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A Treatise on the Law of Lis Pendens: Or the Effect of Jurisdiction Upon Property Involved in Suit A Treatise on the Law of Lis Pendens: Or the Effect of Jurisdiction Upon Property Involved in Suit
By John I. Bennett
2000/12 - Beard Books
1587980908 - Paperback - Reprint -  527 pp.
US$34.95

The first exhaustive treatment of lis pendens, a long established rule in the law of real property.

Publisher Comments

Category: Law

This title is part of the Treatises list.

Of Interest:

A Treatise on the Law and Practice of Voluntary Assignments for the Benefit of Creditors

A Treatise on the Law of Liens: Common Law, Statutory, Equitable, and Maritime 

The rule of lis pendens arises when a suit concerning property commences, and provides that a purchaser may be bound by the judgment in the action without being made a party. Its object is to keep the subject matter within the court's jurisdiction and allows the court to give effect to its judgment. This detailed book, which is perhaps the first exhaustive treatment of the topic, covers: the history of the rule traced back to the early 1600s; the principle upon which it is based; the commencement, continuance and close of lis pendens; what property is subject to it; the necessary elements to create and make it valid; what constitutes a full prosecution of a case to maintain its validity; the general application of the rule to cases as they occur in practice, classified by subjects; the lis pendens statutes of the various States and the interpretation by their courts; and lis pendens as a defense.

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CHAPTER I.
THE ORIGIN AND HISTORY OF THE DOCTRINE OF LIS PENDENS

Lord Bacon adopted the rule into chancery 57
Definition of terms 58
Early judicial history of lis pendens 59
Early decision of Lord Keeper Finch 60
Early decisions of Lords Nottingham and Camden 60
Early decisions of Lords King and Hardwicke 61
Other early cases 61
Supposed to be adopted by analogy 62
Derived from the Civil Law 62
Lis pendens in other countries 63
Conclusions upon the subject 64

CHAPTER II.
THE PRINCIPLE UPON WHICH LIS PENDENS IS BASED.

The object of lis pendens 65
Importance of correctly understanding it 65
Sole object of the rule 66
Chancellor Kent's views 69
The rule should not be promotive of fraud 74
Why sometimes termed "Notice" 75
Constructive notice lis pendens 79
Notice of court proceedings presumed 80
John Newland's views 81
Caveat emptor as applied to lis pendens 82
Territorial scope of lis pendens 84
Extent of jurisdiction further considered 87
Conclusions 90

CHAPTER III.
COMMENCEMENT, CONTINUATION AND CLOSE OF LIS PENDENS

Importance of the subject 91
Former practice as to filing bills 92
Statute upon the subject 94
The common law rule as to commencement of lis pendens 95
The rule lis pendens of ancient origin 96
Service before bill filed 96
Common law rule unsatisfactory 97
When amendments are filed 97
When no bill filed, no lis pendens 98
Analogous rule in attachment 99
Rule in ejectment 99
In bill filed against partnership 100
Service upon one member of the firm 100
Where service is accepted 101
Where cases are remanded 101
Where writ of error is sued out 101
Where sheriff is instructed 101
Where clerk is instructed 102
Where one of several defendants dies without service 102
Where sole defendant dies before service 103
Commencement of suit in Connecticut 103
Commencement of suit in Arkansas 104
Commencement of suit in Vermont 104
Commencement of suit in Mississippi 105
Commencement of lis pendens and suit in Missouri  105
Commencement of suit in West Virginia 105
Commencement of suit in Kentucky 106
When generally chancery suits commence 106
When service by publication 107

CHAPTER IV. 
COMMENCEMENT, CONTINUATION AND CLOSE OF LIS PENDENS, CONCLUDED

When service upon defendants differently made 108
Publication in attachment 109
When statute express 110
Where two writs issued 110
Where no writ issued 110
Issuance of writ will not relate back 111
Commencement of suit in England 111
When limitation barred 112
Where bill required to be filed before subpoena 112
Statute of Illinois 113
Statute of Texas 114
Simplification of rule 115
Reason for rule as above 115
No reason for postponement to service 116
Statute of Iowa 117
The court should exercise discretion 118
Question of fact sometimes involved 118
A writ of error a new lis pendens 118
Under lis pendens statutes 119
No lis pendens until bill filed 119
The common law authorities not uniform 119
Proof of publication 120
Continuous for some purposes until decree executed 120
Effect of orders of dismissal in chancery 121
Where order final, bar conclusive 122
When lis pendens ends 124

CHAPTER V.
AS TO WHAT PROPERTY THE RULE LIS PENDENS APPLIES -- WHAT MAY BE RES LITIGIOSA

Whether applicable to personal property 126
English authorities 128
Authorities in this country 132
Authorities not all in harmony 139
Scope of lis pendens as to chattels 141
notice lis pendens as applied to slaves 144
Lis pendens will apply to steamboats 145
Does not apply to negotiable paper 146
Municipal bonds commercial paper 148
Does not apply in tax proceedings 150
Does not apply in condemnation proceedings 151
The right to an office subject to lis pendens 152

CHAPTER VI.
WHAT ELEMENTS NECESSARY TO CONSTITUTE THE RES LITIGIOSA.

