
    Lessee of James Taylor v. Abraham Boyd.
    . A decree in chancery, for the conveyance of land, if a deed be not executed within the time limited, operates as a conveyance, subject, as between the parties, to a revesting of the title, by a reversal of that decree.
    .A party having title to land under a decree in chancery, conveys in good faith, before citation on error is served, a reversal of the decree does not divest the purchaser’s title.
    This case was adjourned here from the Supreme Court in Ross -county, and came before the court upon a case agreed.
    Taylor, the lessor of the plaintiff, being seized in fee of the premises in dispute, John Boyd, the father of the defendant, prose-cuted a bill in chancery against him to obtain a conveyance of them, upon which a decree was made, that Taylor convey to Boyd, within a given day, or that the decree ^operate as a conveyance. Taylor made no conveyance, and after the time limited for making it by the decree had expired, John Boyd conveyed the premises to the defendant, having in the meantime taken possession under the decree. Before the conveyance from John Boyd to A. Boyd was executed, Taylor had sued a writ of error, to reverse the decree obtained by Boyd against him. It was issued and the - bond given, but it was not served until after the conveyance was executed, and Abraham Boyd had no actual notice that such a writ was sued out. Upon hearing of the writ of error, the decree directing a conveyance was reversed. The question presented foi decision was, whether, under the circumstances, the title of Abraham Boyd was affected by the reversal of the decree upon which. it was founded.
    Sill, for defendant:
    On the facts agreed in this case, the defendant contends that by the decree the fee passed to the defendant’s grantor, and has never been divested; and in this we contend for nothing more than the -■ expressed intention of the statute, that “ where a decree shall be •made, etc., and the party against whom the decree shall pass, shall-not comply therewith by the time appointed, then such decree shall be taken in all courts of law and equity to have the same operation and effect, and be as available as if the conveyance had-been executed conformable to such decree.” Vol. 22, p. 81. It-would seem from a first impression, that a doubt could not be raised on the language of the act, upon the point whether the title-taken under such decree, after the expiration of the limited time, would, in all respects, stand on the same footing as if a deed had been actually executed under such decree. And yet such doubts have been started, and may possibly be raised in the present case. The decision of the Supreme Court of the United States must, however, remove all doubts. Steel’s lessee v. Spencer, Peters. It is there decided “ that the title under such decree, on the expiration of the time, was in all respects (by our statute) the same as though a deed had been executed. Placing it on the footing, therefore, that a deed had been actually made by Taylor to Boyd, in conformity to the decree, vesting in Boyd *the fee, and the only resulting question is, does a reversal of that decree, vacate the deed, and revest the title in Taylor again ?
    In discussing this point, it will be remembered that when the re- • versal took place there was no order made by the court that the party should be restored, in all things, to that which he had lost.by the decree; or, if such an order had been made, whether it could have affected the present question need not now be inquired. A simple reversal was all that was had in the case, and the ques* tion recurs, can such a reversal alone divest the title from Boyd and vest it again in Taylor. The opposite counsel must admit, that before the statute a mere decree of a court of chancery would not pass a title; that a decree could only be enforced by imprisonment or amercement for contempt; but that if the party remained obstinate the decree would continue wholly inoperative as •a conveyance. Such a conveyance, therefore, with us, owes all its ■efficacy to the statute.- We contend, then, if without an express authority of the statute the decree could not have had the effect ■of passing title, so neither can’a refusal of that decree without an ■express authority of the same statute repass or divest the title. A conveyance created by a statute can not be executed further than the express words of the statute. Most assuredly, it requires a power as high and efficacious to reconvey to Taylor as to convey to Boyd. The statute has, in one case, said that a certain act of a court, under certain limitations, shall pass the title, and has not said that any other act, such as a decree had on a bill of review, ■or a reversal of the first decree by court of error, shall be a reconveyance. Taylor is not without a remedy, if he ever had the equity (it is presumed), after a reversal, that the legal estate which Boyd took by the decree would be held by Boyd, as a trustee, for whoever was seized of the equity; and if Taylor, on a bill filed, is found to have that equity, then a reconveyance would be decreed on the proper evidence adduced. At all events, if it had been intended by the act that a reversal of the decree alone should operate to revets, it would have so been expressed. It is hardly possible that such an important point would, under all the consequences that might result, be left to mere implication. Decrees, as well as judgments, are sometimes reversed in part and confirmed in part; it would produce ^endless confusion were a reversal, at any time within five years, to be considered as a reconveyance to the party from whom it had passed under the decree, affecting, as it would, all subsequent bona fide purchasers who had purchased under the faith of the decree and perhaps made valuable improvements.
