
    Benton et al. v. Shafer.
    
      Lis Pendens.
    
    1. A mortgagee of real property not part of an entire tract situate in more than one county, will not be charged with constructive notice of an action for the recovery of such property, pending in a county other than that in which the property is situated.
    2. The doctrine of lis pendens does not apply, unless the court has acquired, in some manner, jurisdiction of the subject-matter involved in the suit. Where, therefore, in an action to recover real property which is not an entire tract situate in more than one county, but a separate tract lying wholly in one county, the action is not brought in the county where the subject of the action is located, a bona fide purchaser of the property for a valuable consideration, without actual notice, and residing in the county where the property is situated, will not be charged with constructive notice of the pendency of such action at the time of his purchase, so as to prevent his acquiring a valid interest in the property.
    3. The heirs of P. brought an action in the Court of Common Pleas of Union county to partition two tracts of land situated repectively in Union county and Delaware county, and also, to set aside a deed, duly recorded, from P., to D. and L., of the Delaware tract, and to recover the same. The land in Union countv ivas not an entire tract with the land in Delaware county, but the two were separate tracts, one situated entirely in Union county, and one entirely in Delaware-county. While the action was pending in the court of common pleas, and before the rendition of final judgment in the case, D., one of the defendants, mortgaged his interest in the Delaware tract to M., who was, at the date of the commencement of the action, and ever since has been, a resident of Delaware county, M. had no actual notice of the pendency of the action, at the time of taking the mortgage; was not a party to the action; and the final judgment rendered in the action was never recorded in Delaware county.
    
      Held: That under sections 5055 and 505(5 of the Revised Statutes, M. was not charged with constructive notice of the pendency of the action, so as to be prevented from acquiring an interest in the subject-matter thereof covered by the mortgage, as against the title of the parties to the pending litigation.
    (Decided March 4, 1890.)
    Error to the Circuit Court of Delaware county.
    The defendant in error, Mary J. Sbafer, filed her petition in the Court of Common Pleas of Delaware county, against Daniel S. Benton, and the plaintiffs in error, Lewis Benton, Aaron Clover and Nancy Clover, asking for the foreclosure of a mortgage made to her October 28, 1882, by Daniel S. Benton, on the one undivided fourth part of 122| acres of land in Delaware county, Ohio, described in a deed dated August 9, 1878, from Phebe Benton to Lewis Benton and Daniel S. Benton, in which she conveyed to them the undivided half part thereof. The mortgage was given to secure the payment of Daniel S. Benton’s note for $571.28, dated October 17,1882, payable one year after date, with interest at eight per cent, per annum, and was duly recorded in Delaware county, November 23, 1882, in Yol. 28, page 149, of the records of mortgages.
    Daniel S. Benton was in default for answer and .demurrer.
    The defendant, Lewis Benton, set forth in his answer to the' petition, that Daniel S. Benton was not the owner of the one fourth part of the real estate described in the petition* but, as one of the heirs-at-law of Phebe Benton, was the owner of only one forty-eighth part thereof, that in January, 1880, the heirs-at-law of Phebe Benton instituted proceedings in the Court of Common Pleas of Union county, Ohio, for partition of the premises described in the petition ; and that at a public auction in partition, he, Lewis Benton? became the purchaser of the premises, and afterwards sold them to Aaron Clover, who entered into possession of the same.
    Aaron Clover and Nancy Clover, by their joint answer to the petition, set up the purchase from Lewis Benton, and prayed that their title might be protected.
    The court of common pleas found that the mortgage from Daniel S. Benton to Mary J. Shafer was the first and best lien on an undivided forty-eighth part of the 122| acres of land; that Daniel S. Benton did not have any title to the premises in the petition described, by virtue of the deed from Phebe Benton to Daniel S. Benton and Lewis Benton, but owned in fee-simple the undivided forty-eighth part of the premises, as heir-at-law of Phebe Benton, at the time he executed the mortgage to Mary J. Shafer; that the condition of defeasance in said mortgage had been broken, and that Mary J. Shafer was thereby entitled to have the defendants’ equity of redemption foreclosed.
    The plaintiff excepted to the judgment of the court of com- - mon pleas, and appealed to the circuit court. In the circuit court the cause was submitted on the pleadings, and the evidence embodied in an agreed statement of facts; which is as follows:
    “ It is agreed by the parties in this action :
    That a case was commenced and prosecuted in Union county, Ohio, in which Stephen Cranston and others, heirs-at-law of Phebe Benton, deceased, were plaintiffs, and Orson Benton, Daniel S. Benton, Lewis Benton and others were defendants, by petition filed January 17,1880, in which the plaintiff sought to set aside the deed of conveyance made by Phebe Benton to said Daniel S. and Lewis Benton of the tract of land in Delaware county, Ohio, upon which Mary J. Shafer holds the mortgage which she seeks to foreclose in the action at bar, and also to recover the said real estate situate in Delaware county, Ohio, and the partition of the same among the heirs of said Phebe Benton, deceased. Also in the same action was sought the partition of another tract of land in Union county, Ohio, among said heirs. And that the land in Union county, Ohio, is not a continuous or entire tract with the said land in Delaware county, Ohio, but are separate and independent tracts several miles apart.
    The land in Delaware county is in Virginia Military Surveys Nos. 2546 and 2897, and the land in Union county in Virginia Military Survey No. 4404.
    That Mary J. Shafer was not a party to said action in Union county.
    That the suit in Union county was pending when Daniel S. Benton executed and delivered the mortgage to Mary J. Shafer on the lands in Delaware county, but the final decree in said action was not rendered until March 10, 1883, in tire District Court of Union county, on appeal from the decision of the court of common pleas where judgment had been rendered in favor of said Lewis and Daniel S. Benton, sustaining the validity of said deed from Phebe Benton to said Daniel S. and Lewis Benton, of the said land in Delaware county. The decision of said common pleas court was rendered May 13, 1881, and on appeal from said common pleas court the district court rendered the following decision March 10,1883, viz.: “ On consideration whereof the court do find that the equity of the case is with the plaintiff and cross-petitioners, and that the deeds of conveyance mentioned in the pleadings from Phebe Benton to Orson Benton, Lewis Benton and Daniel S. Benton, dated August 9,1878, should be set aside and held for naught, and therefore it is ordered, adjudged and decreed by the court that said deeds of conveyance be and they are hereby set aside and held for naught, and said estate of Hiram and Phebe Benton is hereby ordered to be partitioned and settled the same as if said deed had never been made.”
    And finding and decreeing among other things that the interest of Daniel S. Benton, as one of the heirs of said Phebe Benton in the land in Delaware county, was one forty-eighth part which amounted to $84.73, net proceeds, and ordered that partition be made of said premises.
    
