
    Martha Miller v. Newman Kershaw, and John Connor.
    It is proper to make parties all incumbrancers, whose claims arose before the commencement of the suit; and in order that more complete and speedy justice might be done, a cause was remanded by the Court of Appeals, for the purpose of making party to the suit, a purchaser who had applied at the hearing to be made a party, and whose application was then refused, on the mistaken supposition, that he had purchased pendente lite.
    
    There is no such lis pendens as will imply notice to a purchaser until bill filed, and subpoena served.
    Acceptance of service of a subpoena, as of a prior date, does not make such a Us pendens, as will affect a purchaser before the day of the actual acceptance.
    A marriage settlement not duly recorded is void at law; and upon a bill, by parties claiming under it, against a purchaser, their equity rests solely on the fact, that he had actual notice of the settlement before his purchase ; and it is not necessary for his defence, that, he should plead want of notice : and although, if he suffer the bill to be taken pro confesso, it is within the discretion of the Chancellor to determine, whether any, and what proof of notice shall be required; yet the question should be decided apart from the rule, which requires, that the defence, of purchase for valuable consideration, without notice, should be pleaded.
    This was a bill for the execution of the trusts of a marriage settlement ; and was heard by Harper, Chancellor, at Charleston, May, 1830.
    The complainant was the daughter of John Holland, deceased, and intitled, under his will, to a distributive portion of his estate; an<^ °n ^ermarr‘aS3 with Janies Miller, her interest in her father’s estate was conveyed to the delondant, Newman Kershaw, as trustee, for the uses of the marriage settlement: but the settlement was not recorded, as required by the marriage settlement acts. Subsequently to the marriage, partition was made of the estate of the testator, and a leasehold interest in a house and lot was, amongst cither things, allotted to the complainant. This house and lot was afterwards assigned by the husband, Miller, to the defendant, Kershaw, for payment of his debts ; and Kershaw, who was executor of testator’s will, as well as trustee under the settlement, sold and conveyed the lot, for a valuable consideration, to the defendant, John Connor. About the time when the bill in this case was filed, Connor assigned his estate for the benefit of his creditors; and the assignees sold and conveyed the house and lot abovementioned to James Calder, who paid the value for it.
    
      Tmt pctLf Act|°f lwvUj pi M 5 y Act!L of lou«) p. 53,
    Calder was not made a party to the suit, but applied, at the hearing,-for-leave to shew cause against the complainant’s demand. This was refused, on the ground, that he was not a. party; and his Honor refused to direct that he should be made a party, as it was understood that he had purchased subsequent to the commencement of the suit.
    Connor did not enter an appearance, and made no defence to the suit; and the bill had been taken pro confesso against him. At the hearing no evidence was adduced, that Connor had notice of the settlement at the time of his purchase ; and it was insisted, on behalf of Calder, that without such evidence, the complainnnt was not intitled to a decree against Connor. His Honor-held, however, that Connor was bound to have pleaded, that he was a purchaser for valuable consideration, without notice, if that defence was to be relied on. Decree against both defendants.
    The defendant, Connor, appealed on behalf of Calder, and now moved, that as to him the decree might, be reversed, or vacated, and the cause remanded.
   Harper, J.,

delivered the opinion of the Court.

I am satisfied that the Chancellor was in error, in supposing that it was necessary for the defendant, Connor, to defend himself by pleading, that he was a bona fide purchaser for valuable consideration, without notice. The marriage settlement was void for want of recording, and Connor’s title was good at law. The complainant’s equity against him, rested solely on the fact, of his having had actual notice of the settlement, before his purchase ; and such notice would make out a case of fraud : but it was necessary for the complainant to prove notice, in order to make out her case. The bill, it is true, was taken pro confesso, and this may be regarded as an admission of the fact: and this was for the discretion of the Chancellor, under the Act of Assembly, and the .Rule of Court, which prescribes, that when a bill is taken pro confesso, the Chancellor may require such proof as shall be satisfactory to himself. Whether the admission is sufficient in this case, ought however to be decided apart from the supposed rule, requiring Connor to defend himself by pleading.

cowt^Acts ofi808,p.33.

But there is another ground on which the Court thinks the case ought to be remanded. During the hearing of the cause in the Court below, an application was made to the Court, suggesting that one James Calder had purchased the premises of Connor, and that he should be made a party. The suggestion, however, was, that he had purchased during the pendency of the suit; and it was decided, rightly I think, that it was unnecessary to make a purchaser pendente lite a party, and that he would be bound by the decree. The rule is, that it is proper to make parties all incumbrancers, 'whose claims arose before the commencement of the suit, but not those who purchased pendente lite. There seems now, however, reason to doubt, whether Calder did purchase pendente lite. According to the authorities, there is no Us pendens, which will imply notice to purchasers until bill filed, and subpoena served. Anonymous, 1 Vern. 318. Murray v. Ballou, 1 Johns. Ch. R. 566. In this case, service of a subpoena appears to have been accepted by Connor, on the day the bill was filed; but, from the affidavit of the complainant’s counsel, it appears, that this acceptance of service was written at a period considerably subsequent, and probably after Calder’s purchase. It is true the affidavit states, that this was in confidence of an agreement, on the part of Connor, to accept service as of the first period; but such an agreement can hardly bé considered actual service. It would, at all events, bind no one but Connor himself Besides, Connor in his affidavit states, that he does not recollect any notice of the suit until after Calder’s purchase.

We cannot now decide as to these facts, or the legal effect of them. But Calder has a right to have them tried. If it be true, that Calder’s purchase was not made pendente lite, he would not be bound by the decree, and might defend himself when process is prayed to put him out of possession. This might occasion the necessity of another suit, and the Court is of opinion, that more complete and speedy justice will be done by remanding the cause, and making him a party. We have seen, that if, in fact, he purchased before the institution of the suit, he ought regularly to have been made a party; and he seems t0 Ilave ^een misIed into the suggestion, that he did purchaser lite, by the acceptance of service indorsed on the subpoena, It is therefore ordered, that the cause be remanded; and the bill amen<Ied, So as t0 make the said James Calder a party, and heard upon its merits, so as to do full justice to the parties, in relation to the house and lot in question.

Petigru, for the motion.

Inglesby, contra.

Johnson, J., and O’Neall, J., concurred.

Came remanded.  