
    Hill Tolerton and Robert Tolerton, Executors of the last Will and Testament of James Tolerton, deceased, v. Jacob G. Williard and Christina A. Williard.
    If a petition for divorce and alimony "by the wife, specially describes certain real estate of the husband, charging it with equities of the wife, and asking an injunction to prevent alienation pendente lite, and also equitable relief, and the decree therein is such as that from it, it may be found that .the court acted on those equities and favorably thereto, the proceedings operate as a Us pendens, and the decree for alimony and settling equities will be a lien on the lands, preferable to that of a mortgagee who had actual notice of the proceedings for divorce and alimony, and whose mortgage was executed and recorded, pending those proceedings.
    Error to the District Court of Stark county.
    The amended petition, upon which the case proceeds, seeks to redeem and foreclose a mortgage given by Jacob G. Williard to James Tolerton. The mortgage covers a certain tract of land in section 25, Stark county. After the usual averments, the amended petition states that Christina A. Williard, wife of Jacob G., instituted proceedings for divorce, against her husband; that in said proceedings a divorce was granted, and alimony allowed in the sum of $5,000, which was made a lien upon the premises covered by tlie mortgage. This decree was rendered 28d November, 1861, the mortgage having been recorded September 6th of the same year. It is then averred that certain judgments had been rendered against Williard prior to both decree and mortgage. The land in question was sold under-these judgments, and Christina Williard bought them at sheriff’s sale, and that she paid off the judgments and kept the balance of the purchase money herself. The-prayer for relief is, that the priority of liens be determined; that an account be taken; that the court fix the amount to-be paid by plaintiffs to Christina A. Williard, to redeem the lands and subject them to sale under the mortgage, and that the property be sold and the mortgage debt paid, and for general relief.
    In her answer, among other things Christina Williard says, that she did file, against her husband, her petition for divorce and alimony, and “for the establishment of her equitable title in and to the real estate aforesaid,” and she avers that the court granted her divorce, “ and recognized her said equitable title to said real estate, and awarded to her, because of her said title therein, and as her alimony, the sum of $5,000, making the same a lien upon said real estate.” She further avers that in said divorce proceeding she sought to enjoin her husband, Williard. from disposing of, or in any wise affecting the title to said real estate, and that said James Tolerton had actual knowledge-of her petition and of the proceedings, from their commencement until final decree, and also had knowledge of her equitable title to this real estate. She'says she bought the property at sheriff’s sale, paid off the prior judgments and liens out of the purchase money, and the balance thereof credited upon the decree of $5,000 in the divorce and alimony ease. She therefore claims that this decree was prior-in right to the mortgage, and should be satisfied in preference thereto.
    In the reply, plaintiffs ask that their mortgage be paid out of the purchase money in the hands of Christina A.. Williard.
    On appeal to the district court, that court made a finding of facts, as follows:
    That Jacob G-. Williard and Christina A. Williard were-■married in the year 1823; that said Christina A. Williard’s father died in the year 1833; that in the years 1834 and 1835 she received, as the distributive share of the estate of her father and brother, twenty-seven hundred dollars ($2,700), which went into the hands of her said husbaud, Jacob G. Williard. That in the year 1837, jointly with one Joseph Thompson, said Jacob G. Williard purchased ■the lands described in the plaintiff’s mortgage, with other ■lands adjoining, paying as his share of the.purchase money the sum of sixteen hundred dollars ($1,600), which was part ■of the moneys received by him through his wife as aforesaid. That in 1841, the title to all of said lauds being in said Thompson and Jacob G. Williard, they divided the lands and quitclaimed to each other, and thereby the title to the lands described in said mortgage became vested in ■said Jacob G. Williard, and he and his wife, the said 'Christina, and their family continued to reside thereon, and said Jacob G. Williard claimed to be the owner thereof, and farmed said land, or had it farmed, until the divorce was granted, as hereinafter stated. That on April 2, 1861, said Christina A. Williard filed her petition in the ■court of common pleas of this county, for a divorce, which petition contained the following averments in relation to ■said moneys received by said Jacob G. Williard from the ■estate of said father and brother of said Christina A. Williard, and the purchase of said laud: “ She further says that said defendant now owns in his own name the following described real estate, situate in said county of Stark, to wit: A tract of two hundred and thirty acres, being the •east part of section twenty-five (25), in Washington township, in said county, but bounded on the north by tracts of land owned by George Watson and Elisha Davis in said section ; on the west by a tract of land heretofore conveyed by said defendant to his son Bernonilli J. Williard, a tract ■of Reuben Lozier, and a tract owned by John Meredith; ■on the south and east by the section line. She further says, that subsequent to her marriage to him, said defendant received of her, of her father and brother’s estate, moneys belonging to her as her inheritance, up-^ ward of twenty-seven hundred dollars ($2,700), and that he afterward purchased the whole of the aforesaid half section at and for the sum of sixteen hundred dollars-($1,600) purchase price, and that it was understood that said half section, in consideration of the moneys thus received of the plaintiff, was to be conveyed and secured to-the plaintiff and her heirs, as her separate estate and property, but that defendant wrongfully caused the conveyance to be made in his own name, and has since sold a large portion, and also mortgaged the same.” And the prayer of,said petition was as follows: “The plaintiff therefore prays that the marriage contract subsisting between her and said defendant be dissolved, and a divorce granted her; that she may have the care and custody of her said minor children. That thereupon the estate she brought to the said defendant, or its equivalent in money, be adjudged toller out of the property, real and personal, of said defendant, and that she may have reasonable alimony in the-residue of said defendant’s estate, real and personal, or that the aforesaid real estate in the east part of said seotiou twenty-five (25) be adjudged to her as her separate estate, and that she may have reasonable alimony in the residue of the defendant’s property. That said defendant be restrained by temporary injunction from in anywise selling or incumbering the real estate or personal property hereinbefore mentioned, or any part thereof, ... all which until after the hearing of this cause, and she prays such other and further relief as may be deemed just and proper.” No injunction was, however, granted in said proceeding. The said divorce proceeding was continued at the June term of said court, and was tried at the October term, 1861 (which commenced October 21,1861), of said court, and a decree entered as follows, on November 28, 1861:
