Cooper, J.,
delivered the opinion of the court.
Bill to enjoin further proceedings under an order of the circuit court condemning to sale a house and lot in. Brownsville under the levy of a justice’s execution, upon the ground that the lien had been lost by laches, the •complainant being an innocent purchaser from the judgment debtor. The chancellor granted the relief •sought, and the defendant- appealed.
On February 1, 1873, the defendant, Roberts, re[58]*58covered a judgment before a justice of the peace against Thomas Bond for $312.87 and costs, which judgment was stayed by H. T. Grant. On October 31, 1873, an execution issued on the judgment, and was levied upon the lot in controversy as the property of Grant, he then owning and residing upon it. At the October term, 1873, of the circuit court the papers were returned to that court, and the land condemned and ordered to be sold. On February 7, 1874, Grant, by petition filed for the purpose, superseded the execution of the order of sale, upon the ground that Bond, the principal debtor, had property in the county at the time of the levy on petitioner’s land, subject to execution and unencumbered, more than sufficient to satisfy the judgment. On March 19, 1874, the motion of Roberts to dimiss the petition and discharge the supersedeas was refused, an entry to that effect being made on the minutes of the court in the cause under the style of A. "W. Roberts v. Thomas Bond and H. T. Grant. From that time no step was taken in the cause until the October term, 1877, when there is an entry on the minutes that the cause was continued by consent. Up to this time, the' cause had been permitted to slumber on the reference docket, which docket, the proof shows, was not called during that period. Afterwards, the memoranda of the circuit judge on the trial docket show either that nothing was done, or continuances by consent, until the February term, 1879. At this term, the minutes show a continuance as on affidavit of the defendant. At the June term, 1879, the cause was tried,] the [59]*59supersedeas discharged, and a venditioni exponas ordered to issue upon the order of condemnation of the October term, 1873. At the October term, 1879, it was suggested to the court that Grant was dead, and that he had previously sold and conveyed the land to Hiram Mann, whereupon a scire facias was ordered to issue to Mann requiring him to show cause why the suit of A. W. Roberts v. Thomas Bond and H. T. Grant should not be revived against him. This bill was then filed.
On August 7, 1877, Grant, then in the actual'occupancy of the land, sold and conveyed it to the complainant for §2,500 in cash, all of which was paid, and the greater part of which was used in removing encumbrances, in the shape of judgments, mortgages and tax sales, then existing on the land. The proof' leaves no doubt that the complainant was an innocent purchaser of the land for its full value, without notice of the defendant's judgment, the levy of the execution thereon, or the subsequent proceedings in the circuit court until served with the scire facias on „ December 19, 1879. The complainant went into posses-, sion of the land at the time of his purchase, and has since continued to occupy it.
An order of condemnation of land upon the levy of a justice’s execution is not a judgment, but only a mode of executing the levy: Ashworth v. Demier, 1 Baxt., 323; Overton v. Perkins, M. & Y., 367. It is not notice to third persons, nor would it be if a judgment, the notice implied from a pending litigation ceasing with its determination': Worsley v. Earl of [60]*60Scarborough, 3 Atk., 392; Dudley v. Witter, 46 Ala., 664. An order of condemnation gives no lien, but merely continues the lien of the levy, to which the title of the purchaser under the sale would relate.
The only proper use of an execution is to enforce the collection of a debt, and to enforce it, so far as the rights of third persons are concerned, with reasonable diligence. The creditor cannot use it merely as a security for his debt by a levy on property, for the lien thus created is a secret lien, and may operate to the prejudice of innocent third persons if the debtor be left in possession of the property: Freem. on Ex., sec. 206. The lien may be lost by inaction or negligence in not properly and promptly pursuing it: Etheredge v. Edwards, 1 Swan, 429; Snell v. Allen, 1 Swan, 208. A delay of seventeen months in one case, and of three years in another, has been Feld sufficient to deprive a creditor of a priority of lien by levy: Owens v. Patterson, 6 B. Mon., 489; Deposit Bank v. Berry, 2 Bush., 236. And this court has held that the lien of a levy on land of a justice’s execution may be lost, as against an intermediate innocent purchaser, by a failure to file the papers in the circuit .court for condemnation in a reasonable time: Anderson v. Talbot, 1 Heis., 407; Zook v. Smith, 6 Baxt., 213. These cases also hold that the proceedings of condemnation become a 'lis pendens from the date of such filing. And the effect of the Us pendens in this case is thus raised.
