
    Valentine v. Austin et al.
    
    
      (Supreme Court, General Term, Second, Department.
    
    December 10, 1890.)
    Lis Pendens—Effect of Cancellation.
    A Us pendens, canceled of record upon a judgment dismissing the action, is not notice, even of facts alleged in the complaint in such action, to those subsequently dealing with the title.
    Appeal from special term, Kings county.
    Action by Ludlow W. Valentine, an infant, by George W. Bergen, his guardian ad litem, against Herman T. Bichardt, Susan A. Austin, and Elizabeth H. Lunt, to set aside, for fraud, a deed of land from Catharine A. Valentine, under whom plaintiff claimed as her only child and heir at law, to defendant Bichardt, and also a deed from Bichardt to defendant Austin, and a mortgage from the latter to defendant Lunt. On trial by the court on issues framed and submitted to a jury, the court adopted the findings of the jury, and rendered judgment dismissing the complaint as to defendants Austin and Lunt, and in favor of plaintiff against defendant Bichardt as a trustee ex maleficio, for a sum of money, the value of the property, with interest with annual rests. From so much of the judgment as dismissed the complaint as to defendants Austin and Lunt, plaintiff appeals. For opinion on appeal from an order sustaining demurrer to answer, see 3 N. Y. tiupp. 906.
    Argued before Barnard, P. J., and Dykman, J.
    
      Cornell, Secor & Page, (Horace Secor, Jr., of counsel,) for appellant. Dailey & Bell, (James B. Bell, of counsel,) for respondent Austin. Charles A. Murphy, (W. C. Beecher, of counsel,) for respondent Lunt.
   Barnard, P. J.

The defendant Austin is a grantee from one Herman T. Bichardt, and the defendant Lunt is a mortgagee from Austin of the same premises. Bichardt acquired the title to the land by fraud and undue influence from one Catharine A. Valentine. Catharine A. Valentine was sane when she made the conveyance. Both of these defendants took their conveyance in good faith and for value. This fact is found by the jury and also by the court at the request of the plaintiff. Ho evidence is returned, but the appeal is taken from the findings and judgment therein so far as the same dismisses the complaint upon the merits as to the defendants Austin and Lunt. The facts found destroy the plaintiff’s claim. A purchaser in good faith and for value is one who takes without notice of any outstanding equity or lien not of record, or defect of title in any way. Simpson v. Del Hoyo, 94 N. Y. 189. There is no conflict in the findings. It is found that Mrs. Valentine, by a next friend, commenced an action to set aside the Bichardt conveyance because it was obtained from her by fraud and undue influence, and without consideration. This action had been dismissed “before the plaintiff opened or offered any testimony, ” and judgment was entered accordingly. There was a lis pendens filed in this action. When the defendants Austin and Lunt took the conveyance they caused a search to be made, and the search returned the finding of the lis pendens, and that it was canceled by order of the court on the 6th day of September, 1886. The appellants claim that it was the duty of these defendants to examine the complaint in the Bichardt action, and to take notice of what such an examination would disclose. This is too stringent a rule of constructive notice. The record was clear, and while there had been a Us pendens which affected the title, it had been discharged by a judgment which the evidence does not question. They know of no facts which should have put them upon inquiry, and then the want of diligence is want of good faith. Parker v. Conner, 93 N. Y. 118. The finding of good faith is irreconcilable with this constructive notice which is claimed to have been sufficient to put the parties on inquiry. The canceled Us pendens was not notice, except in the action in which it was filed, and all who dealt with the title while it was in force would be deemed bound equally as if they were parties to the action. Lamont v. Cheshire, 65 N. Y. 30. When the Us pen-dens was canceled by order it ceased to be notice to any one, and those who subsequently dealt with the title could rely upon the record. They were not bound to examine the complaint in an action which from the record had no basis. The judgment should therefore be affirmed with costs of appeal to each respondent.  