    “ That the marriage contract was entered into between. • the parties, and that they lived and cohabited together as husband and wife, and had issue as in the petition set forth,, and that during coverture the defendant received, through. and from the plaintiff, as her share of her father and brother’s estate, the amount of money in the aggregate-mentioned in her petition, and was by him applied toward paying the purchase-money of the real estate described in the plaintiff’s petition as therein set forth. The court further finds that said Jacob -G-. Williard wTas, and is, guilty of willful absence, . . . whereupon the court orders,, adjudges, and decrees that the marriage contract subsisting between said parties, plaintiff and defendant, be, and the-the same is, hereby dissolved, . . . and that the defendant pay to the plaintiff, within six months from the-close of the present term, the sum of five thousand dollars-($5,000) (alimony, as well as repayment of money by him received by and through the plaintiff, and invested in thereat estate aforesaid). That the real estate described in the plaintiff’s petition be held and charged with, the payment of said sum of five thousand dollars ($5,000), with interest; for which purpose it is ordered that a lien be, and the same is hereby, created thereon, until said sum shall be duly paid, with interest, and that in default of payment within the time limited, said real estate be sold by the sheriff' of said countyl
    The court further find that the plaintiff’s testator, James Tolerton, was long before the filing of said petition for divorce and alimony a creditor of said Jacob G. Williard, having loaned money to him and taken his notes therefor about the year 1850, which notes were still outstanding and unpaid, and the plaintiffs testator bad also loaned money to a son of the defendant’s in the year 1853, taking notes therefor signed by said son and “by said Jacob G. Williard ashis surety, which notes were also unpaid, although some payments had been made thereon. That he commenced actions on these notes in the court of common-pleas of this county on the 23d day of July, 1861, against the said makers; the rule day for answer in the cause so-commenced expired on the 24th day of August, 1861, and no answers were filed, although the defendants were properly served with process.
    Upon the 6th day of September, 1861, the plaintiff’s testator and said Jacob G. Williard settled said suits ; and the note and mortgage set out in the petition, and on which this suit was brought, were given by said Jacob G. Williard for the amount due from him to said James Tolerton, by reason of said notes for the money loaned to him and his son as aforesaid. The note was for the amount actually •due at said settlement, and the note and mortgage were executed by said Jacob G. Williard and received by said 'Tolerton in good faith to secure the payment of his debt, and the mortgage was left for record at the office of the recorder of Stark county on the same day, and duly recorded, so as to become a valid lien on the land from that date, and •on the same day he dismissed said suits against said Williard and his son. When the plaintiff’s testator trusted said Jacob G. Williard he knew nothing as to the lands, ■except that the title was iu Williard. The first knowledge that he had that Mrs. Williard claimed any rights therein, •or claimed to have been the means of procuring the money to pay therefor, was after the filing of her petition for •divorce and alimony; but when he took said mortgage he knew of the filing and pendency of said petition and of the •claims made therein.
    It is then found that certain judgments were recovered against Williard, all of which-were prior to the decree of •divorce and alimony as well as the mortgage. Under these judgments, the property was sold, and Christina Williard became the purchaser. The purchase money was distributed under an order of court, paying off the judgments and a tax lien, and the balance to Christina Williard, upon her decree in the divorce and alimony case. After Tolerton took his mortgage he wrote to Mrs. Williard, informing her that he had agreed to wait on Williard for five years, but making no mention of having obtained a mortgage, and she had no actual notice of the mortgage until after she had taken the sheriff’s deed, although the mortgage was properly, recorded, .as required by law, on the 6th day of September, a. d. 1861; and the court find that there is due said plaintiffs •from said Jacob G. Williard, upon said note and mortgage in the petition set forth and declared on, including interest to the first day of the present term of this court, the sum •of ten hundred and twenty-four dollars and forty-two cents ($1,024.42), which he is ordered to pay to the plaintiffs within sixty clays from the present term of the court, and ! in default of such payment it is ordered that execution issue to collect the same; and as matter of law the court find that upon said facts herein found and set forth, the lien •of the said mortgage of the said James Tolerton, which took effect on said 6th day of September, a. d. 1861, was ¡subject to the lien of the said decree of said Christina A. Williard for her alimony aforesaid, and that the plaintiffs .are not entitled to have their said lien satisfied out of said purchase money or to redeem said lands; to all which findings and holdings the said plaintiffs except, and thereupon the plaintiffs move the court for a new trial herein, on con¡sideratiou of which motion the court overrule the same, to which the said plaintiffs except. It is therefore considered by the court that said Christina A. Williard, defendant, go hence without day, and recover of the plaintiffs her costs herein expended to be taxed, to which the said plaintiffs ■except; and it is ordered that a special mandate issue to the •court of common pleas to carry this decree into execution.
    