The doctrine of lis pendens, by which a bona fide ^purchaser without notice is held bound by the result [61]*61of the suit as- if he had notice, is one of public policy and necessary to bring litigation to an end. It is strictissimi juris, and, only applies when there has. been a compliance in the pending suit with all the requirements which call it into operation. The rulé-is thus expressed by Lord Bacon: “ No decree bind-eth any that oometh in bona fide by conveyance from, the defendant before the bill is exhibited, and is made-no party to the bill in order; but when he comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of court, there regularly the decree bindeth. But if there were any intermissions of suit, or the court made-acquainted with the conveyance, the court is to give order upon the special matters according to justice.” If, therefore, there be “any intermissions of suit,” the-rule will not apply: Ereeman on Judgments, see. 203. So, the rule applies “while the suit is in full prosecution,” not when it is proceeded in with culpable negligence. To have the benefit of it there should be a close and continuous prosecution of the suit from its commencement to its close, taking into consideration the character of the case, the. obstacles thrown in the way by the opposing litigant, and the usual law’s delay: Hayden v. Bucklin, 9 Paige, 512. The lien will not, perhaps, be impaired by ordinary negligence, and will only be lost by unusual and unreasonable delay. The delay may be explained, but if not explained the question becomes one of culpable laches to-the injury of an innocent third person. And what constitutes unreasonable want of diligence, or undue [62]*62delay, must be determined by the particular circumstances of each case : Freeman on Judgments, sec. 202; 2 W. & T. Lead. Cas. Eq. 198 (4th ed.). The lien of an attachment on land has been held to be lost by a delay of two years in prosecuting the suit: Petree v. Bell, 2 Bush. 58. And so of a mechanic’s lien where there was a delay of four years: Ehrman v. Kendrick, 1 Met. (Ky.) 146.
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Cooper, J.,
delivered the opinion of the court.
Bill to enjoin further proceedings under an order of the circuit court condemning to sale a house and lot in. Brownsville under the levy of a justice’s execution, upon the ground that the lien had been lost by laches, the •complainant being an innocent purchaser from the judgment debtor. The chancellor granted the relief •sought, and the defendant- appealed.
On February 1, 1873, the defendant, Roberts, re[58]*58covered a judgment before a justice of the peace against Thomas Bond for $312.87 and costs, which judgment was stayed by H. T. Grant. On October 31, 1873, an execution issued on the judgment, and was levied upon the lot in controversy as the property of Grant, he then owning and residing upon it. At the October term, 1873, of the circuit court the papers were returned to that court, and the land condemned and ordered to be sold. On February 7, 1874, Grant, by petition filed for the purpose, superseded the execution of the order of sale, upon the ground that Bond, the principal debtor, had property in the county at the time of the levy on petitioner’s land, subject to execution and unencumbered, more than sufficient to satisfy the judgment. On March 19, 1874, the motion of Roberts to dimiss the petition and discharge the supersedeas was refused, an entry to that effect being made on the minutes of the court in the cause under the style of A. "W. Roberts v. Thomas Bond and H. T. Grant. From that time no step was taken in the cause until the October term, 1877, when there is an entry on the minutes that the cause was continued by consent. Up to this time, the' cause had been permitted to slumber on the reference docket, which docket, the proof shows, was not called during that period. Afterwards, the memoranda of the circuit judge on the trial docket show either that nothing was done, or continuances by consent, until the February term, 1879. At this term, the minutes show a continuance as on affidavit of the defendant. At the June term, 1879, the cause was tried,] the [59]*59supersedeas discharged, and a venditioni exponas ordered to issue upon the order of condemnation of the October term, 1873. At the October term, 1879, it was suggested to the court that Grant was dead, and that he had previously sold and conveyed the land to Hiram Mann, whereupon a scire facias was ordered to issue to Mann requiring him to show cause why the suit of A. W. Roberts v. Thomas Bond and H. T. Grant should not be revived against him. This bill was then filed.
On August 7, 1877, Grant, then in the actual'occupancy of the land, sold and conveyed it to the complainant for §2,500 in cash, all of which was paid, and the greater part of which was used in removing encumbrances, in the shape of judgments, mortgages and tax sales, then existing on the land. The proof' leaves no doubt that the complainant was an innocent purchaser of the land for its full value, without notice of the defendant's judgment, the levy of the execution thereon, or the subsequent proceedings in the circuit court until served with the scire facias on „ December 19, 1879. The complainant went into posses-, sion of the land at the time of his purchase, and has since continued to occupy it.
