. Justice Craig
delivered the opinion of the Court:
This was a bill brought by John I. Bennett and others, appellees, in the circuit court of Cook county, against Charles E. Grant and others, to set aside, as a cloud upon their title, a certain deed purporting to have been executed on the 4th day of March, 1869, by Mary A. Newcomb to Charles E. Grant, for certain property in Hyde Park, Cook county.
The cause came to a hearing upon the pleadings and evidence, and the court rendered a decree in favor of the complainants in the bill, to reverse which this appeal has been brought.
The property originally belonged to Abraham J. Bockafellow, who, in 1868, conveyed it to Mary J. Newcomb, but on the 4th day of March, 1869, he filed his bill against her in the circuit court of Cook county to compel a reconveyance. The bill was filed about noon of the 4th. Summons was issued and served on the following day. The deed from Newcomb to Grant was delivered one or two hours subsequent to the filing of the bill.
The bill filed by Rockafellow was, upon the hearing, dismissed, and he appealed, the appeal resulting iu a decision reversing the decree, with directions to the circuit court to enter a decree in favor of the complainant. On the 18th day of June, 1871, a final decree was rendered in the circuit court. Prior to this, however, and on the 16th day of March, 1871, the deed to Grant was placed upon record. After the rendition of the decree on the 18th day of June, appellees purchased of Rockafellow, and, claiming title under him, file this bill.
Three questions arise upon the record: First, whether the filing of the bill by Ttockafellow against Newcomb can be regarded as lis pendens before the service of subpoena. Second, was Grant chargeable with constructive notice of the decision rendered in this court in the case on appeal? Third, was the purchase of the premises by Grant made in good faith for a valuable consideration?
It is clear from the evidence that Grant received a deed of the premises from one to two hours after the bill was filed. If, therefore, the filing of the bill can be held to be lis pendens, without the service of subpoena, it follows that the conveyance to him would be held subject to the final result of the bill.
We have examined the authorities bearing upon the question with that degree of care that the importance of the subject demands, and we are satisfied that in the courts of chancery in England, and in the States where the common law prevails, lis pendens does not exist until a summons or subpoena has been duly and regularly served upon the defendants in the bill, except where the common law rule has been changed by statute.
The service of subpoena alone is not sufficient, but a bill must also be filed, and where a bill has been filed and a subpoena served, whether the bill was filed before or after service, lis pendens begins from the date of the service and not from the filing of the bill.
In Sugden on Vendors, Vol. 3, p. 322, the rule is stated thus: A subpoena served is not, however, a sufficient Us pendens unless a bill be filed, but when a bill is ■ filed the Us pendens begins from the service of the subpoena.
Freeman, in his work on Judgments, sec. 195, says: Lis pendens, except when some statute provides otherwise, begins from the service of the process or subpoena, and not before. The same doctrine is announced and sustained in the following authorities: Anon. 1 Vern. 318; Murray v. Ballou, 1 Johns. Chancery, 576; Hayden v. Bachlin, 9 Paige Ch. 513; Hemmington v. Hemmington, 27 Mo. 560; Allen v. Mandeville, 26 Miss. 397; Leich v. Wells, 48 N. Y. 611; Powell v. Wright, 7 Beavan, 444.
Has the common law rule been changed by our statute, which declares the mode of commencing suit in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint?
While this statute prohibits the practice which has prevailed in some places, of suing out a summons in chancery by merely filing a prceeipe, yet it by no means follows that the filing of a bill is to be regarded as a lis pendens.
The mode of commencing a suit in chancery, or taking the first step in that direction, is one thing, but the effect to be given to that act is another question.
Whilst the statute has clearly and in emphatic terms declared the manner in which a suit in chancery shall be instituted, it is silent in regard to the effect to be given to the filing of the bill on the rights of persons not parties to the suit. The result is, the common law rules that govern courts of chancery are still in force and must prevail.