    j Again: Why may not the condition of the party giving the ■title under the decree be likened to that of a purchaser under a judgment? The title, under the deqree, is a statutory conveyance, ¡and is, in effect, precisely the same as if the chancellor had decreed that Taylor should pay so much money or convey the land; and, if he did neither, that the land should be sold, and on such, sale Boyd had become the purchaser. Now, why should the reversal of the decree affect the title any more than the reversal of the judgment—that is, in a court of law; for I do not question, but in a court of equity, that the party or purchaser receiving title in either case would stand affected by another’s right to the equity, and on a ease properly shown might be decreed to convey the legal estate.
    Again: Still proceeding on the ground that Taylor had actually made a deed, and even supposing that the court reversing the decree was empowered and had exercised the power, and had said that the supposed deed, made under the decree, should be canceled, that would not even have the effect to revest the title in Taylor. The mere destruction of a deed does not divest title; the deeds in use in this country are those of bargain and sale, and it has often been decided that the mere canceling or destroying of such a deed would not be a reconveyance of the title to the bargainor. 2 H. Black. 263. See also 3 Term, 156.
    Grimke, for plaintiff:
    No principle, I believe, is better established than that the pend-ency of a suit is notice to all the world, and that conveyances obtained during that period are absolutely void and incapable of transferring any interest. “I hold it,” says Lord Camden, “as a general rule, that an alienation pending a suit is void.” Ambler, 676. He who purchases during the pendency of a suit is bound, says Sir William Grant, by *the decree that may be made against the person from whom he derives his title.
    The litigant parties are exempted from the necessity of taking .any notice of a title so acquired. As to them, it is as if no such title existed. The rule may operate with hardship, but general convenience requires it. Bishop of Winchester v. Gaine, 11 Ves. 194. “ In the case of Martin v. Stites (says Ch. Kent, cited in 11 Ves. 200), the bill was filed in 1640, and was abated by death in 1648, and a bill of revivor was filed in 1662, and the purchase was made in 1651, yet as the purchase was, by relation of the bill of revivor, made pendente lite, the purchaser was held bound.” Johns. Ch. Cas. 566. In such case, the party whose rights are attempted to be prejudiced by a purchase, pendente lite, may either commence an action of ejectment on his original title, or if his interest be complicated with trust, or accounts, he generally files a bill. “ Where a conveyance was declared absolutely null and void for fraud, a reconveyance was thought by Lord Rosslyn altogether unnecessary. Bates v. Graves, 2 Ves. Jr. 294. Yet it was there said to be the practice to direct a reconveyance.
    Whether a writ of error be a suit, or a proceeding analogous to a suit, would not seem to be very material, as, in either case, it would be governed by the same principles, which are applicable to the lis pendens. In Bacon’s Abridgment, title Error, L, it is said that where the effect of the judgment on the writ of error is the recovery of the title to land, a release of all actions real is a good bar to a suit for the same. If on the writ of error, the party only endeavors to defend himself from the recovery of land, then it is-not a suit, or action real.
