#### Cook et al. *v.*Mozer.

*Lis pendens—Scope and purpose—Divorce, alimony and title to property—Judgment on cognovit note by third party.*

1. The doctrine of *Us pendens*has long been established and recognized as the general law of the land upon the broad public policy of maintaining the status quo of rights and interests in property involved in litigation, not only as between the parties thereto but as to third parties having conflicting interests, until the action pending has been finally adjudicated.

2. The doctrine of *lis pendens*has appropriate and special application in an action for divorce and alimony, especially where the property directly involved and claimed is specifically described in the pleadings. *(Tolerton*v. *Williard,*30 Ohio St., 579, approved and followed.)

(No. 17636

Decided May 22, 1923.)

Error to the Court of Appeals of Lucas county.

*31Rose Mozer, in July, 1920, filed a petition for divorce and alimony in the court of common pleas of Lucas county. After stating her grounds for divorce, she also enumerated certain property then standing in the name of her husband, Charles Mozer. Among the various properties described was the following:

“Northeast ten (10) feet of lot No. Three (3) and all of lot No. Four (4) in block Sixty (60) on the plat of North Toledo, an addition to the city of Toledo, Lucas county, Ohio, situate at 2315 Summit street.”

In her petition she averred that while the legal title stood in the name of her husband, she in truth and fact was the equitable owner thereof.

She also prayed for an equitable division of her husband’s property and their joint property as and for her just and reasonable alimony. The cause was heard on the 25th day of November, 1920, and on the 6th day of January, 1921, the common pleas court granted her a divorce and decreed to her all the right, title and interest in the property or real estate above described, which decree was duly recorded on the 8th day of January, 1921, by order of the court of common pleas.

While the divorce cause was pending, to-wit, on the 23d day of September, 1920, Fred Cook filed his petition in the court of common pleas of Lucas county setting forth a cognovit note given him theretofore by said Charles Mozer, praying for judgment on such petition and note, which judgment was entered forthwith as of the 23d day of September, 1920. Thereafter Fred Cook caused an execution to be issued on the judgment and caused the sheriff of *32Lucas county to levy on the aforesaid premises described in plaintiff’s petition theretofore filed for divorce and alimony. Whereupon the sheriff! of Lucas county thereafter advertised the premises to be sold on the 22d day of January, 1921, to satisfy the judgment on the cognovit note.

On the day preceding the sale, to-wit, the 21st of January, 1921, Eose Mozer filed a petition in the court of common pleas of Lucas county seeking to enjoin John Taylor, sheriff of Lucas county, and Fred Cook, from selling or causing to be sold said property as advertised, alleging in her petition that—■

“Upon the 8th day of July, 1920, and for several years previous to said date, she was the owner of the property aforesaid, and that upon the aforesaid date she filed her petition in the court of common pleas, Lucas county, Ohio, cause No. 83135, entitled *Rose Moser*v. *Charles R. Moser,*describing aforesaid property ** '*** and setting up in said petition among other allegations that the said Charles E. Mozer was trustee for her use and benefit of the aforesaid described real estate with appropriate prayer in said petition, praying an injunction against Charles E. Mozer, in disposing of said property, and praying the court to decree to her said property, and praying for divorce and alimony on defendant’s aggression as aforesaid.”

Plaintiff further in her petition set up the fact of the hearing in such cause for divorce and alimony in the court of common pleas and the allowance of her prayer for divorce and for alimony, the latter including the real estate involved in the cause herein. Plaintiff further asked for a perpetual in*33junction against the sale and for general equitable relief.

To that petition defendant answered, which, omitting the formal parts, is as follows :

‘ ‘ Further answering defendant denies that plaintiff was the owner of the real estate described in the petition and specifically alleged that by the decree rendered in cause No. 83135 the court of common pleas found that the title and property rights in said property were in Charles R. Mozer and that said court of common pleas awarded plaintiff certain alimony, among other things the title to the property right in the property described in this petition. ’ ’

Defendant, however, qualified this admission with the language that the court in its decree “specifically ordered that whatever rights plaintiff in cause who was plaintiff in the aforesaid cause should have in said property should date from the time of filing the journal entry in said cause 83135, and such entry was filed as of the 8th day of January, 1921.”

Defendant further said:

“That the judgment against Charles R. Mozer, who was the husband of Rose Mozer, was a judgment for money only and that having full confidence and faith in the ability of said Charles R. Mozer to pay his debts, the money represented in this judgment was advanced to him, and that the action of the plaintiff ** * **operates as a fraud upon this defendant and is contrary to equity and good conscience; that the plaintiff in this action well knew of the indebtedness of her former husband and knew that his ownership of real estate was the reason for his obtaining credit, and this plaintiff also is *34well aware of the fact that said Charles R. Mozer is unable to pay the judgment in any other manner than by having his real estate subjected to sale.”

