MARIA DE LOS ANGELES MAJORS v. HENRY COWELL et al., 51 Cal. 478

By the Court, Crockett, J.: The questions presented by this record are: first, Whether the statute of this State regulating the filing of a notice of lis pendens and defining the effect thereof, was intended to apply to actions pending in the Circuit Court of the United States. Second, Whether the statute has been adopted as a rule of practice in equity cases, by the rules prescribed by the Supreme Court of the United States, or by the rules of the Circuit Court for the Mnth Circuit.

Third, Whether Cowell, at the time of the conveyance to him, was affected with constructive notice of the pendeney of the action of Norton v. Meader et al, independently of the notice of Us pendens filed in that action. Fourth, If Cowell was not a party to that action, whether he became bound by the judgment by uniting in the appeal, and paying his proportion of the costs, on the affirmance of the decree. These points will be noticed in their order.

On the first point, it will be sufficient to observe that ordinarily, statutes of the several states regulating remedies by means of judicial proceedings are to be understood as intended to apply only to proceedings in the courts of the particular State, unless it clearly appears that they were intended to have a wider scope; and in the absence of a clearer expression of the legislative will to that effect, it is not to be inferred, waiving the question of power, that a State statute was intended to furnish remedies to suitors in the Federal courts, whose powers are derived wholly from the Constitution and laws of the United States.

There is nothing in our statute to indicate that it was intended to have that effect, or to afford a remedy except to suitors in our own courts. Nor do we find that our statute in respect to the filing of a notice of Us pendens, or any equivalent proceeding, has been incorporated into the rules promulgated by the Supreme Court of the United States as applicable to suits in equity; and the rules of the Circuit Court for the Ninth Circuit, are likewise silent on that subject. This brings us to the question, whether it sufficiently appears from this record, that Cowell was a formal party to the action of Norton v.

Header ct al., and if not, whether he was affected with constructive notice of the pending of the action, independently of the notice filed with the recorder. The Court does not find that Cowell was a formal party to the action; but it is contended, that in support of the judgment, and in the absence of an express finding on that point, we should presume a finding to that effect. But under our present Code of Civil Procedure, as we have repeatedly held, the findings must support the judgment, and no facts in issue ■will be presumed to have been proved except those which are found.

We must therefore assume, for the purposes of this decision, that Cowell -was not a formal party to the action, and the Court finds that he was a purchaser for a valuable consideration, and had no actual notice of the pendency of the action, when he took the conveyance from Jordan. The findings further show, that Jordan did not file his ansrver in that action until long after the conveyance to Cowell, nor docs it appear, that he ivas ever served with process, or in any manner appeared to the action, prior to his answer. The case, then, as presented by the record, is,' that after the complaint in Norton v.

Header et al, (in which Jordan was named as a defendant) was filed, but before there was any service of process on him, and before he had appeared to the action, he conveyed the land in controversy to Cowell, who was a purchaser for a valuable consideration, without actual notice of the pendency of the action. Under these circumstances; was there a lis pendens in a legal sense, and if so, must Cowell be deemed to have had constructive notice of it?

By Buie 89, in equity causes, as promulgated by the Supreme Court of the United States, it is provided that the Circuit Courts may make any further rules and regulations for the practice, proceedings, and process, in their respective districts, not inconsistent with the rules prescribed by the Supreme Court; and Bule 90 provides, that “in all cases where the rules prescribed by this Court, or by the Circuit Court do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied, consistently with the local circumstances and local, convenience of the district where the Court is held; not as positive rules, but as furnishing just analogies to regulate the practice.” We have already seen that neither the rules prescribed by the Supreme Court, nor those of the Circuit Court of the Ninth Circuit, define what shall constitute a Us pendens of which third persons shall be deemed to have had constructive notice.

We must therefore refer to the practice of the High Court of Chancery in England for a solution of the question. As we understand it, the rule in that court and at common law is, “that a suit in equity does not operate as constructive notice until the service of process,” or until the service has been waived by a voluntary appearance. (Freeman on Judgments, sec. 195, and cases cited.) The mere filing of a complaint, without the service of process or a voluntary appearance, does not constitute a lis pendens.

If we are correct in this conclusion, there was no Us pendens in Norton v.Meader et al., when Cowell took his conveyance from Jordan, of which he could have been affected with constructive notice, and, as he was a purchaser for a valuable consideration, without actual notice, he ivas not bound by the judgment in that action, unless he became bound by uniting in the appeal. But if he would not otherwise have been affected, by the judgment, it is not perceived how he could have lost his rights by prosecuting a fruitless appeal.

If there had been no appeal, it is clear he would not have been bound by the judgment, and he was in no worse position after the judgment was affirmed. The interlocutory judgment determining the rights of the parties to tracts C and D, and the order denying a new trial as to the same, affirmed; and the judgment and order as to tracts A and B, reversed, and the cause-remanded for new trial. Mr. Chief Justice Wallace did not express an opinion.