    From what period, then, does the writ of error date its inception ? From the allowance, or from the service of the citation ?' It is admitted that suits in chancery and at law are deemed to have commenced from the service, or, if you choose, from the return of the writ. But this is because the writ is literally the commencement of the suit. It is the first step taken by the party who is actor, and, for the same reason, the allowance of the writ is the beginning of the writ of error suit. It has been frequently contended, in Great Britain, that this proceeding was not notice until-the service of the citation, but it has been as often decided that *it is a supersedeas, and arrests all proceedings under the-original judgment, from the time of the allowance. The cases on this subject are numerous and decisive. It is only necessary here to refer to Bos. & Pul. 370; 1 D. & Ea. 279; 2 East, 439; 1 East, 662 ; 1 Mod. 28. It is true there is a1 difference in the effect of the writ in these cases from what it would have in this. But it is in truth a difference only in form. This case is substantially the-same with them. In the English cases an alienation of property, sold pursuant to a judgment at law, is protected, if made any time-after the allowance and before the service of the citation. The alienation there is attempted to be made by the sheriff, the agent of the party. Here it is made directly by the party himself. The reason, perhaps, is even stronger why it should be protected in the latter case. In Overstreet v. Marshall, 3 Call, 164, it is decided that a judge’s order for a writ of supersedeas is the true commencement of the proceeding.
    
      The defendant’s counsel has opened the other, and perhaps more important part of the case, by inquiring whether the mere reversal of the original decree can have the effect of vesting the property in the party who obtains the reversal. I prefer considering, first, whether the reversal has not the effect of divesting the land out of the defendant to the writ of error. It is true the first may be a necessary consequence of the last. But this view embarrasses the subject less. The mind is not called upon to take such a leap as is supposed to stare us in the face. ¥e are conducted more gradually, and, therefore, more naturally, to the-legitimate conclusion on the subject. The decree in chancery, in Ohio, is different from what it is anywhere else. It contains two alternatives: that the party convey, or that the decree operate as such conveyance; the first is evidently a proceeding in personam, the second is strictly one in rem. The first case can only be enforced by process against the person, the second executes itself, and does not require the interference of the person or of the law, in order to effect a transfer of the legal title. And it is not unimportant to observe that it is in the option of the defendant to such decree, in what way it shall be permitted to operate.
    Having determined that option, neither he, nor those who claim *under him, can complain of any supposed inconvenience which may be the consequence. It is not necessary, in order that the proceedings be in rem, that the possession should be changed. This is never the case, even in admiralty or exchequer suits. The great question always is, whether the title, the right to the property, is not changed, and whether the judgment or decree does not, propria vigore, produce this effect ? The change of possession is accomplished afterward, by a distinct process, by the officer of the court in the admiralty or exchequer, and in real actions, by a new action founded on the judgment of reversal. So that if the original decree had the effect to transfer the title, if it operated directly upon the property, and it was not necessary to resort to sequestration or attachment — in other words, to institute any proceedings against the person — it comes within the true definition of a proceeding in rem, and the reversal of such decree must be governed by the same rules as have been established on the reversal of those proceedings. It must be admitted that the single effect of the decree was, after the defendant made this option, to transfer the title. If it did not do this much, it was totally inoperative and without meaning, and no better than waste paper. There is no escaping, therefore, from the conclusion that it was an effectual and legal conveyance. But the decree of reversal has annulled that original decree, that is to say, it has destroyed that conveyance. The question still recurs, therefore, does this divest the property out of the defendant in the writ of error. And I shall consider the strongest case which can be imagined against me. The cancellation of a deed, it is well established, does not deprive the grantee in it of the title, and it can not, therefore, reinvest the grantor with that title. There are a variety of reasons for this rule of law, all of which show' that this case is entirely distinguishable from the case of cancellation. In the first place, an instrument of writing, under seal, is, in general, necessary to transfer an estate of freehold for life, or in fee. Such estate, therefore, can, in general, be divested only in the same way, that is, by deed in writing. But wherever the title to property is transferred by the operation of law, it is a case which forms an exception, and by operation of law it may be divested. This is the case here; *the'title was not conveyed by deed, but by the operation of the decree. By operation of law, therefore, it may be divested. In the second place, where a deed is canceled, nothing more is done than the destruction of a more •muniment or evidence of title. But the decree of reversal, besides doing this, also fixes and decides, conclusively, the question of title. The cancellation is nothing more than the burning of apiece of paper; the decree destroys the paper (the original decree), by annulling the title. Cancellation is all which is done in the first .instance. In the secend, it is a mere consequence of the destruction of the title. Where you touch the paper only, you must not ■be surprised if the title is unaffected. But where you act upon ■the title exclusively, it would be very extraordinary if that were, .notwithstanding, unaffected.