General statement---res litigiosa 153
Notice of facts averred in pleadings 153
As to the description of the property required 154
When description sufficient to put on inquiry 157
When description insufficient for lis pendens 159
Created by amendments 160
Property described in interrogatory 161
The claimant of the res must be impleaded 162
The court must have jurisdiction 163
The primary object of suit not material 163
Conclusions 165

CHAPTER VII.
WHAT CONSTITUTES A "FULL PROSECUTION."

Rule requires full prosecution  167
A reasonable excuse for delay may be shown 168
Lord Nottingham's construction 168
Early decision of Lord Brougham 169
Delays in chancery proceedings 172
Presumption in favor of continuance 173
Otherwise a dangerous discretionary power 173
Loose language of some of the courts 174
Not a continuous prosecution 175
Benefits lost by laches---doctrine questioned 177
Estoppel as applied to lis pendens 178
Estoppel as applied to lis pendens further considered 180
Application of estoppel 181
Estoppel further considered 183
The true ground of decision 184
Farther application of the principle 184
Close and continuous prosecution 185
Mere lapse of time 185
The rule of the civil law 186
Analogy to period of limitation 187
Dismissal after purchase 187

CHAPTER VIII.
APPLICATION OF THE RULE LIS PENDENS.

Preliminary statement 190
The importance of this branch of the subject 190
Binding character of lis pendens 191
Lis pendens a common law doctrine 191
Not peculiar to a court of chancery 192
Not favored by presumptions 194
Lis pendens not strictly a lien 195
The courts may prescribe a rule lis pendens 196
Essentials where lis pendens applies to personal property 198
Doctrine of lis pendens in Supreme Court of the U.S. 200
The court will not presume service to sustain lis pendens 201
Where the decree is merely for money 202
Does not apply in actions in personam 202
Lis pendens of amended bill 204
Lis pendens statutes not binding on Federal courts 205
Money in hands of the law 206
Notice to protect liability does not create lis pendens 207
Lis pendens legislation and judicial construction  208
Knowledge of entry of fiat equivalent to lis pendens 208
Amendatory bill filed without leave not lis pendens 209
Lis pendens does not affect with fraud 209
How lis pendens affects limitations 210
Lis pendens applies to femme coverts 213
Proceedings in State court by leave of Federal court in pending suit 213
Filing of supplemental bill does not discontinue the prior lis pendens 213
Lis pendens as an excuse for trustee 214
Where a lis pendens injunction not necessary 214
Where defendant disabled pendente lite 215
Lis pendens applies to the proceeding by scire facias to foreclose mortgage 215
When the court will not aid 216
Interest on balance pending injunction suit 217
The doctrine of tacking 217
When bill against pendente lite holder demurrable 218
Lis pendens of cross petition 219
Defective lis pendens validated 219
Lis pendens of bill to partition 220
Lis pendens of an appeal 221
In cases of dismissal 221
When note not set off in pending case 222
Bill against administrator 222
When decision of the Appellate Court final 223
Costs in pendente lite purchase 224
Assumption clause in conveyance 224
Where recovery of judgment and return of facia waived 224
Other general applications of lis pendens 225
Scope of lis pendens in garnishment 226