      Which judgment was affirmed by the supreme court and certified to the court of Union county, and the commissioners of partition in said case, appointed by said court, having reported the premises not susceptible of division, the court thereupon ordered said premises to be sold by the sheriff, which was accordingly done, and Lewis Benton became the purchaser at said sale of said tract of land in Delaware county, consisting of 122| acres, and received his deed for the same, and afterward conveyed the same to Aaron Clover, defendant, and the proceeds of the sale, by the sheriff aforesaid, were distributed according to the order of the Union county court to said heirs of Phebe Benton, deceased, and as one of said heirs, to Daniel S. Benton, one forty-eighth part.
    The above record of facts is admitted so far as the record thereof may be competent evidence in the trial of this case.
    And it is further admitted as a fact in this case that Phebe Benton is the person who made the deed of conveyance of the undivided one half of said land in Delaware county, Ohio, of which she had the title in fee simple, and that she died August 26,1879.
    And it is admitted as a fact that the deed made by said Phebe Benton to Daniel S. Benton and Lewis Benton is a general warranty deed, purporting to convey the undivided one half of said land in Delaware county, to said Daniel S. and Lewis Benton, their heirs and assigns in fee simple, and that the date of said deed is August 9, 1878, and the same was filed in the recorder’s office of Delaware county, and recorded in volume 72, pages 38 and 34, August 27, 1878, Record of Deeds of Delaware county, and under which deed Lewis and Daniel S. Benton went into possession, and under which title Mary J. Shafer claims her rights in this action as well as to whatever title the said Daniel S. Benton had as one of the heirs of Phebe Benton, deceased.
    It is further admitted as a fact that the record of the pendency of said suit in Union county, or the proceedings or decree rendered therein, are not recorded in Delaware county, Ohio.
    