    There are also groat reasons of public policy why the cancellation of a deed is not permitted to divest an estate. It is because ■the act is secret; but the writ of error and the decree of reversal :are more public than even a reconveyance would be. I think, therefore, we may safely come to the conclusion that the reversal of the original decree has annulled the title of the defendant in the writ of error (and, of course, of all those having notice of that proceeding) ; in other words, for it is one and the same thing, that it .has divested the title out of them. And it is a necessary consequence that it must be revested in the plaintiff in error, or else remain in abeyance, that is, in nubibus, which the law declares it shall not do. And this effect is nothing more than is familiar in a great many other cases. Thus, “if the king grants over the land of a person outlawed for treason or felony, and afterward the outlawry is reversed, the party may enter on the patentee, and needs neither to sue a petition to the king, nor a scire facias against the patentee.” 2 Bac. 505, who cites 2 Haw. P. C., chap. 50, sec. 19, and Andrews, 188. So in an assize for the recovery of land, if the tenant loses by verdict, he shall be restored to the land, if it be reversed on writ of error. 2 Bac. 505. So in another passage, Bacon says, on a writ of error to reverse a fine, the judgment is a vacat of the fine, and a reconveyance is never adjudged, except where a bill in chancery is brought to avoid the fine for fraud. Thus we find that in *every case where an estate is divested by mere judgment, it is revested by the reversal of the same, and it is only where something more than the operation of law is necessary to divest title, that something more is required to revest it. In Thomson v. Mason, 4 Bibb, 186, the only American case which my research has enabled me to find, it is decided that the reversal of a decree renders invalid a deed made in pursuance thereof. As the original decree did not execute itself, like decrees in Ohio, the suit in chancery of Thomson v. Mason was necessary to acquire back the title. The case, however, like too many of the Kentucky cases, is confusedly reported, and is, besides, mixed up with so many other matters, which were involved in the controversy, as to prevent it being considered a very luminous and satisfactory authority on the subject.
    It is inquired, whether the reversal of a decree (similar to that in Boyd and Taylor) for land lying in a foreign country, would divest the estate out of the defendant in error. This is supposed to be a serious difficulty in the way of the establishment of the general principle contended for. But in truth it is not; for I do not contend for the maintenance of the principle as a universal one, neither do my premises authorize me to do so. I have, throughout the argument, contended that the proceeding is strictly in rem. And for this very reason, the reversal of such a decree, for land in France or England, would not divest the property; for this would be to give the decree an extraterritorial operation. Now, it is of the very essence of a proceeding in rem, that the subject matter, the corpus, as the civilians call it, should be within the jurisdiction of the court.at the time that the decree is pronounced. I know that during the ñames of the late European war, that principle has been relaxed in prize cases, even by that distinguished judge, Sir William Scott. But this is acknowledged to be an interpolation into the maritime law. The cases in Cranch and Wheaton are numerous on this point. It is hardly necessary to search for them. Sir William Scott appears to have been brought most reluctantly into a relaxation of a rule which he had • himself repeatedly acknowledged to be well established, and to be founded in the soundest wisdom. It is only necessary to turn over the volumes of Robinson’s Reports to be convinced of both these facts.
