The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-08
Supreme Court-Special Term
Decision BIZ the Hon. Judge Roosevelt.

Caqyles Weber &c. u.s. John Fo,oler dc Prior to the
statutory provision contained in the Revised Statutes
estate curing the Of SUITS it was the establish
ed rule of courts of equity that such purchasers whether
notified not took their titles subject to the result Of
the litigation The rule although seemingly necessary
to give effect to Char decrees and to obate the
to and nSnoss
at last the Interference Of the Legislature.
By the of 1929 incorporated in the Revised Statutes
it provided that, to render the fling of bill in
Chancery constructive notice to purchaser of real
estate il should be the duty Of the complainant therein
to file at the sao time with the clerk of county,
notice of the pendency of the suit and the duty Of the
clerk to make and keep In his Office index with such
references to the said notices as win enable all in
to search his Office for such notices without in
convenience" Among other requisites, the notice must
g set forth the title of the cause.
In naming the parties however in the title of the
cause it designated the defendant, Fowler, by the
of John Fowler instead of John Fowler and the ques
ton whether, notwithstanding this error in single
letter of single name there was or was not "sufR
Gent setting forth of the title of the case, to satisfy
The purchaser Osborne admits that he caused the title
of the property to be examined by counsel before paying
his money and he alleges that he had knowledge
formation Of the of any suit in regard to it.
The law however presures and such probably was the
fact that either he his agent in examining the index
against John f. Fowler. Was not this circumstance
sufficient to put person Of ordinary caution inquiry
Slight mistakes in the spelling of are and we'll
known to be- of daily and hourly occurrence. And it is
also well settled and well known rule of law that mid
die letters like junior additions although descriptive are
Johns R., sac; Franklin Talmadge j. R., a. Roose-
welt Gardiner, Cow, 463; Milk Christie, Hill,
su
not bound for greater certainty to put himself to the
very slight additional trouble Of looking at the notice it.
self Had he done he would have found that the suit
related to the identical property about which he
gotiatng that the plaintiff endeavorng get redress
end he the purchaser might have to stand in Fowler
shoes and respond to the Judgment obtained against the
wrongdoer Thus admonished them he either did did
not inquire he did, he had actual notice, and cannot
claim to be bona 6de purchaser in fact he did not he
guilty of gross negligence, and should take its
quences patiently and not attempt to place them the
shoulders Of the injured party 1t should be borne in
mind that the statutee of lis pendens is not the original
grant Of right with condition precedent attached-but
remedial provision in favor Of purchasers derogating
from the existing common law rights of suors in chan
Gerry To avail himself of it, therefore, the purchaser
nom dor ' is the maxim Of the law No man
allowed in spite Of warning, to shut his eyes and the
and won't see although he cannot legally perhaps BE-
made to must take the consequences and he charg
able precisely in the same manner as If he had SEEM
The notice in the present case or rather the index
fering it, it appears to abundantly sufficient to
put the purchaser inquiry and to charge him with all
would have isd He holds his title therefore subject to
the decree and had that decree directed Fowler whether
by the of John John F. to give the plaintiffs the
clearly entitled of the premises described in the notice
Osborne the purchaser pending the suit must have been
required TO co II Tor him. or 70 raty the act Done by
Fowler.
But what the decree which the plaintiffs, to efsc-
tuate the rights established and declared by the Court in
their favor elected to akeP Instead of specific per-
ormance operating the estate ITSELF they accepted
and for aught that appears, prayed for substituted
Equivalent IN money AND .hs decree accordingly nav
such that to which the plaintiffs adjudged to be
emit led ordered and deer eed that the said John Fowler
pay the same to the plaintiffs
Can the plaintiffs the allegation Of Fowlers subss-
quent insolvency. turn round and ask the Court in
effect make another and different decree9 II
me- especially against purchaser who has paid his
money and who, although negligent, had no actual
tce Of the suit that they cannot The election they have
made prscludes them 1t is issue, the appears
before me- between two innocent parties and the rule
potion cditio dfdns applies. As, however, other facts
and formal investigation, shall deny the present app
cation by petition with reservation to the plaintiffs Of
the right to file blu complaint to carry the decree
into execution making Osborne and such other persons
parties as they shall be advised
Prayer Of petition denied, without prejudice and with