487. Lis pendens.

The doctrine of lis pendens, by which one purchasing land from a party to a pending litigation concerning such land takes subject to the results of such litigation, is based, not on the theory that such purchaser has notice of the adverse claim, but rather on the principle that, pending the litigation, a party thereto cannot transfer his rights in the land to others, so as to prejudice another party to the litigation, since otherwise the decision might be utterly ineffectual.84 The courts, however, usually refer to the doctrine as constituting a branch of the law of notice, a pending litigation being said to be notice to purchasers from parties thereto, and this is, in most all cases, the result of the doctrine. Consequently it is not improper to discuss the doctrine in connection with the law of notice.

The doctrine of lis pendens is sometimes spoken of as being peculiarly applicable to equitable proceedings, on the ground that, in the case of a legal action, a purchaser pending the litigation can take only the title of his vendor, irrespective of notice; but this principle in regard to legal actions seems to involve but another statement of the doctrine of lis pendens, and the doctrine is regularly applied in the case of proceedings concerning land at law, as well as in equity.85

92 Am. Dec. 422; Rhodes v. Outcalt, 48 Mo. 367; Shirk v. Thomas, 121 Ind. 147, 16 Am. St. Rep. 381.

84 2 Pomeroy, Eq. Jur. § 632; Bellamy v. Sabine, 1 De Gex & J. 566; Newman v. Chapman, 2 Rand. (Va.) 93, 6 Gray's Cas. 464; Dovey's Appeal, 97 Pa. St. 153; Arrington v. Arrington, 114 N. C. 151; Watson v. Wilson, 2 Dana (Ky.) 406, 26 Am. Dec. 459; Lamont v. Cheshire, 65 N. Y. 30; Norris v. Ile, 152 Ill. 190, 43 Am. St. Rep. 233; Cheever v. Minton, 12 Colo. 557, 13 Am. St. Rep. 258.

85 See 2 Pomeroy, Eq. Jur. § 633; Metcalfe v. Pulvertoft, 2 Ves. B. 200; McIlwrath v. Hollander, 73 Mo. 105, 39 Am. Rep. 484; Lamont v. Cheshire, 65 N. Y. 30; Smith v. Hodsdon, 78 Me. 180; Rollins v. Henry, 78 N. C. 342; Cheever v. Minton, 12 Colo. 557, 13 Am. St. Rep. 258; Norris v. Ile, 152 Ill. 190, 43 Am. St. Rep. 233; Houston v.

Applications of the doctrine accordingly occur in connection with actions of ejectment, as well as in connection with equitable proceedings, such as suits to foreclose a mortgage or enforce any other lien,87 to establish a trust in land,88 or to set aside a conveyance.89

A purchaser is affected with notice only if the land is described with reasonable certainty in the pleadings in the litigation.90 A purchaser from a person who is not a party to pending litigation concerning the land is not affected with notice thereof.91

By statute in many of the states the original doctrine of lis pendens has been modified by statutory provisions requir ing a notice of lis pendens to be registered or recorded in some particular mode, in order that a purchaser for value Timmerman, 17 Or. 499, 11 Am. St. Rep. 848; Tilton v. Cofield, 93 U. S. 163.

86 Walden v. Bodley's Heirs, 9 How. (U. S.) 34; Wetherbee ▼. Dunn, 36 Cal. 147, 95 Am. Dec. 166; Smith v. Hodsdon, 78 Me. 180; Snively v. Hitechew, 59 Pa. St. 49; Rollins v. Henry, 78 N. C. 342; Elizabethport Cordage Co. v. Whitlock, 37 Fla. 190.

87 Dodd v. Lee, 57 Mo. App. 167; Owen v. Kilpatrick, 96 Ala. 421; Burleson v. McDermott, 57 Ark. 229; Norris v. Ile, 152 Ill. 190, 43 Am. St. Rep. 233; Rosenheim v. Hartsock, 90 Mo. 357; O'Brien v. Putney, 55 Iowa, 292.

88 Walker v. Elledge, 65 Ala. 51; Pratt v. Hoag, 5 Duer (N. Y.) 631. Mellen v. Moline Malleable Iron Works, 131 U. S. 352; Jackson ▼. Andrews, 7 Wend. (N. Y.) 152, 22 Am. Dec. 574, 6 Gray's Gas. 473; Evans v. Welch, 63 Ala. 250; Leuders v. Thomas, 35 Fla. 518, 48 Am. St. Rep. 255; Watson v. Wilson, 2 Dana (Ky.) 406, 26 Am. Dec. 459. 90 Miller v. Sherry, 2 Wall. (U. S.) 237; Low v. Pratt, 53 Ill. 438; Todd v. Outlaw, 79 N. C. 235; Lewis v. Mew, 1 Strob. Eq. (8. C.) 180; Griffith v. Griffith, 9 Paige (N. Y.) 317.