    *Itis admitted that “the bill of review in England contains not only a prayer for reversal, but also a prayer to be restored to what the party has lost. So it is part of the judgment of reversal on error, that the party be restored, etc. But these cases rather confirm the view which I have taken. They certainly, at any rate, do not shake my principles. Those casos are founded on this principio: that something more than the original judgment or decree was necessary to.vest the'title to the possession. The restoration of the lost property we acknowledge has not been effected, and for this reason we bring an action of ejectment. With regard to the bill of review, the original decree in England is entirely in personam ; for even if the process of the court is not applied to coerce obedience to it, yet the active agency of the party against whom it is rendered, is necessary to its consummation—he either makes or is compelled to make a deed. The state of title of the parties is thus changed by something coming after the decree and independent of it. Very different is this case, where title is transferred by the silent operation of the decree. So, also, the reversal of an ordinary judgment at law presents a very different case. The recovery is ■of money for instance. This alone, however, can not affect title, either to real or personal property. The execution comes afterward, and by its authority, the land or goods of the debtor is sold. This is a process distinct from, and entirely independent of the judgment, except that it is in pursuance of it. The reversal of such a judgment, therefore, can not, standing alone, affect the property sold under the execution, and it is therefore very properly accompanied by an order that the party be restored to the possession, etc. But restoration to the title and restoration to the possession are very different things. If we had contended that we were restored to the possession, such cases would have been very pertinent.- But in such a case we could hardly have brought an ejectment, which admits that we are not restored.
    It has been supposed that because the decree is to have the same operation as a deed, that therefore it is to be deemed in all respects like a deed. But it is not a deed, nor is it anything like one. There are no premises, no habendum,, no operative words of conveyance. And why ? Because the title is transferred by the sure and irresistible operation *of law, and therefore does not require the intervention of a formal conveyance. On the whole, I think I am authorized in concluding that the writ of error was a lis pendens, that it was a supersedeas, and arrested all proceedings under the original decree from the moment of the allowance; that the reversal divested the property out of the defendant in it, and that it necessarily and eo instanti reinvested it in the then and present plaintiffs.
    [Note. — The case in 1 Dows. P. is even stronger than Murray v. Ballow, and the cases there cited, inasmuch as it is there decided that “ a settlement upon the faith of a final decree in the court below, is still a transaction pendente lite and subject to all the legal and equitable consequences of an appeal.” The purchaser under the original decree, says Lord Eldon, was bound to take notico of any defect in that original decree, even before the appeal was commenced, The appeal was only a continuation of the Us pendens of the former suit, and although it may not have been prosecuted for many years altor, yet if it was within the time limited for an appeal to the House of Lords, the purchaser must abide by tho consequences of a reversal. This case is entitled to great weight, inasmuch as it is the decision of the chancellors of both countries.]
    Leonard, for defendant, in reply:
    The true question now to be determined is, “in whom is the legal estate vested?” By the proceedings had in the court of common pleas, the estate became vested in James Boyd. (Suppose the estato had remained in him, and no conveyance had been executed to Abraham Boyd.) A writ of error is afterward brought, and those proceedings reversed, would that, without further having been done, have restored the legal estate to Taylor?
    In England, the assurance made in performance of a decree is a common law assurance. It contains no reference to the decree. In tracing a title where such assurance is one of the links of the chain, the deed alone is exhibited, and the court before whom the title is litigated, knows not, and if it did, would not regard that it was executed in performance of a decree in chancery. In the case of Penn v. *Lord Baltimore, Ves. Jr., the English chancery settled the boundaries of two provinces in America, and decreed conveyances to be made. They here acted on territory without their jurisdiction. If the chancellor had attempted to act in rem, the attempt would have been unavailing. But he acts in personam. So. if the person is found within our limits, he may be compelled to convey land in England or France, or New York. If the property was conveyed by deed duly executed, and the decree afterward reversed, would the reversal restore the estate in England? Our courts would then not act in personam, but assume a. direct jurisdiction over the territory of England. Could the proceedings in our chancery, the decrees, the writs of error, and the reversals, be advanced in evidence in the trial of an action of ejectment in the English courts ? When our legislature gave the same effect to a decree as to a conveyance, their action was limited to the extent of our own territory, and their object was to facilitate the business of the courts, but not to give the decree a larger or different effect from a common law conveyance. The design was, to prevent the necessity of imprisonment for the enforcing the decrees of the court. It could not have been their intention to give an advantage to the person not complying with the decree of the court over him who did comply, and execute a conveyance accordingly. The decree is “ to have the same operation and effect, and be as available as a conveyance.” The intention must have been, that the party purchasing should look to the decree only; consider it in the light of a conveyance, and was not bound to investigate the correctness of the decision in which it was formed, or whether there were any errors in the proceedings. In fact, the decree is a substitute for a deed.
