Farmers Bank v. First Nat. Bank. We have closely examined all the evidence, and think the trial court did not err in this respect in its finding and judgment. It is not contended that Ann Enright paid for this land conveyed to her, and that the title was taken in her husband's name in trust for her without her knowledge or consent. She knew that the title was in her husband's name, and knew that it was properly in his name. The claim is that John Enright owed his wife $6,800, and conveyed the land to her in satisfaction of the debt. The evidence as to every item of the alleged indebtedness to his wife, except the amount which was protected to her by the judgment, is conflicting and unsatisfactory. The trial court might have found either for or against her upon the evidence in this regard. On the former appeal of this cause to the Supreme Court (First Nat. Bank v. Smith, 149 Ind. 443), that court, at page 446, said: "The evidence shows that the land was held in John Enright's name for nearly twenty-two years before he conveyed it to his wife, and that there was no consideration then paid to him for the deed to her. She even testified that she was not present when the deed to her was executed, and that she did not know anything about her husband having executed a deed to her until he handed it to her. In the light of this testimony, the deed to Ann Enright would look very much like a voluntary conveyance. If the deed to Ann Enright was fraudulent as to her, then the deed by her and her husband to their son Levi was confessedly fraudulent also, and that as to all parties, for it is admitted that there was no consideration whatever for the deed to him." We think the same can be said with equal force as applicable to the evidence before us, adduced upon the second trial. And this brings us to the second part of the controversy. If the deed from Ann Enright and husband to Levi was confessedly fraudulent, then the deeds from Levi and wife to appellant the Farmers Bank of Frankfort, Farmers Bank v. First Nat. Bank. and from the Farmers Bank of Frankfort to the Kuhns were fraudulent, provided they had notice of the fraud of the Enrights; and if appellants had notice of the pendency of the action affecting the title to the real estate in controversy, they must abide the judgment rendered in such action. The Farmers Bank of Frankfort knew of the fraud of the Enrights, because they had prosecuted an action similar to this in the circuit court of Clinton county against the Enrights, in which the fraud was directly charged in their complaint, and this complaint was introduced in evidence in this cause. The appellants, Kuhns and Kuhns, had actual notice from information given them by David A. Coulter, and the matter was discussed by them with him as to whether or not there would be danger in purchasing the land conveyed by Levi II. Enright to the Farmers Bank of Frankfort during the pendency of the appeal in the Supreme Court. By the lis pendens all persons were notified to beware of the title to the property in litigation. The doctrine of lis pendens is based on public policy and the necessity of giving effect to the proceedings of the court. Without it, the administration of justice might always be defeated by successive alienations of the property in litigation. Arrington v. Arrington, 114 N. C. 151; Watson v. Wilson, 32 Ky. 406, 26 Am. Dec. 459; Turner v. Babb, 60 Mo. 342; Lamont v. Cheshire, 65 N. Y. 30. The purchaser of property in litigation must take it subject to the final judgment of the court in the cause in which the question of title is being litigated. Appellees' lis pendens was filed upon the day the action was commenced. It complied with our statute in every particular. It was notice to all the world from the date of its filing until the final determination of the action that the title to the property therein described was in dispute, and that any pur chaser must abide the judgment of the court. And one purchasing real estate after judgment rendered in the trial Comstock v. Stoner. court becomes a purchaser pendente lite, and takes the chances incident to an appeal, since an appeal is not the commencement of a new action, but the prosecution of the same action in a higher court. These are settled rules of law founded in reason, and universally recognized and upheld by all the courts of this country. Appellants were not good-faith purchasers without notice. They took a conveyance of the land in controversy, knowing that the title in their grantor was disputed, and might, in a pending action, be held invalid. We think the judgment of the trial court ought to be in all things affirmed. Judgment affirmed. COMSTOCK V. STONER. [No. 4,308. Filed February 25, 1903.] APPEAL AND ERROR.