The case of Hodgen v. Guttery, 58 Ill. 431, cited and relied upon by appellees, has no bearing upon this question. The point there decided was that process could not issue without filing the bill, and if process was issued or publication made without a bill being filed, the court acquired no jurisdiction over the defendant.
Iii the other decisions of this court, cited by appellees, the question here involved did not arise, and was not decided.
In regard to the second question, we are satisfied if a final decree had been rendered in the circuit court or this court, in the case of Rockafellow v. Newcomb, transferring the title to the premises from the latter to the former, before Grant filed his deed for record, such decree would have defeated the title of Grant. But the judgment rendered in this court, although prior to the filing of the deed for record, was not a final disposition of the case. It is true, the decision rendered settled the rights of the parties, but the decree of the circuit court was reversed, and the cause remanded, with instructions to the circuit court to render a decree that upon Roekafellow reconveying certain property to Miss Newcomb, she recouvey the property in question to him.
It needs no argument to show that the decision, while it may be regarded as settling the rights of the parties in the pending litigation, was not a final judgment, in the sense that term is used, to be a lien and binding on the property of the defendant.
We now come to the last point in the case,—whether Grant purchased in good faith and for an adequate consideration.
While it is clear, from the evidence, that at the time Miss Newcomb conveyed to Grant she was aware that Roekafellow would institute proceedings to obtain the land from her, and she no doubt sold the premises for that reason, and while her conduct in defending the action in her own name, without disclosing the fact that she had conveyed, is not commendable, yet the record is barren of evidence that establishes the fact that Grant was actuated by any improper motives in making the purchase,—that he had any knowledge that Roekafellow had any claim to the property, or that there was danger of litigation over the title.
Grant testified that he bought the property of Miss New-comb about the 15th day of January, 1869, for $2000; that a Mr. Reid, who was a mutual friend, had called upon him and stated she was in every way reliable, and was in need of money and desired to sell the property. He paid $300 when the bargain was made, and agreed to pay the balance when she made out a deed.
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Mr. Justice Craig
delivered the opinion of the Court:
This was a bill brought by John I. Bennett and others, appellees, in the circuit court of Cook county, against Charles E. Grant and others, to set aside, as a cloud upon their title, a certain deed purporting to have been executed on the 4th day of March, 1869, by Mary A. Newcomb to Charles E. Grant, for certain property in Hyde Park, Cook county.
The cause came to a hearing upon the pleadings and evidence, and the court rendered a decree in favor of the complainants in the bill, to reverse which this appeal has been brought.
The property originally belonged to Abraham J. Bockafellow, who, in 1868, conveyed it to Mary J. Newcomb, but on the 4th day of March, 1869, he filed his bill against her in the circuit court of Cook county to compel a reconveyance. The bill was filed about noon of the 4th. Summons was issued and served on the following day. The deed from Newcomb to Grant was delivered one or two hours subsequent to the filing of the bill.
The bill filed by Rockafellow was, upon the hearing, dismissed, and he appealed, the appeal resulting iu a decision reversing the decree, with directions to the circuit court to enter a decree in favor of the complainant. On the 18th day of June, 1871, a final decree was rendered in the circuit court. Prior to this, however, and on the 16th day of March, 1871, the deed to Grant was placed upon record. After the rendition of the decree on the 18th day of June, appellees purchased of Rockafellow, and, claiming title under him, file this bill.
Three questions arise upon the record: First, whether the filing of the bill by Ttockafellow against Newcomb can be regarded as lis pendens before the service of subpoena. Second, was Grant chargeable with constructive notice of the decision rendered in this court in the case on appeal? Third, was the purchase of the premises by Grant made in good faith for a valuable consideration?
It is clear from the evidence that Grant received a deed of the premises from one to two hours after the bill was filed. If, therefore, the filing of the bill can be held to be lis pendens, without the service of subpoena, it follows that the conveyance to him would be held subject to the final result of the bill.
