Herrington v. Herrington

27 Mo. 560

• Court: Supreme Court of Missouri
• Decided: October 15, 1858
• Status: Published

Opinion

Richardson, Judge,

delivered the opinion of the court.

Before and at the time the transcript of Beal’s judgment was filed in the office of the clerk of the circuit court, Isaac Herrington was insolvent, and the land, being held by John Herrington fraudulently for the purpose of shielding it from Isaac’s creditors, was subject to Beal’s execution. The unrecorded title bond, by which John Herrington agreed to convey the land at a future day to Isaac’s children, could not and did not defeat the judgment lien, and the sheriff’s deed to Beal operated to convey the beneficial interest in the land. (Rankin v. Harper, 23 Mo. 579.) The deed of John Herrington to Beal did not certainly weaken the latter’s title; for, if Beal had no notice of the title bond, the deed passed tlie whole estate, and if he had notice, as the bond was fraudulent, he could stand on the sheriff’s deed.

But Hiney represents all the title that passed by the sheriff’s deed and the conveyance from John Herrington to Beal, and he is therefore the real defendant, who must be affected with notice of the plaintiffs’ equities before they can recover in any aspect of the case. Hiney claimed the land as a purchaser under a deed of trust made by Beal to the trustee of Jefferson county, dated 21st June, 1855, and under a deed made by Beal to him for his equity of redemption, dated 16th November, 1855 ; and the only evidence to charge notice on him was the suit which the plaintiff had brought and dismissed against John Herrington and Beal. It appears that the petition in that suit was filed October 10th, 1855, on which the summons did not issue until the 21st of March, 1855, and was dismissed on the 29th May following. There was no proof that Hiney had actual notice, but it was sought to charge him as a purchaser pendente lite. Though the petition was filed in October, there was no Us pendens as to strangers until the process was served, which was several months afterwards. (Murray v. Ballou, 1 John. Ch. 576; Lyle v. Bradford, 7 Mon. 116; 2 Sug. on Vend. 544.) And that suit having been discontinued, it did not affect Hiney in this suit, for the policy, on which the doctrine of lis pendens is founded, is to give full effect to the judgment which might be rendered in the suit depending at the time of the purchase ; and the pendency of a suit at the time of purchase, which is subsequently dismissed, will not affect the purchaser with notice in a new suit. (Newman v. Chapman, 2 Rand. 103; Watson v. Wilson, 2 Dana, 408.)

Judge Napton concurring,

the judgment will be affirmed.