CHAPTER IX.
DOCTRINE OF LIS PENDENS IN ITS APPLICATION TO PURCHASES

Preliminary statement 230
Formerly a purchase pendente lite champerty 231
Purchaser a legal title pendente lite 233
Conveyances pendente lite are now voidable merely 233
Sale on trust deed pendente lite 235
A purchaser pendente lite of trust property 236
Pendency of suit involving consideration of note, not notice 236
Decree dismissing bill where pendente lite purchaser 237
right of tenant taking lease pendente lite 238
Lease pendente lite from executor under power in a will 238
Collusive assignee pendente lite 239
When assignee in possession, not bound 240
When assignee in possession, bound 240
Condemnation proceedings not lis pendens 241
Ante item contract of purchase and payment before suit 241
Purchase upon execution pendente lite 242
Purchaser from trustee or agent bound to know the facts 243
Equitable rights of pendente lite purchaser protected 243
Conditional assignment pendente lite 244
Purchaser estopped by recitals 245
The lis pendens of a bill filed for the surrender of a mortgage 245
Bona fide purchasers---relation 245
Encumbrances pendente lite 246
Pendente lite judgments 247
Pendente lite purchasers at sheriff's sale 249
Purchaser under a decree a pendente lite purchaser 251
When proceedings are in real 251
When sale under a trust deed made pendente lite 252
Assignment of goods and chattels made pendente lite 253
CHAPTER X.
DOCTRINE OF LIS PENDENS IN ITS APPLICATION TO PURCHASERS, CONTINUED
When title of grantor divested pendente lite 254
Endorsee of a sued note 255
Where note assigned pending suit 255
Release of mortgage pendente lite---effect of 255
When court record not notice--doctrine questioned 256
How far a judgment evidence against pendente lite purchaser 257
Lis pendens of bill to set aside sale 257
Purchaser after dismissal and before revival 258
Agent purchasing a tax title 258
Conveyance after decree and before writ of error 258
Conveyance after a writ of error 260
Lis pendens in ejectment  260
Lis pendens of bill as to an unrecorded mortgage 261
Lis pendens of bill to correct title 261
Lis pendens of bill  to establish will 261
Pendente lite purchase by defendant from complainant 262
Assignment of decree between partners 262
A purchase pending foreclosure upon judgment not a prior lien, estopped 263
Lis pendens where judgment executed in chancery  263
Lis pendens of bill to subrogate 263
Mortgage pending second trial in ejectment 264
A purchaser upon a judgment prior to service 265
Notice presumed in pendente lite purchase 265
Statutes as to opening up judgments 266
When lis pendens in bill for alimony 267
Prior and junior lis pendens 268
Lis pendens no application without suit 269
Insufficient description for lis pendens 269

CHAPTER XI.
PARTIES TO ACTIONS INVOLVING THE RULE LIS PENDENS.

Preliminary statement 271
Pendente lite purchaser not a necessary party 272
Pendente lite purchaser no right to prosecute an appeal 273
Whether assignee in bankruptcy a necessary party 274
Where assignee a necessary party 275
Equitable bona fide purchasers ante litem protected 276
Purchase through prior equity not barred 277
When treated as a party 280
Statutory right to be a party 280
Lis pendens where one partner only is served 281
Where purchasers pendente lite might appear 281
Change of trustee pending suit 282
Owner must be served in condemnation suit 283
Lis pendens does not apply to tax sales 283
Notice of lis pendens not necessary in tax cases 284
Lis pendens of bill to redeem from tax purchaser 286
Lis pendens in partition where complainant in bill conveys 287
Where one joint plaintiff sells to another pending suit 287
Lis pendens in cases against executors and administrators 287
Purchase from the court subject to lis pendens until purchase paid 288
where conveyances before suit not pendente lite 288
Ante litem equitable owners 290
Ante litem mortgages as well as grantees unaffected 292
Where a plaintiff sues for undivided interest 293
No lis pendens after final decree and before bill of review 294
Intruders pendente lite not entitled to be made parties 296
Amendments not required where a purchase pendente lite 296
when complainant's interest compulsorily assigned 297
Assignee may waive right 298
Where litigation collusive intervention admitted 298
Where Appellate Court remands with instructions 299
CHAPTER XII.
THE APPLICATION OF LIS PENDENS TO ANTECEDENT LIENS.
General statement 302
Attorney's lien for compensation and costs 302
Particular or charging lien 303
This lien in the U.S. 305
Attorney general's lien 306
When attorney's lien attaches 307
Attorney's lien may be waived 308
Contract between attorney and client 309
Fees secured by special statute 309
Maintenance and champerty 310
Lis pendens of attorney's or solicitor's fees 311
Bill to enforce attorney's liens 313
Attorney's lien upon fund in court 314
Lis pendens of attachment proceedings 314
Actions in aid of suit 315
Lis pendens of bankruptcy proceedings 316
Actual notice equivalent to notice lis pendens 317
Lis pendens applied to mechanic's liens 319
Lis pendens applied to vendor's liens 320
Lis pendens of bill to enforce vendor's lien 321
Lis pendens in foreclosure cases 321
Lis pendens of creditor's bill 323
Pending bill for discovery lien on assets 324
When creditor's bill no lis pendens 325
Lis pendens of mortgage foreclosure 326
Creditor's bill against funds 326
Bill of discovery when judgment not a lien 326
When mortgage and notes are assigned pendente lite 327
When purchaser under mortgage pendente lite 327
When purchaser pending creditor's bill pendente lite 327
A purchaser on execution pending suit 329
Lis pendens of bill to set aside deed 329
Prior right to fund waived by negligence 329
Payment to credit of court pending suit 330
Pendency of partition cases does not withdraw lands from execution 330
When no lis pendens in favor of second mortgagee 330
Lis pendens in Tennessee where proceedings by attachment allowed in chancery 331
Estoppel and lis pendens 332
CHAPTER XIII.
DOCTRINE OF LIS PENDENS APPLIED UNDER REGISTRY LAWS.
What recording laws are 333
Character of recording laws 334
Construction of recording acts 335
Lis pendens does not affect recording 338
Recording laws modify application of lis pendens 339
How lis pendens affected by the registry laws 340
A creditor with notice not protected 341
Holder of unrecorded deed, in category of pendente lite purchase 342
Unrecorded deed attacked by bill 344
The same subject further considered 345
Not an exception to the rule lis pendens 347
CHAPTER XIV.
LIS PENDENS STATUTES.
English lis pendens statute 349
Lis pendens statute of New York 350
Wisconsin statute 352
California statute 354
Michigan statute 355
Minnesota statute 355
Indiana statute 357
Missouri statute 359
South Carolina statute 360
West Virginia statute 362
New Jersey statute 363
North Carolina statute 363
Dakota statute 366
Virginia statute 367
Application of general principles 368
Comparison of lis pendens statutes 369
CHAPTER XV.
CONSTRUCTION OF LIS PENDENS STATUTES BY THE COURTS.
Lis pendens commences from time of filing or recording notice 371
Lis pendens in ejectment 373
The effect of actual notice 373
Where no notice of lis pendens is filed 374
In condemnation proceedings 374
Proceedings to enforce tax liens 375
The object of filing notice of lis pendens 375
Notice before bill filed 376
Erroneous description in notice 377
Surplusage in the notice 377
Notice broader than attachment 378
Actions not embraced in statute 378
Loss or destruction of the notice 379
When suit and cross-suit treated as one 379
No power to strike notice from files 380
As to unrecorded mortgages 380
Proof of filing notice, etc. 381
Proof and correction of record of notice 381
Amendment of bill and notice 382
What interest in real estate necessary 382
Notice of no effect upon independent holders 383
Statute of North Carolina construed 384
Void description in notice of lis pendens 384
when lis pendens not docketed 385
Effect of notice of lis pendens 385

