
    Jeremiah Hailey, Resp’t, v. Sophia Ano, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1893.)
    
    1. Former adjudication—Trespass.
    The pendency of a trespass suit does not prevent a purchase of the land upon which the tiespass was committed pQ7id6ut& lite, or give to a judgment for damages subsequently recovered thereon the effect of an adjudication binding tile title of such intermediate purchaser.
    2. Same.
    Where there is nothing in the pleadings to put a party on inquiry, the doctrine of lis pendens is not applicable.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment entered upon a verdict of the jury directed by the court for the plaintiff.
    
      J. P. Kellas, for app’lt;
    
      S. L. Wheeler, for resp’t.
    
      
       Reversing 42 St. Rep., 49.
    
   Andrews, Ch. J.

This is an action of trespass. The complaint alleged an unlawful entry, by the defendant, upon lands of the plaintiff, on lot twenty, Franklin county, in 1889, and the cutting and carrying away hay therefrom, and demanded damages in the sum of $200.

The answer contained a general denial of the complaint, and alleged that the defendant was the owner of the land upon which the alleged trespass was committed, and had a right to cut and carry away the grass. The action was originally commenced in justice’s court, and on plea of title being interposed, the action there was discontinued, and a new action for the same cause was brought in the supreme court

The contest on the trial turned on the true location of the line between lots nineteen and twenty. It appeared that plaintiff had been in possesion of lot twenty for more than twenty years, and that in 1882 he took a contract of purchase from the owner,'under which he held possession at the time of the alleged trespass. The defendant is the wife of Francis Ano, who, in 1880, went into possession of eighty acres, or lot nineteen, adjoining lot twenty, under, as may be inferred, a contract of purchase from one John Rowley, the owner, who- on the 10th day of June, 1885, conveyed the eighty acres to Francis. On the 20th of July, 1885, Francis Ano and his wife conveyed forty acres of the land to their daughter Lena, and forty acres to their son Joseph, but upon what consideration the record is silent. In 1889, Lena and Joseph conveyed the land to their mother Sophia Ano, the defendant.

The hay cut by the defendant in 1889 was cut from about six acres of land, either on lot twenty or on lot nineteen, the question from which lot it was taken depending upon the true location of the line between the respective lots. Evidence was given in support of the claim of each party as to the true location of the line.

The question on this appeal relates to the correctness of the ruling of the trial judge, that a certain judgment rendered in a former action brought by the present plaintiff, against Francis Ano, concluded the question of' title to the six acres in the present action. The trial judge directed a verdict for the plaintiff in this action, on the question of title, on the ground that the judgment in the former action was a conclusive adjudication as against the present defendant, Sophia Ano, upon the question of title.

For a proper understanding of the question presented some facts need to be stated. The former action was brought in the supreme court in 1884. The plaintiff, in his complaint, alleged that the defendant (Francis Ano) in July and August of that year wrongfully entered upon premises owned and occupied by the plaintiff on Lot 20,” county of Franklin, and took therefrom a quantity of hay, the property of the plaintiff, of the value of $200, and converted it to his own use, wherefore the plaintiff demands judgment for that sum, etc. The defendant (Francis Ano)_ answered by a general denial and set up that at the time complained of he was the owner and in possession of the lands from which the hay was taken, and was the owner of the hay. The answer is under date of October 10, 1884. No judgment was entered until November, 1888. It appears from the recitals in the judgment that at the November term of the court in that year, the cause being-on the calendar was moved for trial by the plaintiff, and that the attorneys for the parties thereupon agreed in open court that the plaintiff have judgment on the merits for,forty dollars damages and costs, and it was so 'adjudged. It will be observed that when the former action was commenced neither party thereto had the legal title to any land on lots 19 and 20. Both were in possession of the land occupied by them under contracts with the respective owners. After the commencement of the former action, Francis Ano, the defendant, obtained a deed of the 80 acres on lot 19, his deed being dated June 10, 1885. The plaintiff, so far as appears, has never obtained a deed of lot 20. It is also important to notice that the judgment in the former action was rendered three years after Francis Ano had conveyed the 80 acres to his children. It does not appear that when they took their deeds they had any knowledge of the pendency of the suit against Francis Ano. The deed to the present defendant was given after the rendition of the judgment.

We shall assume, in determining the question now presented, that the controversy in the former suit related to the same identical premises which are involved in the present controversy. It is settled in this state that under an issue of soil and freehold, in an action of trespass quare clausum fregit, the verdict and judgment on that issue determines the title as between the parties at the time of the alleged trespass, and that in a subsequent action of trespass between the same parties, where the same title is put in issue, the former judgment is conclusive. Burt v. Sternburgh, 4 Cow., 559. The same rule obtains when the second action is ejectment. Dunckle v. Wiles, 5 Den., 296. If the title existing in either party, when the former judgment was obtained, was determined before the second action, or a new title had been acquired by the party against whom the judgment was rendered, this may be shown in avoidance of the estoppel of the former judgment. Dawley v. Brown, 79 N. Y., 390. The rule that estoppels barred parties and privies would, we suppose, affect a grantee of a party to the judgment in the trespass suit, who acquired title from such party after the judgment.