      J. A. Ambler, for plaintiff in error:
    The decree of the court did not establish any interest in the land as belonging to Mrs. Williard, but merely decreed her alimony. Now the lis pendens could not reach beyond the title established by the decree, and as no title was established, the claim in the petition could not affect the title of ■a purchaser or incumbrancer. Hamlin’s Lessee v. Bevan, 7 Ohio (pt. 1), 161.
    Whatever might have been the effect upon Tolerton’s mortgage had a specific title in Mrs. Williard, or trust in her favor, been established by the suit, such right or trust mot having been established, the proceeding could not affect his mortgage. Hamlin’s Lessee(v. Besan, 7 Ohio (pt. 1), 161; Ludlow v. Kidd, 8 Ohio, 542; Gibler v. Trimble, Ik Ohio, §28; Bennett v. Williams, 5 Ohio, 461; Murray v. Ballou, 1 Johnson Ch. 566; 1 Story Eq. Juris., secs. 405, 406.
    
      William A. Linch, for Mrs. Willard :
    The decree for alimony was superior to the mortgage. The suit for divorce and alimony was pending when the mortgage was taken.
    Section seventy-eight of the code is a substantial declaration of the doctrine of lis pendens as recognized by the-courts before the code. The word “title” is to be read broadly, and the rule is not confined to cases wherein the-plaintiff asserts wbat might be technically called a title in the subject-matter.
    A charge upon, the separate estate of a married woman,, sought to be enfoi’ced by a proceeding in equity, has been held to be within the rule. JDeCamp v. Gashill, 1 S. C. C. 337.
    So an action to reach equities in aid of execution. Stoddard’s Lessee v. Myers, 8 Ohio, 203.
    Eor the general doctrine of Us pendens and the scope of its application, see Leading Cases in Equity (4 Am. ed.),. vol. 2, pt. 1, pp. 142, 192.
   Wright, J.

Christina A. Williard filed her petition for divorce and alimony April 2, 1861, and obtained her decree November 23, 1861, and the question is one of priority between this decree and the Tolerton mortgage, recorded September 6, 1861.

The divorce proceeding seems to have had a double aspect, in that it asks for alimony, and also the protection of' the wife Christina’s equitable rights in the property, the-subject of. dispute. This property was bought with her own money, by her husband, who also received-other of his wife’s money.