-Transcript.-Certificate of Clerk.-Seal of Court.Dismissal of Appeal.-Where the certificate of the clerk to the transcript is not authenticated by the seal of the court, the appeal will be dismissed. From Elkhart Circuit Court; J. D. Ferrall, Judge. Action by John D. Comstock against Laura E. Stoner. From a judgment for defendant, plaintiff appeals. Appeal dismissed. L. W. Vail and P. L. Turner, for appellant. E. B. Zigler, Anthony Deahl and B. F. Deahl, for appellee. BLACK, P. J.-The certificate of the clerk below to the transcript on appeal in this cause has not the seal of the court affixed thereto. Therefore the transcript is not authenticated as required by the statute and the decisions of the Supreme Court and of this Court. §661 Burns 1901; Jackson v. Van Devender, 76 Ind. 27; Conkey v. Conder, 137 Ind. 441; Watson v. Finch, 150 Ind.183; Fidelity, VOL. 30-34. Smith v. Amiss. etc., Union v. Byrd, 154 Ind. 47; Board, etc., v. State, ex rel., 156 Ind. 550; Garrigus v. Board, etc., 22 Ind. App. 303; Ewbank's Manual, $117. Appeal dismissed. SMITH V. AMISS, TRUSTEE. [No. 4,292. Filed February 26, 1903.] VENUE.-Judge Related to Party in Interest.-Where in an action by an improvement company on a promissory note, it appeared that a son of the judge was a member of the company, although not a party named in the action, defendant was entitled to a change of venue, under the second clause of §416 Burns 1901. p. 532. SAME.-Counter-Affidavits.—Where an affidavit is filed for a change of judge on the ground of relationship of the judge, counter-affidavits are not admissible to disprove the charge. p. 533. SAME.-Delay.-Waiver.-Where in the trial of an action by a company on a promissory note the evidence disclosed that one of the members of the company was a son of the judge, and no change of venue was asked therefor until four days thereafter, when the court had rendered a decision for plaintiff, the defendant thereby waived his right to a change, no excuse being shown for the delay. p. 534. From Huntington Circuit Court; J. C. Branyan, Judge. Af Action by Joseph G. Amiss against Mahlon F. Smith. From a judgment for plaintiff, defendant appeals. firmed. A. G. Johnson and T. J. Smith, for appellant. ROBINSON, J.-Appellee recovered a judgment against appellant on certain notes. Appellant's second paragraph of amended answer to which a demurrer was sustained, contained substantially the same facts as his cross-complaint, to which a demurrer was overruled. The court found the facts specially. No attempt has been made to bring the evidence into the record. Smith v. Amiss. Appellee and others interested in establishing a factory at the city of Huntington platted adjoining land into town lots. This land was separated from the termini of certain streets in the city by an unplatted tract about forty rods wide over which appellee and others had no control. With knowledge of this, appellant subscribed for a lot, agreeing to pay $200 therefor,-one-third cash at date of deed, the balance in two equal payments, at one and two years. Relying upon representations made that the improvement company, of which appellee is trustee, would open the streets of the city through this strip of land, and into the platted land, without cost to him, appellant agreed, in writing, to purchase a certain lot, but it is found that the parties making such representations and promises had no authority to make them. Afterwards appellant paid to appellee $66.66, and executed two notes May 7, 1896, for like amounts, obtained from appellee a deed conveying to him the lot in fee, and executed a mortgage on the lot to secure the notes. Appellant retained the deed until January 24, 1901, when he tendered a reconveyance, which was refused. The intrinsic value of the lot at the time of the conveyance was $40. The streets have not been changed since the time of the subscription and the execution of the deed, notes, and mortgage. The court found the aggregate amount due on the notes in principal, interest, and attorney's fees, and stated as a conclusion of law that appellee ought to have judgment for that amount. Appellant subscribed for a lot, and agreed to pay a certain price for it, upon representations made by parties having no authority to make such representations. There is no showing that appellee or the improvement company was in any way responsible for these representations. It does not appear that there was any mutual mistake, or that any fraud or deception was practiced by appellee, or by the improvement company. After appellant subscribed for the lot, he paid the cash and executed the notes for the lot, and |