In Dunckle v. Wiles, which was ejectment, and where the defendant relied upon a judgment in a former action of trespass between his grantor and the plaintiff as an adjudication upon the title, it was held that the defendant was entitled to the same benefit from the former judgment as his grantor would have been if he had been the defendant. If this was a correct principle, it would seem that the converse of the proposition is also true, viz., that a subsequent grantee would be bound by a former judgment in trespass on the question of title against his grantor.

But the circumstances of the present case present a very different question.

When Francis Ano conveyed the eighty acres to his children, the first action was pending, but there was no judgment, and consequently at that time no estoppel, since obviously the estoppel by verdict and judgment can only arise when these events have transpired. The point to be determined is whether, having purchased pendente lite, they were bound by the judgment subsequently rendered. We have been unable to find any authority in support of the proposition that the purchaser of land pending a suit in trespass between the grantor and another, in which the issue of title has been made, takes subject to the judgment which may be subsequently rendered in that action, or that he will be concluded thereby. The doctrine of the common law that in case of an alienation pending a real action the alienee takes subject to the judgment which may be rendered therein, which doctrine was adopted by courts of equity in analogous cases, though it often operated with great hardship, was founded upon a definite policy. It is clearly set forth in Gaskell v. Durdin, 2 Ball & Beatty, 167 : “ The rule of the court undoubtedly is that any interest acquired in the subject matter of a suit pending the suit, is so far considered a nullity that it cannot avail against the plaintiff’s title; and if this rule were not attended to, there would be no end of any suit; the justice of the court would be evaded and great hardship and inconvenience to the suitor necessarily intervene.” And in Hopkins v. McLaren, 4 Cow., 678, Senator Colden stated the reason of the rule to be that “ if a transfer of interest pending a suit were to be allowed to affect the proceedings, there would be no end of litigation ; for as soon as a new party was brought in, he might transfer to another and render it necessary to bring that other before the court, so that a suit might be interminable.” See, also, Murray v. Lylbur, 2 Johns. Ch., 444; Parks v. Jackson, 11 Wend., 444. The frequent hardship resulting from the rule of lis pendens, without any provision requiring notice to be filed, led to statutory enactments on the subject, requiring notice of Us pendens to be filed in certain actions and making the commencement of an action constructive notice only from the time of such filing. Sheridan v. Andrews, 49 N. Y., 478, and statutes cited.

Section 1670 of the Code of Civil Procedure, which is in substance a re-enactment of former statutes, authorizes a notice of lis pendens to be filed in an action “ brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property. ” An action for damages for trespass on real property is no.t within this section. The object of the action is the recovery of damages, and the title of the premises upon which the trespass was committed may or may not be affected or involved in the litigation. The action is not brought to procure a judgment affecting the title or possession of the land, although the judgment may, in certain cases, be evidence of title.

The contention is that, notwithstanding the action of trespass is not one wherein notice of lis pendens can be filed, yet a purchaser pendente lite must take notice at his peril of a pending action of trespass to which his grantor is a party, and that the doctrine of lis pendens, as formerly understood before there was any statutory regulation, applies. But the case is not within the principle upon which that doctrine was based. The purchase of the land from a defendant against whom an action for trespass is pending does not affect the plaintiff's claim or right of action. He can recover his damages as if no sale of the land had been made, and his remedy can be pursued unimpaired by the transfer of the land. The transfer is productive of none of the consequences which the doctrine of lis pendens was intended to prevent. That doctrine prevented the acquisition pendente lite of an interest in the “ subject-matter ” of the suit to the prejudice of the plaintiff, because otherwise (in words already quoted), “ there would be no end of any suit; the justice of the court would be evaded and great hardship and inconvenience to the suitor would be necessarily introduced.”

The grantees of Francis Ano acquired by the deed no interest in the “ subject matter ” of the pending litigation. The interest which the plaintiff can claim is that by the transfer of the land pendente lite the question of title may be open to contestation unless the doctrine of lis pendens applies. We are not bound to any authority on the question now considered, and we think it would be unwise to apply the doctrine of Us pendens in such a case as this. It would embarrass the transfer and alienation of land, without any compensating benefit, putting upon a purchaser the risk of ascertaining that no suit was pending for trespass upon lands-purchased.

An inspection of the pleadings in the former action, which resulted in favor of the plaintiff against Francis Ano, would have given the purchasers of lot 19 no notice that the controversy related to the line between lots 19 and 20. The complaint describes the entry as upon lot 20. The purchase was of eighty acres of lot 19, and the pleadings did not disclose that the controversy concerned any boundary between the lots. It was said in Lewis v. Mew, 1 Strobh. Eq. (So. Car.), 180, that for a Us pendens to affect a purchaser, there must be something in the pleadings at the date of the purchase to point his attention to the property purchased as the identical property or parcel of the identical property in litigation.

See, also, Herman on Estoppel, § 189.

It is certainly reasonable in a case like this that where there is nothing in the pleadings to put a party on inquiry, the doctrine of lis pendens should not be applicable. The theory that parties are presumed to be cognizant of what is passing in the sovereign courts of justice, assumes that by consulting the records of the courts the fact may be ascertained. But we think the pendency of a trespass suit does not prevent a purchase of the land upon which the trespass was committed pendente lite., or give to a judgment for damages subsequently recovered thereon the effect of an adjudication binding the title of such intermediate purchaser..

This leads to a reversal of the judgment and a new trial.

Judgment reversed and new trial granted, costs to abide event,

All concur.  