CHAPTER XVI.
LIS PENDENS AS A DEFENSE.

The plea in abatement prior action pending 387
Defense of prior action must be in limine litis 389
Where want of jurisdiction 390
Suits not for same cause 390
Defense of another action pending; what required 391
Suit pending in foreign State 391
State and Federal Courts 394
Decree in first suit as to second 395
Plea of pending writ of error 395
As a defense in criminal cases 396
Dismissed in Supreme Court 396
When Pendency of prior suit a bar 397
Two suits presumed vexations in some jurisdictions 397
When suit not deemed vexations in other jurisdictions 398
When former action not a  bar 399
Practice in New York where another lis pendens 400
In forcible entry and detainer and distress for rent 400
In garnishee process 400
Actions different 401
When both suits should be tried 401
There must be service of summons 402
Lis pendens no bar to cumulative remedies of mortgage 402
Issue as to debt on plea 403
When service after suit commenced not a prior suit 403
Where one suit is brought for the use of another 403
Plea in mandamus 404
Where one suit against the officer and the other against the deputy, etc., 405
Character of proof of lis pendens 405

CHAPTER XVII.
LIS PENDENS AS A DEFENSE, CONTINUED

Pleading and practice in this defense 406
Defense seldom raised by demurrer 407
Of pleas generally 408
What allegations the pleas must contain 412
Suit not necessarily between same parties 413
Where same person sues in different right 414
Bills filed for self and other creditors 415
Plea of pendency of suit in foreign tribunal 415
Where prior suit in Federal and junior in State court in different States 417
Where prior suit in State and junior in Federal Court in different States 417
Where prior suit in Federal and junior in State Court in same States 419
Where prior suit in State and junior in Federal Court in same States 421
Where parties reversed, defense not allowable 421
When State and Federal Court have concurrent jurisdiction in rem 421
Where one suit at law and the other in equity 422
Both suits must pend in courts of superior jurisdiction 424
Can not be pleaded to a cross-suit 425
When relief sought in one suit broader than in the other 425
Where prior action determined pleadable in bar 427
When plea in bar may be interposed 427
Practice in chancery  430
Examination into the truth of the plea 431
When plea interposed in suit at law 431
Forms of pleas and replications 433-436

APPENDIX

The Rules or Ordinances adopted by Lord Bacon, in 1618, being 101 in number for the government of proceedings and the better administration of justice in the Court of Chancery.

For a statement of the contents of these Rules or Ordinances, see pages 437 to 474.

 

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