And further said that—

“This judgment is a lien against said property and that said property should be subjected to the payment of said judgment and should take priority over the judgment of alimony awarded to plaintiff.”

Defendant denied “each and every other allegation in plaintiff’s petition contained not herein specifically admitted to be true.”

To that answer a reply was filed by Rose Mozer, in which she “denies each, every and all of the other allegations set forth in defendant’s answer,” except the allegation that John Taylor was the sheriff of the county.

The reply continues:

“The replying plaintiff especially denies that she perpetrated a fraud in any wise upon the defendant [Fred Cook], and that she knew of the indebtedness of her former husband, and avers that he was able to pay the judgment against him, and that at the time he left her he had some $50,000 in cash and securities; and that defendant Fred Cook herein, together with one Ackerman, the original owner of the note, colluded with the said Charles Mozer for the purpose of exacting a money judgment to be paid out of her property herein, of which she was the true and lawful owner, on and before the 8th day of July, 1920, and ever since said date; and that at the time said alleged judgment was taken by the said Fred Cook against the said Charles Mozer, that he well knew that she was the owner *35of said property, and that the allegations of her petition which was on file on the 8th day of July, 1920, advised this said defendant Fred Cook by virtue of the lis pendens doctrine when he took his cognovit judgment in October, 1920.

“Plaintiff denies that it was especially ordered that whatever right plaintiff had in her property should date from the time of filing of the journal entry in cause No. 83135 on the 8th day of January, 1921, and she does herein set up as a part of her reply the pronouncement and judgment of the court in *haec verba,*as follows.”

Then follows the journal entry showing the nature and extent of the judgment in the divorce and alimony cause.

Thereafter Fred Cook filed a motion for judgment on said pleadings, which motion of Fred Cook was sustained. Rose Mozer’s motion for new trial was overruled. An appeal was taken to the Court of Appeals, which court pronounced its judgment to be as follows:

“Now came the parties herein by their attorneys, and thereupon this cause came on for hearing this June 5, 1922, on the motion for judgment on the pleadings, and upon said pleadings and motion said cause was submitted to the court, on consideration whereof the court further finds, on issues joined for the plaintiff, that the allegations of the petition are true and that the plaintiff is entitled to the relief prayed for in her petition.

“It is therefore considered and decreed that the defendants, and each of them, and their agents herein, be perpetually enjoined from collecting or otherwise enforcing said judgment in said petition con*36tained,” so far as affecting the premises herein described, and said sale was perpetually enjoined.

The final portion of the decree is as follows:

“It is therefore considered and decreed that the defendants herein be, and hereby are, perpetually enjoined from enforcing said judgment against the real estate of the plaintiff described herein, as hereinbefore set forth.”

Error is now prosecuted to this court to reverse the judgment of the Court of Appeals.

*Messrs.*Seney, *Alexander S Donovan,*for plaintiffs in error.

*Mr. F. A. Carabin; Mr. Carl J. Christensen*and *Mr. Frank J. Ssumigala,*for defendant in error.

Wanamaker, J.

The major question in this case centers about the doctrine of *lis pendens.*What is this doctrine? It is perhaps most clearly and concisely stated in 25 Cyc., 1450:

“The general rule is that one not a party to a suit is not affected by the judgment. The exception is that one who acquires an interest in property which is at that time involved in litigation in a court having jurisdiction of the subject-matter and of the person of the one from whom the interests are acquired, from a party to the proceeding, takes subject to the judgment or decree, and is as conclusively bound by the result of the litigation as if he had been a party thereto from the outset. This is so irrespective of whether he has been made a party to the proceeding, or had actual notice of the pend-ency of the proceeding, and even where there was no possibility of his having had notice of the pend*37eney of the litigation. It is immaterial that a purchaser was a *bona fide*purchaser and for a valuable consideration. While there is no doubt whether *lis pendens*has the effect of constructive notice, it is almost universally held that strictly speaking the doctrine of *Ms pendens*is not founded upon notice but upon reasons of public policy founded upon necessity. For practical purposes, however, it is immaterial whether the doctrine of *Us pendens*be considered as based on constructive notice or on public policy. It has been said that it is essential to the existence of a valid and effective *lis pendens*that three elements be present:' (1) The property must be of a character to be subject to the rule; (2) the court must have jurisdiction both of the person and the *res;*and (3) the property or. *res*involved must be sufficiently described in the pleadings. It may be .added that the litigation must be about some specific thing that must be necessarily affected by the termination of the suit.”