An order of condemnation of land upon the levy of a justice’s execution is not a judgment, but only a mode of executing the levy: Ashworth v. Demier, 1 Baxt., 323; Overton v. Perkins, M. & Y., 367. It is not notice to third persons, nor would it be if a judgment, the notice implied from a pending litigation ceasing with its determination': Worsley v. Earl of [60]*60Scarborough, 3 Atk., 392; Dudley v. Witter, 46 Ala., 664. An order of condemnation gives no lien, but merely continues the lien of the levy, to which the title of the purchaser under the sale would relate.
The only proper use of an execution is to enforce the collection of a debt, and to enforce it, so far as the rights of third persons are concerned, with reasonable diligence. The creditor cannot use it merely as a security for his debt by a levy on property, for the lien thus created is a secret lien, and may operate to the prejudice of innocent third persons if the debtor be left in possession of the property: Freem. on Ex., sec. 206. The lien may be lost by inaction or negligence in not properly and promptly pursuing it: Etheredge v. Edwards, 1 Swan, 429; Snell v. Allen, 1 Swan, 208. A delay of seventeen months in one case, and of three years in another, has been Feld sufficient to deprive a creditor of a priority of lien by levy: Owens v. Patterson, 6 B. Mon., 489; Deposit Bank v. Berry, 2 Bush., 236. And this court has held that the lien of a levy on land of a justice’s execution may be lost, as against an intermediate innocent purchaser, by a failure to file the papers in the circuit .court for condemnation in a reasonable time: Anderson v. Talbot, 1 Heis., 407; Zook v. Smith, 6 Baxt., 213. These cases also hold that the proceedings of condemnation become a 'lis pendens from the date of such filing. And the effect of the Us pendens in this case is thus raised.
The doctrine of lis pendens, by which a bona fide ^purchaser without notice is held bound by the result [61]*61of the suit as- if he had notice, is one of public policy and necessary to bring litigation to an end. It is strictissimi juris, and, only applies when there has. been a compliance in the pending suit with all the requirements which call it into operation. The rulé-is thus expressed by Lord Bacon: “ No decree bind-eth any that oometh in bona fide by conveyance from, the defendant before the bill is exhibited, and is made-no party to the bill in order; but when he comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of court, there regularly the decree bindeth. But if there were any intermissions of suit, or the court made-acquainted with the conveyance, the court is to give order upon the special matters according to justice.” If, therefore, there be “any intermissions of suit,” the-rule will not apply: Ereeman on Judgments, see. 203. So, the rule applies “while the suit is in full prosecution,” not when it is proceeded in with culpable negligence. To have the benefit of it there should be a close and continuous prosecution of the suit from its commencement to its close, taking into consideration the character of the case, the. obstacles thrown in the way by the opposing litigant, and the usual law’s delay: Hayden v. Bucklin, 9 Paige, 512. The lien will not, perhaps, be impaired by ordinary negligence, and will only be lost by unusual and unreasonable delay. The delay may be explained, but if not explained the question becomes one of culpable laches to-the injury of an innocent third person. And what constitutes unreasonable want of diligence, or undue [62]*62delay, must be determined by the particular circumstances of each case : Freeman on Judgments, sec. 202; 2 W. & T. Lead. Cas. Eq. 198 (4th ed.). The lien of an attachment on land has been held to be lost by a delay of two years in prosecuting the suit: Petree v. Bell, 2 Bush. 58. And so of a mechanic’s lien where there was a delay of four years: Ehrman v. Kendrick, 1 Met. (Ky.) 146.
In the case before us, the suit was allowed to sleep upon the reference docket from March 19, 1874, to the October term 1877, when it was transferred to the trial docket, and no step was then taken by the plaintiff, now the defendant, until the February term, 1879. In the meantime, during the first sleep, and after the lapse of over three years, the complainant became the innocent purchaser of the property at its full value. No excuse whatever is offered for the delay, although the defendant is examined as a witness on his own behalf. There was nothing in the character of the litigation to justify the delay. The very fact that the title to the property, and the extent of encumbrances upon it were examined into by an attorney of the court in which the suit was pending, without discovery, shows how completely the cause was retired from public notice, and allowed to sleep by defendant. He has clearly been guilt}'- of that degree of negligence which deprives him of the benefit of the lis pendens as against the complainant, an innocent third person without notice.
The cases of Spence, exparte, 6 Lea, 391, and Ross v. Swan, 7 Lea, 463, relied upon by the defendant’s [63]*63counsel, bave no application to this case. In both of those cases, the purchasers claimed under a party whose title was derived by purchase in the pending suit, and their own muniments of title fixed them with notice of suit. The constructive notice thus fixed upon them was equivalent to actual notice. The doctrine of lis pendens does not depend upon notice at all.
There is no error in the chancellors’s decree, and it will be affirmed with costs.