We have examined the authorities bearing upon the question with that degree of care that the importance of the subject demands, and we are satisfied that in the courts of chancery in England, and in the States where the common law prevails, lis pendens does not exist until a summons or subpoena has been duly and regularly served upon the defendants in the bill, except where the common law rule has been changed by statute.
The service of subpoena alone is not sufficient, but a bill must also be filed, and where a bill has been filed and a subpoena served, whether the bill was filed before or after service, lis pendens begins from the date of the service and not from the filing of the bill.
In Sugden on Vendors, Vol. 3, p. 322, the rule is stated thus: A subpoena served is not, however, a sufficient Us pendens unless a bill be filed, but when a bill is ■ filed the Us pendens begins from the service of the subpoena.
Freeman, in his work on Judgments, sec. 195, says: Lis pendens, except when some statute provides otherwise, begins from the service of the process or subpoena, and not before. The same doctrine is announced and sustained in the following authorities: Anon. 1 Vern. 318; Murray v. Ballou, 1 Johns. Chancery, 576; Hayden v. Bachlin, 9 Paige Ch. 513; Hemmington v. Hemmington, 27 Mo. 560; Allen v. Mandeville, 26 Miss. 397; Leich v. Wells, 48 N. Y. 611; Powell v. Wright, 7 Beavan, 444.
Has the common law rule been changed by our statute, which declares the mode of commencing suit in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint?
While this statute prohibits the practice which has prevailed in some places, of suing out a summons in chancery by merely filing a prceeipe, yet it by no means follows that the filing of a bill is to be regarded as a lis pendens.
The mode of commencing a suit in chancery, or taking the first step in that direction, is one thing, but the effect to be given to that act is another question.
Whilst the statute has clearly and in emphatic terms declared the manner in which a suit in chancery shall be instituted, it is silent in regard to the effect to be given to the filing of the bill on the rights of persons not parties to the suit. The result is, the common law rules that govern courts of chancery are still in force and must prevail.
The case of Hodgen v. Guttery, 58 Ill. 431, cited and relied upon by appellees, has no bearing upon this question. The point there decided was that process could not issue without filing the bill, and if process was issued or publication made without a bill being filed, the court acquired no jurisdiction over the defendant.
Iii the other decisions of this court, cited by appellees, the question here involved did not arise, and was not decided.
In regard to the second question, we are satisfied if a final decree had been rendered in the circuit court or this court, in the case of Rockafellow v. Newcomb, transferring the title to the premises from the latter to the former, before Grant filed his deed for record, such decree would have defeated the title of Grant. But the judgment rendered in this court, although prior to the filing of the deed for record, was not a final disposition of the case. It is true, the decision rendered settled the rights of the parties, but the decree of the circuit court was reversed, and the cause remanded, with instructions to the circuit court to render a decree that upon Roekafellow reconveying certain property to Miss Newcomb, she recouvey the property in question to him.
It needs no argument to show that the decision, while it may be regarded as settling the rights of the parties in the pending litigation, was not a final judgment, in the sense that term is used, to be a lien and binding on the property of the defendant.
We now come to the last point in the case,—whether Grant purchased in good faith and for an adequate consideration.
While it is clear, from the evidence, that at the time Miss Newcomb conveyed to Grant she was aware that Roekafellow would institute proceedings to obtain the land from her, and she no doubt sold the premises for that reason, and while her conduct in defending the action in her own name, without disclosing the fact that she had conveyed, is not commendable, yet the record is barren of evidence that establishes the fact that Grant was actuated by any improper motives in making the purchase,—that he had any knowledge that Roekafellow had any claim to the property, or that there was danger of litigation over the title.
Grant testified that he bought the property of Miss New-comb about the 15th day of January, 1869, for $2000; that a Mr. Reid, who was a mutual friend, had called upon him and stated she was in every way reliable, and was in need of money and desired to sell the property. He paid $300 when the bargain was made, and agreed to pay the balance when she made out a deed. On the 4th day of March, 1869, she delivered him a quitclaim deed, and he paid her the remaining $1700 in currency.