      Mary J. Shafer’s mortgage, it is agreed, is dated October 28, 1882, filed for record November 11, 1882.
    It is also agreed that it is a fact that the plaintiff, Mary J. Shafer, was, at the date of the commencement of the action in Union county, and ever since has been, a resident of Delaware county, and never a resident of Union county.
    And that she had no actual notice in fact, other' than the notice which is presumed in law, of the pendency of said suit in Union county, or of the proceedings therein, when Daniel S. Benton executed and delivered to her the note and mortgage in suit.”
    Upon the foregoing agreed statement of facts, the finding and judgment of the circuit court was as follows :
    “ The court find on the issue joined between the plaintiff and the defendants that the equity of the case is with the plaintiff. And the court find that the defendant, Daniel S. Benton, has been duly served with notice by publication, according to law, of the pendency of this action, and is in default for answer and demurrer, and that the allegations of the petition as to him are thereby confessed by -him to be true. And the court do further find all the other issues between the plaintiff and said defendants, Lewis Benton and Aaron and Nancy Clover, in favor of the plaintiff and against the said defendants. And that there is due the plaintiff from the defendant, Daniel S. Benton, on the promissory note set forth in the petition, with the interest thereon to the first day of this term, to wit: December 14, 1886, the sum of $761.44, with interest at 8 per cent, from said date.
    The court further find that in order to secure the payment of said note and interest, the said Daniel S. Benton executed and delivered to said Mary J. Shafer, plaintiff, his certain mortgage as in the petition described, and on the premises therein described. That said mortgage was duly recorded in volume 28, page 149, November 23, 1882, of the Records of Mortgages of Delaware county, Ohio, and is a valid lien on the premises in the petition described, and that the conditions in said mortgage have been broken and said deed has become absolute.
    It is therefore adjudged and decreed by the court that unless the defendant, Daniel S. Benton, shall, within five days from the entry of this decree, pay or cause to be paid to the clerk of the court of common pleas, to which this case is remanded for further proceedings, the costs of 'this case, and to the plaintiff herein the sum of $761.44, so found due as aforesaid, with interest at 8 per cent, from the 14th day of December, 1886, the defendants’ equity of redemption be foreclosed and said premises be sold, and that an order of sale issue therefor to the sheriff of Delaware county, Ohio, directing him to appraise, advertise and sell said premises as upon execution, and report his proceedings to the Court of Common Pleas of Delaware county, Ohio.
    It is further ordered that this cause be remanded to the Common Pleas Court of Delaware county, Ohio, to carry this decree into execution and for all further proceedings.”
    To all of which findings, rulings and judgment, the defendants did, at the time, by their counsel, except, and thereupon the defendants filed a motion for a new trial, for reasons set forth in said motion, which motion was overruled by the court, to which the defendants did at the time except.
    This proceeding in error is prosecuted to reverse the judgment of the circuit court.
    
      Jones $ Lytle, for plaintiff in error.
    The doctrine of lis pendens is fully shown, by the following authorities, to apply in this case. Wells’ Res Adjudicata and Stare Decisis, sec. 32; Shirley v. Fearne, 33 Miss. 666; Commonwealth v. Diffenback, 3 Grant 375; Bank v. Sprague, 11 N. J. Eq. 535; Walker’s Am. Law, p. 419 and note c; Story’s Equity, § 405 and authorities cited, note 1 (a); Green v. Rick, 121 Pa. St. 130; Bishop of Winchester v. Paine, 11 Ves. Jr. 197; Newman v. Chapman, 14 Am. Dec. 774-779 (note); Bennett's Lessee v. Williams, 5 Ohio 462; Hamlin's Lessee v. Bevans, 7 Ohio, pt. 1, 161; Follerton v. Willard, 30 Ohio St. 192; Rev. Stat., sec. 5055.
    
      
      J. Hippie, for defendant in error.
    We claim that the court in Union county had no jurisdiction to recover the real estate in Delaware county, because it was not an entire tract, and lis pendens does not apply, and the adjudications of the court are simply void. Partition does not affect the title or liens of third persons; it only partitions to each claimant his part in severalty. Tabler v. Wiseman, 2 Ohio St. 207; McBain v. McBain, 15 Ohio St. 337. Sec. 5023, E. S., also limits the jurisdiction, when the action involves the recovery of title, to the county in which the land is situated, except where the property is an entire tract.
    Jurisdiction of parties is not necessarily jurisdiction of the subject matter. Rohn, Admr., v. Dunham, 13 Ohio St. 572. Failure to plead it. Steamboat v. Long, 18 Ohio St. 521. Judgment without jurisdiction may be attacked collaterally. Gilliland v. Sellers, 2 Ohio St. 223; Buchannon v. Roys, Id. 251; Evans v. Iles, 7 Ohio St. 233; Waits’ Actions and Defenses, 196; Van Dusen v. Sivert, 51 N. Y. 378; Jolly v. Folty, 34 Cal. 321; Spier v. Carll, 32 Ohio St. 236; Pennywitt v. Foote, 27 Ohio St. 615; 23 Cal. 401; 193; 23 Ill. 574; 35 Conn. 351.
    Persons having an interest in land must be made parties to suit to divest such interest. McArthur v. Porter, 1 Ohio 99; Frische v. Cramer's Lessee, 16 Ohio 139; Lessee of Irwin v. Smith, 17 Ohio 226; Lessee of Frimble v. Boothly, 14 Ohio 109.
    Secs. 5055 and 5056, Eev. Stats., construed together, determine this question in favor of the defendant in error.
   Dickman, J.

