APPLICATION OF THE RULE OF LIS PENDENS.

Court of Appeals for Crawford County.

#### Chester A. Meck v. Bertha Clabaugh.

Decided, April 20, 1922.

*Reason for the Rule of Lis Pendens*— Extent *to which a Purchaser Pendente Lite is Bound..*

1. The rule as to *Us pendens*is founded on its necessity to prevent alienation of property in dispute and to give effect to court proceedings, and does not rest on the theory of notice.

2. A purchaser *pendente lite*of property involved in litigation, is bound by the decree or judgment rendered in the case pending, and no further, and is not constructively bound by a claim of the party to the pending suit other than that which is consummated in the final judgment.

*Chester A. Mdch,*for plaintiff.

*Edward J. Myers,*for defendant.

Hughes, J.; Crow, P. J., and Warden, J.

This is an action in partition before this court on appeal. The facts, as we find them to be, are as follows:

During the year 1917, the defendant, Bertha Clabaugh, and her husband, purchased Lot Number 180Q in the city of Bucyrus, Ohio, taking title jointly for the same and in et|ual *415moieties. In February of 1921, the defendant filed a petition in the court of common pleas of Crawford county, Ohio, praying for divorce and alimony and custody of children, and for a determination of che property rights between her and her husband.

In this petition she alleged that all of the purchase money, with which this lot was procured, had been furnished by her. During the pendency of this action the plaintiff, without any actual knowledge of the claims made by the defendant in this suit, purchased from her husband, his half interest in this lot and took his warranty deed for the undivided half thereof.

Defendant’s action was thereafter prosecuted to the end that divorce and alimony were denied, there was no adjudication of property rights, and her petition was dismissed at her costs.

From this judgment she prosecuted error to the court of appeals, where the judgment of the court below was affirmed.

In this action for partition the defendant sets forth in her answer, practically the same claim made in her divorce case; that is, that the purchase price of this lot was furnished by her and that her husband had no interest therein, and she seeks to enforce a trust for her benefit against the plaintiff here, on the theory that he was a purchaser *pendente lite.*

There may be found in decisions and in some language used by text-writers, sufficient to justify this contention. However, we believe this comes from a misconception of the rule, for while *Us pendens*does operate as notice pending the suit, it is not based upon notice, but is established to prevent the alienation of property which is the subject-matter of litigation.

> “The rule, as to the effect of *lis pendens,*is founded on the necessity of such rule to give effect to the proceeding of a court of justice. Without it, every judgment and decree for specific property might be rendered abortive by successive alienations. This necessity is so obvious that there is no occasion to resort to the presumption of notice of the pendency of the suit, to justify the rule. This principle, however necessary, was harsh in its effects on purchasers, and was confined in its operation to the extent of the policy upon which it was founded; that is, to the giving full effect to the judgment or decree which might be rendered in the suit depending at the time of pur*416chase. As a proof of this, if the suit was not prosecuted with effect, as if a suit at law was discontinued, or a suit in chancery dismissed for want of prosecution, or for any other cause not upon the merits, although the plaintiff might bring a new suit for the same cause, he must make him who purchased during the pendency of the former suit a party; and, in this suit, the purchaser would not be at all affected by the pendency of the former suit at the time of his purchase. If a fob *pendens*was notice, then it should bind the purchaser, like actual notice in any subsequent suit prosecuted for the same cause; but this it does not. English judges and writers have carelessly called it notice, because, in the one single case of the suit prosecuted to a judgment or decree, it had the same effect upon the interest of a purchaser as notice had, though for a different reason. But the courts have not in any case given it the real effect of notice.” *Cherry*v. *Dickerson,*194 S. W., 690; *Bailey*v. *Ford,*200 S. W., 797.

> “The sole object of *Us pendens*is to keep the subject in controversy within the power of 'the court, until the judgment or decree shall be entered, and thus make it possible to give effect to decrees and judgments of courts of justice.” *Cook*v. *Hendricks,*90 S. E., 383; *Glatti*v. *Bradford,*62 Southern, 643.

Our attention has been called to no case in Ohio which defines the rule with this particularity.

However, our Supreme Court has recognized the rule that the decree of the court binds the property in the hands of the purchaser, although he is not a party and though he purchased with no actual notice of the claim of the party in the suit, and that he is bound by the decree that is eventually entered. *Fox*v. *Rader,*28 O. S., 181; *Benton*v. *Schaffer,*47 O. S., 117; *Stewart*v. *Railway Company,*53 O. S., 151.

It must follow that plaintiff’s title to the undivided one-half of the lot in question here, is not affected by any claim the defendant might have inasmuch as the decree and judgment in her suit prosecuted against her husband, was adverse to her and her petition was dismissed without any relief granted to her.

Partition will therefore be awarded.