He also testified, when he received the deed, he had no knowledge that any difficulty existed between Miss Newcomb and Rockafellow, and did not know that any person had any claim on the land, and did not even know of whom or how she acquired the title to the property.
Miss Newcomb testifies the trade was made in January, 1869, and $300 paid, and the deed was executed and delivered on the 4th of the following March, when the remaining $1700 was paid.
Mrs. Graves testifies the deed was delivered in her presence at her house on the 4th day of March, 1869, and the $1700 paid.
Carpenter, the scrivener who prepared the deed, says Miss Newcomb called upon him on the 3d day of March, 1869, and left the deed made by Rockafellow to her, and directed him to make out a deed to Grant; that on the day following the deed was executed and acknowledged before him.
Here, the evidence of grantor and grantee, and the officer who prepared the deed and took the acknowledgment, and Mrs. Graves; who has no interest in the result, all concur in the fact that the sale was made and consummated at a particular date, deed delivered, and the consideration for which the land sold was actually paid.
This proof on the part of appellants is not overcome by the evidence introduced by appellees.
If it be true that the object of Miss Newcomb in making the sale to Grant was to deprive Rockafellow from obtaining a reconveyance of the property, that would not defeat the title Grant acquired if he purchased in good faith, without notice of the equities of Rockafellow. Nor can the conduct of Miss Newcomb in defending the suit instituted by Rockafellow against her, in her own name, and not disclosing the fact she had sold, affect Grant, so long as he had no knowledge of the impending litigation.
It is said the fact that Grant failed to place upon the record the quitclaim deed, and the antedating the warranty deed subsequently obtained, are facts which show bad faith on his part. It is not unusual for a person to retain a deed and not record it.
As to the other matter, it was in proof, when the quitclaim deed was delivered, Miss Newcomb agreed to make a warranty deed at any time Grant might desire it, and when the warranty deed was subsequently made, it was antedated to correspond with the time the purchase was made by Grant. The date the parties might insert in the deed was of no consequence. Nothing could be gained by making a second deed, except Miss Newcomb would be responsible to Grant on the covenants in case the title should fail.
The quitclaim deed would as effectually pass the title as a warranty with full covenants. The law upon this point is well settled. Butterfield v. Smith, 11 Ill. 485; Brady v. Spurck, 27 id. 478; Morgan v. Clayton, 61 id. 35.
"Various other matters of a similar character have been urged by appellees for the purpose of showing that Grant did not purchase in good faith.
But unless we can presume, without sufficient proof, that the four witnesses, Grant, Carpenter, Miss Newcomb and Mrs. Graves, have deliberately testified falsely, we are aware of nothing upon which the sale and conveyance of the property consummated on the 4th day of March, 1869, so far as Grant is concerned, can be impeached.
After a careful examination of the whole record, we are satisfied the decree can not be sustained. It will therefore be reversed and the cause remanded.
Decree reversed.
At the September Term, 1880, upon a re-argument of the cause, the following additional opinion was filed:
Per Curiam :
Owing to the importance of this case, both in respect to the amount in controversy and the legal questions involved, and the further consideration that the members of the court were not in accord upon some of these questions, a re-argument was ordered, with the hope of obtaining some additional light and of arriving at a more harmonious result..
There was, accordingly, a re-argument of the case at the present term of the court, in which both sides of the controverted questions upon which the case turns were presented by distinguished counsel with remarkable ability and learning. But the court, after having availed itself of all the aid resulting from a re-argument, and after a thorough reexamination of the whole subject, has been unable to reach an altogether harmonious result, yet, a majority of the court are content with the opinion heretofore filed in the case, and believing that the views therein expressed are sound on general principles and fully sustained by the authorities, it is accordingly approved and adopted as the opinion of the court.