The object of the suit in Union county was, to set aside the deed of conveyance, executed by Phebe Benton to Daniel S. Benton and Lewis Benton, of the tract of land in Delaware county, upon which Mary J. Shafer holds the mortgage in controversy, also, to recover the real property embraced in the mortgage, and to cause partition of the same to be made among the heirs of Phebe Benton. In the same suit, partition among the same heirs was sought of another tract of land, situated in Union county. The land in Union county is not a continuous and entire tract with the land in Delaware county, but the two are separate and independent tracts, several miles apart.

Although when the estate is situated in two or more counties, proceedings for partition may be had in any county wherein a part of such estate is situated, and also in actions to recover real property when the property is an entire tract, yet, in partition, each tenant in common, coparcener, or other interested person, is entitled to be named as defendant therein ; and in an action to recover real property in an entire tract and situate in more than one county, all persons claiming title to, or an interest in the property, may be made defendants.

Conceding that all the proper parties were before the court at the commencement of the action in Union county, and up to the time when Mary J. Shafer received her mortgage from Daniel S. Benton, the question arises, whether upon the agreed facts in the present case, she is to be concluded by the judgment rendered in the Union county action. To that action she was not a party; at the date of its commencement and ever since she has been a resident of Delaware county; and she had no actual notice of the suit in Union county, or of the proceedings therein, when Daniel S. Benton executed and delivered to her the note and mortgage in litigation. She took her mortgage after searching the records of Delaware county, where she found the deed from Phebe Benton to Daniel S. Benton duly recorded, and no record of any lien or pending suit affecting the title of the Delaware county land.

The decision of the Court of Common Pleas of Union county was rendered May 13,1881, and the final decree in the action was rendered on appeal, March 10,1883, by the district court. The mortgage to Mary J. Shafer bears date October 28, 1882, and was filed for record November 11,1882. It is contended therefore, that notwithstanding the facts in the case, as the suit in Union county was pending when Daniel S. Benton executed and delivered to her the mortgage on the lands in Delaware county, she acquired no interest in the subject matter of the suit, as against the title of Lewis Benton, the purchaser at the partition sale, and the other plaintiffs in error.

The rule concerning the effect of Us pendens, unmodified by statute, would seem in some instances stern and inequitable in its operation. In Bellamy v. Sabine, 1 De. G. & J. 566, it was said by Turner, L. J.: “ Ic is not correct to speak of Us pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.” And yet, the doctrine of notice has not been eliminated in determining the effect of alienating property in dispute, pending the litigation.

But, the rule concerning constructive notice by lis pendens, has always been regarded by the courts as a harsh one in its application to bona fide purchasers for value.. In Hayden v. Bucklin, 9 Paige, 512, Chancellor Walworth said: “ This common law rule of requiring purchasers at their peril to take notice of the pendency of suits in'courts of justice, for the recovery of the property they are about to purchase, although it is nearly impossible that they should actually know that such suits have been commenced, has always been considered a hard rule, and is by no means a favorite with the court of chancery.” The stringency of the rule has led the English Parliament and the legislatures of many states to interfere, resulting in most material statutory modifications and restrictions. An example of such legislation is found in the English statute which provides that, a pending suit will not affect a purchaser foi’ value and without express notice, unless a notice of Us pendens has been properly registered in compliance with the statutory directions. Stat. of 2 and 3 Yict. Ch. 11, § 7; Pom. Eq. Juris. §§ 639, 640.

Our own statutory provisions are found in sections 5055 and 5056 of the Revised Statutes. Section 5055 reads ás follows: “ When the summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency; and while pending, no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s title.”