It. seems to be conceded by counsel for plaintiff in error that if Mrs. Williard’s petition in the divorce case had set up an equitable title to the land, and her equitable title had been established by the decree in that ease, there would. bavé been a Us pendens, which would have prevented third persons from acquiring a title by purchase adverse to her claim. It is true that the decree in that case was not a formal decree upon her equities, but it is evident that the court in coming to its conclusion did take these equities into consideration, so that the decree may fairly be considered an equitable one in her favor. In Harrer v. Wallner, 80 Ill. 197, a prayer for partition was included in a bill for divoi’ce, and the wife was allowed to make all parties claiming any interest in the land through or under any pretended or real conveyance from her and her husband, or either of them, and settle all the rights of the parties in one suit.

The statute of divorce and alimony (1 S. & C. 512) provides that when a divorce is granted by reason of the aggression of the husband, the wife shall be restored to all her lands, tenements, and hereditaments not previously disposed of, and shall be allowed such alimony “as the court shall think reasonable, having due regard to the property which came to him (the husband) by marriageand this alimony is to be “ allowed to her in real or personal property, or both, by decreeing to her such sum of money, payable either in gross or installments, as the court may deem just and equitable.” A large discretion is here given the court, and in respect of the alimony its jurisdiction would seem to' be in the nature of chancery. It is authorized to do what is “ equitable” in the premises, and when, in a proceeding like the one under consideration, the wife claims rights in her husband’s property other than those arising from the marital relation, and insists upon them, in connection with lier claim for alimony, the court is fully authorized to pass upon them. In view of this statute, therefore, it was doubtless deemed “just and equitable ” to make a larger allowance, by reason of the fact that the wife’s property had all gone to the husband and that this identical real estate was purchased with her means. If this be in fact the assertion of an equity, it is n.ot the less so that it is made under the name of alimony.

In Dinet v. Eigenman, 80 Ill. 274, it is held that when the husband receives property of his wife by marriage, or converts his means into real estate, taking the title in his own name, or when the wife, from her industry, economy, .and business capacity, contributes largely to the accumulation of a fortune, it is equitable and just that she should have a large share in such property, on divorce for the husband’s fault.

But, again, in the divorce suit, this land was specifically ■described, an equity in it was claimed, an injunction asked to prevent the husband from disposing of it pendente lite, of .all of which Tollerton had notice when he took his mortgage, and in -the decree the alimony was fastened upon the land.

In the case of Hamlin’s Lessee v. Bevans, 7 Ohio (pt. 1), 161, which was a question of priority between judgments and a decree for alimony, the court say : “ Where the object of a suit, in law or equity, is to recover specifically a ■described piece of real estate, the pendency of the suit is held to be notice to all the world of the claim, aud a final judgment or decree in his favor overreaches intermediate purchases — that is; purchases made pending the suit. So, if the suit be against a trustee, to affect his title to land as trustee, and a final decree be rendered to that effect, the land is bound from the service of process.”

In that case, the court observe that the petition for divorce alleged no claim to any specific tract of land.

It is said that a purchase from a defendant in a bill to enforce an equitable right of any kind, will not confer a valid title. White v. Tudor, 2 Leading Cases in Equity, (pt. 1), 192.

In the case before us, the property is described so that any who chose to inquire might find out precisely what it is.

In addition to the wife’s equity, her alimony is sought to be charged upon it, and an injunction is asked to prevent any alienation. If that injunction had been allowed, it would not have been any further notice, than the mere filing of the petition, to Tollerton, the mortgagee. The notice of injauction would not have been served upon him, but. upon the husband. These facts, it appears to us, make such a case that the mortgage must be considered as having been made pendente lite, and that it is a lien inferior to the decree.

We have the less hesitation in coming to this conclusion, inasmuch as the facts found show that Tollerton, the testator, had brought suit against Williard in July, 1861, the alimony suit then pending. Perhaps -he was apprehensive that, if he awaited the slow process of the law, the alimony decree would be rendered before his judgment could be obtained, and thus his claims would be subordinate to the rights of the wife. Be this as it may, he makes an arrangement with a husband, already sued for divorce, the mortgage is given, and the suits dismissed. If Tollerton’s claim,, as now made, is correct, he has thus succeeded in metamorphosing a claim, at least of doubtful validity against the wife, into one entirely superior to all her rights. It might further be observed, that after Tollerton took his mortgage he wrote to Mrs. Williard, informing her that he had agreed to wait on Williard for five years, but making no-mention of having obtained a mortgage, and she had no actual notice of the mortgage until after she had taken the sheriff’s deed. Possibly, if Tollerton had informed her of all the facts, with the same frankness with which he stated that he had given her husband liberal time, and had Mrs. Williard been duly advised of the existence of the mortgage, her course might have been different.

Judgment of the district court affirmed.  