91 Miller v. Sherry, 2 Wall. (U. S.) 237; Green v. Rick, 121 Pa. St. 130, 6 Am. St. Rep. 760; Allen v. Morris, 34 N. J. Law, 159; Herrington v. Herrington, 27 Mo. 560; Parks v. Jackson, 11 Wend. (N. Y.) 442, 25 Am. Dec. 656; Scarlett v. Gorham, 28 Ill. 319; Parsons ▼. Hoyt, 24 Iowa, 154; Travis v. Topeka Supply Co., 42 Kan. 625.

and without actual notice may be charged with notice of the litigation."2

There is a conflict in the decisions as to whether a suit to enforce a conveyance or incumbrance, such as a mortgage which has not been recorded, is sufficient to make a purchaser pending the litigation a purchaser with notice, so as to render the unrecorded instrument effective as against him.93

92 2 Pomeroy, Eq. Jur. § 640. See Smith v. Gale, 144 U. S. 509; Bensley v. Mountain Lake Water Co., 13 Cal. 306, 73 Am. Dec. 575; Jorgenson v. Minneapolis & St. L. Ry. Co., 25 Minn. 206; Sheridan v. Andrews, 49 N. Y. 478; Todd v. Outlaw, 79 N. C. 235; Alterauge v. Christiansen, 48 Mich. 60.

98 That it does have such effect, see Bolling v. Carter, 9 Ala. 921, 6 Gray's Cas. 477; Thoms v. Southard, 2 Dana (Ky.) 475. That it does not, see Newman v. Chapman, 2 Rand. (Va.) 93, 14 766, 6 Gray's Cas. 464; Douglass v. McCrackin, 52 Ga. 596. McCutchen v. Miller, 31 Miss. 65, 85.

(1100)

Am. Dec.

See, also,

In some states there exist statutory provisions for the regis tration of title to land, the effect of which is to make a certificate of title, issued by an official named in the statute, conclusive as to the character of the title of the person to whom it is issued, and as to the rights of other persons in connection with such title.

488. The purpose of the legislation.

The system of registration of titles, frequently called the "Torrens System," has for its purpose the establishment of a system by which the title to a particular piece of land will be always ascertainable by reference to a certificate issued by a government official, made by law conclusive in this regard. Such a certificate is first issued after a judicial proceeding in the nature of a suit to quiet title, and all subsequent transfers or transactions affecting the title are either noted on this certificate, or on a new certificate substituted therefor. The advantages claimed for this system over that

1 After Sir Robert Torrens, of South Australia, who first introduced it into use among English speaking people. A similar system had been in vogue in some parts of the present German empire for many years.

now in vogue in this country, by which a purchaser is dependent chiefly on the record of conveyances for knowledge of the state of his vendor's title, are many. Chief among

them are the saving to the community of the cost of a new examination of the title in connection with each transfer or other transaction affecting the land, the removal of all uncertainties as to the title, which can be accomplished only partially by the present system of examining the records, and the greater speed with which transfers can be effected, after the title has once been made the subject of judicial proceedings for its establishment. The details of the legislation providing for the introduction of this system differ greatly in different countries, and, so far as introduced in this country, in different states, and a mere outline of the methods of procedure thereunder can here be given.2

$489. The method of registration.

In order that land may be registered under the statute, and the initial certificate of title obtained, the following mode of procedure is usually prescribed: The person or persons claiming the ownership of the land in fee simple file an application, addressed to the court having jurisdiction under the statute, describing the land, setting forth any estates, interests, or liens outstanding in other persons, so far as known to the petitioner, the name of the occupant, and the names of owners of adjoining land. Upon the filing of the application it is referred to one or more official examiners of title, who, after making a proper examination, report to the court. Any persons who appear to be interested in the land are made parties, and the statute provides for the sending of no

2 There is a great deal of literature on the subject, to a great extent in the form of articles in legal periodicals. Lists of such arti cles may be found in Morris, Land Registration (English), and Land Title Registration, by Theodore Sheldon, Esq. (American).