    If a judgment is rendered, and a term or real estate sold by virtue of an execution issued thereon, the subsequent reversal of the judgment will not vacate or affect tire sale of the term or real estate. 2 Bac. Abr. 505. If a man recovers an advowsen, and presents to a church, and judgment after reversed, presentment remains valid. Id.
    
      Mr. Grimke’s argument demands a short notice. The cases in Yesey & Ambler, I have not seen, but the language quoted, will be found in 1 Johns. C. C. 580. And it is evident *that Lord Camden and Sir ¥m. G-rant must not be understood too literally. The cases themselves are chancery cases, and no doubt the rights of the equitable owners were there enforced against the pendente lite purchasers, by decrees directing them to convey. The whole amount of the decisions must have been, that the title and interest of those who purchase during the pendency of a suit, shall be bound by the decree. That the legal title ever can be divested from the purchaser by such a decree, and vested in the complainant, was never held, and I may safely venture roundly to assert, that it ever could be, was never imagined by any chancellor of England. What! a decree that A. convey to B., and a deed executed accordingly, divest the legal estate conveyed to C., before the decree rendered 1 The decree could itself have no such effect, and the deed by the respondent could only operate upon the estate vested in himself, and not upon that vested in another.
    If the rule in equity is as stated, what is the use of injunctions against the defendant’s conveying the estate in controversy, pending the litigation.
    Perhaps the counsel, by his reference to the cases in 11 Vesey and Dow’s P., intends to intimate that the writ of error is a continuation of' the proceedings in the common pleas, as a bill of review and an appeal are but parts and continuations of the original cause; and that, therefore, this suit must be considered as pending from the time of its commencement in the court below. The distinction between bills of review, appeals, and writs of error is manifest. A writ of error is a new and distinct action in another tribunal to revise and reverse the final judgment rendered in the inferior. It can not be instituted, except when the cause in the lower court is completely settled and disposed of. By a bill of revivor, a suit abated is revived and restored to its original situation. An appeal transfers the cause to another tribunal. A purchaser pendente lite is bound by the decree finally rendered in the cause, whether rendered on appeal or on revivor. But the doctrine of lis pendens has no application to the original bill filed by the party in the common pleas. It never can have application, except in those cases where the purchase is made from the defendant to the suit in chancery; then the title in the hands *of the purchaser is bound by the decrae. In the présent instance, the deed to defendant was made by the complainant in equity.