At page 1459 the doctrine is briefly discussed as to actions for divorce or to compel support:

“Ordinarily a suit for divorce or to compel support, being of a personal nature, is not *Us pendens;*but a suit for divorce and alimony is *Us pendens*where the complaint describes specific property which is sought to be set apart to the complaining party or charged with the payment of the sum claimed, and where such relief may be granted in a proper case.” ' (With a large number of cases cited.)

The Court of Appeals applied this doctrine in favor of Rose Mozer upon the authority of *Tolerton*v. *Williard,*30 Ohio St., 579.

*38The syllabus in that case reads as follows:

“If a petition for divorce and alimony by the wife specially describes certain real estate of the husband, charging it with equities of the wife, and asking an injunction to prevent alienation *pendente lite,*and also equitable relief, and the decree therein is such as that from it, it may be found that the court acted on those equities and favorably thereto, the proceedings operate as a *lis pendens,*and the decree for alimony and settling equities will be a lien on the lands, preferable to that of a mortgagee who had actual notice of the proceedings for divorce and alimony, and whose mortgage was executed and recorded, pending those proceedings."

In the opinion of this case, the court quotes *Hamlin’s Lessee*v. *Bevans,*7 Ohio, pt. 1, 161, 164, 28 Am. Dec., 625. This case involved a question of priority between judgments and a decree for alimony. The court said:

“Where the object of a suit, in law or in equity, is to recover specifically a described piece of real estate, the pendency of the suit is held to be notice to all the world of the claim, and a final judgment or decree in his favor overreaches intermediate purchases, that is, purchases made pending the suit. * * * So, if the suit be against a trustee, to affect his title to land as trustee, and a final decree be rendered to that effect, the land is bound from the service of process."

Judge Wright at page 588 of the opinion in the *Tolerton case, supra,*further observed:

“In that case *[Hamlin’s Lessee, supra],*the court observe that the petition for divorce alleged no claim to any specific tract of land. * * *

*39“In the case before us, the property is described so that any who chose to inquire might find out precisely what it is.”

This doctrine is sound and wholesome, in that it preserves the *status quo*of all conflicting rights and interests in the property in question until there is a final adjudication of the issues raised in the pending suit.

The judgment of Fred Cook, obtained upon a cognovit note upon which he caused execution to issue against the identical property claimed by Rose Mozer, fully described in her petition for divorce, could not become in any sense a charge upon that property until September, 1920. Said suit for divorce, alimony and equitable relief, describing the identical property, having been brought the preceding July, 1920, any prospective creditor of Charles Mozer was bound in law and fact to take cognizance of the relation that Rose Mozer sustained to him as his wife, together with all the liabilities that arose by reason of such relations, which are for the purposes of this case fully pleaded in the petition as to her husband’s property, whether vested, contingent, or inchoate.

These various interests of the wife in the property of the husband, while the marriage contract is being fully and faithfully observed, are largely, of course, contingent and inchoate. When, however, that marriage contract has been breached and that breach is pleaded in a pending suit between the parties, with full notice to all the world of such breach, and the property rights and interests claimed, such breach under the laws of Ohio enlarges those property rights so as to permit not *40only a setting off of the wife’s individual property free from all claims of the husband, but likewise permit an equitable division of the husband’s property by reason of his aggressions. As to all this, the pending suit is notice to all prospective creditors, including Charles Mozer’s brother-in-law and his assignee.

It must be further remembered that this action in injunction was brought by the wife, Eose Mozer, against Fred Cook and the sheriff, both of whom filed answers, which were replied to with a general denial, followed by motion made in the court of common pleas for judgment on the pleadings. Thai motion was made by Fred Cook.

The case was appealed to the Court of Appeals upon the same pleadings and the same motion, whereupon that court entered judgment in favor of Eose Mozer.

Upon that state of the pleadings there were certain very important facts in issue, among which was the fraud and collusion between the husband and his brother-in-law, to whom the original note was given, which the brother-in-law subsequently assigned to Fred Cook. It was claimed that such fraud and collusion had for its purpose the defeat of the wife as to her equities and alimony in said property.

The Court of Appeals, however, took the view that the major question—the doctrine of *lis pendens*—controlled the case, notwithstanding the issues of fact still involved in the pleadings, and Fred Cook having made the motion is not now in a position to complain by reason of the remaining issues of fact-involved in the pleadings being undecided.

*41From the whole record, we find that substantial justice was done, and the judgment below is therefore affirmed.

*Judgment affirmed.*

Jones, Day and Allen, JJ., concur.

Kobinson, J., concurs in the syllabus, but not in the judgment.