Under this section, if the land mortgaged to Mary J. Shafer had been situated in Union county instead of Delaware county, she would have taken the mortgage with constructive notice of the pending litigation, and would have acquired no interest in the property, as against the title of the plaintiffs in the action. The general rule is, that, as to real property located within the jurisdiction of the court where its judgments and decrees may become or be made liens upon the property, all men must take notice of and be bound by the pending litigation without regard to residence. But a mortgagee of real property, not part of an entire tract situate in more than one county, will not be charged with constructive notice of an action for the recovery of such property, pending in a county other than that in which the property is situated.

Section 5056 of the Revised Statutes, on the subject of Us pendens as to suits in other counties, provides as follows: “ When any part of real property, the subject-matter of an action, is situate in any county or counties other than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the recorder’s office of such other county or counties, before it shall operate therein as notice so as to -charge third persons, as provided in the preceding section; but it shall operate as such notice, without record, in the county where it is rendered.”

By this section of the statutes, where part of the real property in litigation is located in the county where the action is brought, and part in another county, the judgment, in the county where it is rendered, is. made to operate as notice of the pendency of the action, without record. In the county where the action is brought and judgment rendered, and the real property or a part thereof is situated, it is presumed under the statute, that a purchaser of the. subject-matter of the suit situated in that county, has knowledge of the prior proceedings upon which the judgment is founded, without regard to its record. But in a county where the action is not brought, and the judgment is not rendered, and the title to real property therein located is sought to be changed or affected, a purchaser is not presumed to have such knowledge of the pending action or proceedings leading to the judgment, and hence, the statute requires the judgment to be recorded in such county before it can operate therein as notice to a purchaser, as provided in the preceding section 5055 of the Revised Statutes. In the case at bar, it is among the agreed facts, that the proceedings, or decree rendered, in the suit in Union county, have not been recorded in the county of Delaware.

If the purchaser of a tract of land situated entirely, in the county of his domicil, who has no actual notice or information of any judicial proceedings in any county in reference to such land, searches the records of the county where the land is located, and finds no pending proceedings, judgment liens or other incumbrances affecting the title to the same, it is not the intent of the statute, that such purchaser shalL be compelled to examine the records of the courts of every county in the state, to find whether a suit is pending that would affect the title. And the section of the statute, now under consideration, in the protection of the innocent purchaser for value and without actual notice, accordingly provides, that a judgment rendered in a county other than that in which the purchased part of the land lies, shall^ be recorded in the county where such land is situated, before it shall operate therein as notice of the pendency of an action hr the county where such judgment was rendered.

But the doctrine of lis pendens which has been invoked in behalf of the plaintiffs in error, rests upon the jurisdiction of the court over the subject matter involved in the suit. “ To make the pendency of a suit notice, so as to affect the conscience of a purchaser, it is essential that the court have jurisdiction over the thing.” McLean, J., in Carrington v. Brents, 1 McLean, 167. In Jones v. Lusk, 2 Met. (Ky.) 356, it is said by Dubaxl, J.: “ Unless the petition shows unAn its face a case for the jurisdiction of the chancellor, the proceedings cannot operate as a lis pendens, even from the date of the service of process, so as to affect the property sought to be subjected, or to overreach a subsequent sale or other disposition of it.” See also, Fonbl. Eq. B. 2, ch. 6, sec. 3, note n.; Sorrel v. Carpenter, 2 Peere Wins. 482; Worsley v. Earl of Scarborough, 3 Atk. 392; Bishop of Winchester v. Paine, 11 Ves. Jr. 194; Murray v. Ballou, 1 Johns. Ch. 566; Bennett on Lis Pendens, secs. 98, 99, 100.

It is true, that the action in Union county was, to have partition of lands lying in that county, and also in Delaware county; and when tbe estate to be partitioned is situated in two or more counties, the proceedings, as before observed, may be had in any county wherein a part of such estate is situated. But, the purpose of that action, as appears from the agreed statement of facts, was also to set aside the deed of conveyance made by Phebe Benton to Daniel S. Benton and Lewis Benton, of the tract of land in Delaware county mortgaged to Mary J. Shafer, “and to recover the said real estate situated in Delaware county.” By section 5023 of the Revised Statutes, “ When the property is situated in more than one county, the action may be brought in either; but in actions to recover real property, this can only be done when the property is an entire tract.” The mortgaged real property situated in Delaware county was not part of an entire tract situate iii more than one county, but was a separate and independent tract of land located entirely in Delaware county. As the action to recover the real property was brought in Union county, where <no part of the land embraced in the mortgage was located, the defendant in error, Mary J. Shafer, cannot be held chargeable with constructive notice of the pendency of the action.

Judgment affirmed.  