    The present question then is, whether the writ of error in chancery is to be considered pending, so as to affect purchasers before the service of the citation. The cases cited show at what time a writ of error is a supersedeas to proceedings on a judgment at law, but have no bearing on the present matter. The doctrine of notice affecting purchasers, whether express or implied, is an equitable doctrine. If a purchaser has expiress notice of an equitable title, he purchases at his peril. If, during the pendency of proceedings in chancery, he takes subject to the decree that may be finally rendered in the cause by the court of the last resort. And the suit is considered as pending only from the service of the subpena. If principles are to be extended to analogous cases, and limited to these precisely similar in all circumstances, courts of chancery will hold that notice of the pendency of writs of error commences with the service of the citation. In writs of error at law, a supersedeas issues. This suspends at once the action of the court to whom it is addressed on the judgment, and withdraws it to a higher tribunal. What analogyis there between the doctrine on writs of error and supersedeas and that of notice pendente lite in chancery ? And why should the time from which the implied notice of the pendency of a suit is to commence, be fixed at the same point the writ of error operates as a supersedeas at law? Suppose, in the present case, the writ of error had been a supersedeas, as to the costs, from the time it is'sued, does it follow that it is from that time notice of its pendency to all the world? On the main question in the cause, the complainant’s counsel appears to have felt himself constrained to surrender the only tenable ground on which his case can be sustained. He admits that if a deed had been executed. the reversal of the decree would not affect the title of the defendant. He insists upon the distinction that the decree operates in rem. How does it operate in rern f By virtue of the statute which says, it shall have the same operation and effect, and bo as available as if a conveyance had been executed ? If the deed is executed and the decree reversed, the title shall not be affected; but if the deed is not ^executed, then the reversal of the decree will affect the title. Hoes the decree, in this instance, have the same operation and effect, and is it as available as a conveyance ? The decree may be considered in two points of view. In the one, we may consider its operation before the passage of the law; in the other, the additional efficacy given to the decree by the statute. In the first point of view, the decree can have no operation in rem. Tn the second point of view, it operates directly in rem; it operates precisely as a common law conveyance. This may be called the statutory operation of the decree.
    How can the reversal of the decree touch this, its statutory operation; this, its operation in rem; this, its operation, which is to have precisely the same effect and be as available as a common law conveyance, more than it can touch the operation of a deed made in pursuance of a decree? How can such reversal divest the title vested by decree, in the hands of a subsequent purchaser, more than if it had been vested by deed duly executed? If it does, no equivocation can escape the conclusion, that the decree is not equally operative and available with a deed; because, the title under the decree is obnoxious to a mode of destruction, from which the title under tho deed is perfectly guarded. The words of the statute are most explicit, and clearly place the title, whether vested by deed or decree, on the same footing. Its design is manifestly to supersede the expense, delay, and trouble of enforcing a deed, by the process of attachment and sequestration, and the construction contended for would render it a snare rather than a benefit. That it was the design of the statute to render the decree as effectual as a deed is conceded, but it is not conceded that it is a deed, or libe a deed.. It wants the premises, tenendum habendum — and I suppose a great waxen seal. Now I would inquire how the decree can be as operative, effectual, and available as a deed duly executed agreeably to the decree, when it is admitted that the estate vested in the complainant by the deed would remain in him, notwithstanding the reversal, and it is insisted that a reversal would revest the estate notwithstanding the decree. This inquiry can not be evaded by saying that the decree is vacated by the reversal, while the deed would be unaffected thereby, because the palpable design of the statuto was to make the title by the decree equally effectual with the title by deed.
   +By the Court :

Upon the state of facts, in this case, James Boyd, by virtue of the decree in chancery, in his favor, and under the provisions of the act regulating proceedings in chancery, obtained an absolute legal title to the lands in dispute. Whilst invested with this title, he entered into the possession. The title conferred by the decree was exactly that which Taylor, the defendant in chancery, had, when the decree was rendered; and this title was as perfect, in James Boyd, under the decree, as it was in Taylo.r before the decree was pronounced. Boyd’s power to alien was as full and ample as any other owner’s could be, subject, however, to bo divested of the estate by the same power that invested it in him.

The foundation of this title was the decree in chancery that conferred it. So long as that decree remained in force, the title could not be impeached by Taylor, or any person claiming under him, by conveyance made, pending the suit in chancery, or alter the decree. But what is the effect of the reversal of that decree.

It is urged that the decree, having the same effect as a deed—being, in fact, an operative conveyance—its effect must be the same, as if a deed had actually been made under the decree. In which case, it is maintained that a reversal of the decree would not divest the title. Without deciding what would be the effect of a deed, in such a case, as between the parties to the suit themselves, we are fully prepared to say that as between the parties, a reversal of the decree, which confers the title, actually divests it, and reinvests it in the person where it rested before the decree was made.

