Hayden, receiver, &c. vs. Bucklin & Brown, 9 Paige Ch. 512

The Chancellob. There is no dispute in relation to the bona fide nature of the transaction between Patten and his assignees. Although the assignor may have anticipated the filing of creditors’ bills against him, assoon as the executions, which were issued on the sixth of January, could be returned unsatisfied, it appears to be impossible that when he made the assignment on the 9th of January at Winfield, he should have known that bills had been actually filed and subpoenas issued thereon at Albany, 80 miles distant, on the afternoon of the preceding day.

And both of the defendants in this suit deny that they had any notice of the filing of the bills, or of the issuing of the subpoenas in the suits against Patten, at the time of the assignment to them. Nor did they suspect or believe at that time that any such proceedings had been instituted. The only question for consideration therefore is, whether the mere issuing of the subpoena is to be deemed a lis pendens in this court, so as to affect the validity of a transfer of the subject matter of the litigation here, as a purchase pendente lite.

Previous to the statute of Anne, (4 Anne, ch. 16, § 22,) it was not necessary to file the complainant’s bill before the issuing and service of the subpoena to appear and answer ; but it was sufficient if the bill was filed afterwards. And the suit, as against the defendant himself, was then considered as commenced from the teste of the subpoena, as in the case of suits at law commenced by original writs. Such appears to have been the decision of Lord Nottingham, in the case of Pigott v. Jfower, in 1677, which is copied by Mr. Swanston from his lordship’s manuscript notes. (3 Swans.

Rep. 536.) And at the present day the filing of a bill and taking out a subpoena thereon, and making a bona fide attempt to serve it without delay, may be considered as the commencement of the suit for the purpose of preventing the operation of the statute of limitations; if the suit is afterwards prosecuted with due and reasonable diligence. (Webb v.

Pell, 1 Paige’s Rep. 564.) Probably such a commencement of a suit would also be sufficient to give the complainant in a creditor’s bill a preference over a similar suit subsequently commenced against the same defendant, although the subpoena in the last suit should be first served; as in the case of the suing out of two original writs, against the heir at law, by different specialty creditors of the ancestor. (See Gree v. Oliver, 4 Bac. Abr. tit. Heir and Ancestor, F.; Burgh v. Francis, Cases Temp.

Finch, 29.) But even before the statute of Anne, the mere issuing of a subpoena was not considered the commencement of a lis pendens, as to a stranger to the suit. But to charge him with constructive notice of the pendency of the suit, and subject him to the consequences of a purchase pendente lite, it was necessary that the bill should be filed and the subpoena served. (Anon. 1 Vern. Rep. 319.) And Sir Edward Sugden, the late chancllor of Ireland, in the recent edition of his valuable work on the law of vendors and purchasers, (3 Sug.

Law of Vend. 458,) after stating the general principle that a lis pendens is of itself notice to a purchaser, says: c< A subpoena served is not, however, a sufficient lis pendens unless a bill be filed; but when the bill is filed the lis pendens begins from the service of the subpoena.” (See also Moor v. Welsh Copper Company, 1 Eq. Ca.

Abr. 39, pi. 14.) This common law rule of requiring purchasers at their peril to take notice of the pendency of suits in courts of justice, for the recovery of the property they are about to purchase, although it is nearly impossible that they should actually know that such suits have been commenced, has always been considered a hard rule, and is by no means a favorite with the court of chancery even in England. (See Sorrell v.

Carpenter, 2 Peer Wms. 483.) And in all the cases I have been able to find in the courts of this country, a service of the subpoena, as well as the issuing of the same, has been considered necessary to create a lis pendens, as against a purchaser who had no actual notice that he was purchasing property the title to which was in litigation. Thus, in Murray v. Ballou, (1 John. Ch.

Rep. 576,) Chancellor Kent says : “ The established rule is that a lispendens duly prosecuted, and not collusive, is notice to a purchaser so as to affect and bind his interest by the decree ; and the lis pendens begins from the service of the subpoena, after the bill is filed.” This last point, it is true, was not before him for consideration ; as the suit of Green v. Winter had been pending more than a year before the purchase by Ballou of a part of the subject matter of the litigation. But the dictum is still entitled to consideration as the opinion of a very distinguished equity judge. In the case of Lyle v.

Bradford, (7 Mon. Rep. 116,) the court of appeals in Kentucky recognized the distinction between the commencement of a suit,by the mere issuing of process against the defendant therein, and the creation of a lis pen-dens which is to affect the rights of purchasers of the subject matter of the litigation in such suit. And in reference to the latter, Judge Ousley says : “ It is true that for some purposes there is said to be no lis pendens until after process is served; and we entertain no doubt as to the correctness of the assertion in reference to the rights of strangers.” So in Baldwin v. Love, (2 J. J. Marsh.

Rep. 493,) where the complainant amended his bill, after answer, so as to subject other property to the payment of his demand, the same court decided that a purchaser of such property, before the defendant in the suit was duly notified of such amendment of the original bill, was not to be considered as a purchaser pendente lite. And in the case of Miller v. Kershaw & Connor, (1 Bailey’s Eq.

Rep. 479,) the court of appeals of South Carolina decided that there was no lis pendens, as against a purchaser from the defendant in a chancery suit, until the service of the subpoena; and that an acceptance of service of the subpoena as of a day prior to the sale of the property, under a previous agreement to accept the service at that time, would not make the decree binding upon such property in the hands of the purchaser. It may "be proper to observe, however, that a personal service of the subposna upon the defendant is not necessary to create a lis pendens where he has a known residence in this state.

For in case of his absence from home the subpoena may be served at his residence, upon his wife or servant, or some other member of the family of suitable age and discretion •, although the complainant’s bill cannot be taken as confessed against him on such a service, without instituting further proceedings to compel his appearance. (Thomas v. The Earl of Jersey, 2 Myl. & Keen, 398. Smith v. Parke, 2 Paige’s Rep. 298. 1 Grant’s Pr. 125. 1 Jfewl.

Pr. 75.) And where the defendant is proceeded against as an absentee under the statute, the actual publication of the notice of the order for him to appear and answer the complainant’s bill would probably be considered as equivalent to a service of the subpoena at the defendant’s place of residence, in creating a lis pendens. In the case before me, the defendants cannot be considered as purchasers or assignees of the property of Patten pendente lite, so as to subject the assigned property to the claims of his creditors in the suits in which the receiver was appointed.

And the injunction must, therefore, be dissolved.