When the decree of reversal is pronounced, the parties concerned are all before the court. The title vested by the decree is declared no longer to exist, and it would seem perfectly competent for the court at once to do justice between them. Why should the successful party he driven to a now bill to revest himself with the title? Sui’ely the great objects of justice are full as well attained by considering the reversal a revestment of title, and, in that respect, placing the parties as they stood before the original decree was pronounced. It *is the most expeditious, the cheapest, and therefore, as we think, the most proper remedy. If. the decree be reversed, and the bill dismissed, upon the opposite doctrine, the complainant thus turned out of court would nevertheless have obtained the whole object of his bill. And the defendant, after a final adjudication, in his favor, would have to prosecute a new bill to obtain relief against the effects of a decree in a suit decided in his favor. This would be a strange anomaly in judicial proceedings, and one which ought not to be introduced, without some strong necessity.

Again, if, on the reversal, the court retain the cause, and on final hearing, a second time find the complainant entitled to a decree for the land, what form of decree is to be made? It can not be that the defendant convey, for the doctrine insisted upon assumes that he has no title in him. It must be a decree confirming a title in the defendant, which he obtained under the reversed decree. Upon what principle of reason, or enactment of legislation, would this kind of decree stand ?

But the most difficult and important point in this case, is as to the effect the reversal is to have upon the rights of third persons, legitimately and innocently acquired. After the time limited in the decree itself had transpired, and the decree became an absolute title, the party thus invested with title and in possession of the land, sold and conveyed it to a third person, who stands before the court as an innocent purchaser for a valuable consideration without notice. Can his rights be divested by a reversal of the decree upon which his title was originally founded? ¥e are of opinion that they can not be so divested.

When James Boyd conveyed to Abraham Boyd, he had a complete title, which it was competent for him to transmit by conveyance in the usual mode. In making this conveyance he divested himself of title, and invested it in Abraham Boyd, the defendant, who reposed himself upon the solemn and final decree of a court of competent jurisdiction, then in full force and of unquestionable validity. By this act of conveyance, made in good faith, James Boyd put an end to his power over the land. He could not resume his interest in it, without the consent of his grantee, and no decree subsequently made, in the suit, or in any new suit growing out of it against James Boyd, could affect an interest which he had not, in the subject. This consequence, upon the premises *here asssumed, seems to be conceded by the counsel for the plaintiff. But he argues that the conveyance can not be treated as one made in good faith, because, as he insists, it was made pendente lite. If this position be correct, the result contended for necessarily follows; for a conveyance of a subject in litigation, made pending the litigation, is universally treated as made in bad faith, and as universally held not to change the rights of any of the parties.

It is argued that the writ of error was sued out, and bond given upon it, before the making of the conveyance, and that consequently the suit was pending. On the other hand, it is acknowledged that no citation had been served on the defendant in error, and there is no pretense that either the grantor or grantee knew that the writ of error was pending. We are of opinion that, until the service of the citation, a writ of error is not to be considered as pending so as to affect strangers as a lis pendens. This, we think, is not only in accordance with good sense and fair dealing, but is also according to the best authority.

It is contended that a writ of error is but the continuance of the original suit, and like a bill of revivor, oran appeal, reinstates the suit, and refers all parties and things involved, to its first commencement. We do not concede that such, in all cases, would be the consequences of a bill of revivor or of an appeal. But in this case, we think the analogy does not hold. In the obvious nature and character of the proceeding, a writ of error is a new and original suit. Original process issues in it, and must be served to bring the adverse party into court. The relative character of the parties is changed ; new pleadings are made up, and a final judgment upon it, though it may operate upon the original cause, is nevertheless a termination of the now suit or process in error. We do not meddle with the nice distinctions, by which a writ of error has been treated as a defensive proceeding, and a continuance of the cause in which the party alleged he had been prejudiced by an erroneous judgment. Though this proposition has been urged, arguendo, in the most respectable tribunal of our country, wo are not apprised of any case where it is made a ground of decision. We adhere to the doctrine that the writ of error is a new suit, and can only affect parties or strangers from the service of the citation. The judgment must, therefore, be.for the defendant.  