LIS PEN D ENS (Lat.). A pending suit.
Suing out a writ and making attachment (on mesne process) constitute a lis pendens at common law. Bennett .v. Chase, 21 N. H. 570.
The doctrine of Ids pendens, as usually understood, is the control which a court has over the property involved in a suit, during the continuance of the proceedings, and until its final judgment has been rendered therein.
"The established rule is that a Us pendens, duly prosecuted and not collusive, is notice to a purchaser so as to effect and bind his interest by the decree; and the lis pendens begins from the service of the subpcena after the bill is filed." Murray v. Ballou, 1 Johns. Ch. (N. Y.) 566. This was said to be the "fundamental proposition" of the doctrine; Warren County v. Marcy, 97 U. S. 106, 24 L. Ed. 977.
The purpose of the rule is to keep the subject-matter of the litigation within the power of the court until the judgment or decree shall be entered; otherwise by suc cessive alienations pending the litigation, its judgment or decree could be rendered abor tive and thus make it impossible for the court to execute its judgment or decree; Houston v. Timmerman, 17 Or. 499, 21 Pac. 1037, 4 L. R. A. 716, 11 Am. St. Rep. 848. The rule will be applied even in a case where it is a phySical impossibility that the pur chaser could have known of the existence of the suit; Newman v. Chapman, 2 Rand.
(Va.) 93, 14 Am. Dec. 766. It was formulat ed in Lord Bacon's twelfth ordinance. There were earlier cases, the first being reported in Cro. Eliz. 677. See Bennett, Lis Pendent'.
An alienee, during the pendency of a suit, is bound by the proceedings• therein subse quent to the alienation, though before he became a party ; 4 Beay. 40 ; Baker v. Pier son, 5 Mich. 456; Harrington v. Slade, 22 Barb. (N. Y.) 166; Hersey v. Turbett, 27 Pa. 418.
Purchasers during the pendency of a suit are bound by the decree in the suit without being made parties ; 4 Russ. 372; 1 Dan. Ch. Pr. 375; Story, Eq. Pl. § 351 a; Fash v. Ravesies, 32 Ala. 451; Carr v. Cates, 96 Mo. 271, 9 S. W. 659; Shotwell v. Lawson, 30 Miss. 27, 64 Am. Dec. 145; Masson v. 12 La. Ann. 776; Zeiter v. Bowman, 6 Barb. (N. Y.) 133; Hersey v. Turbett, 27 Pa.
Gilman v. Hamilton, 16 Ill. 225 ; and will not be protected because they paid value and had no actual notice of the suit; Norton v. Birge, 35 Conn. 250 ; Ferrier v. Buzick, 6 Ia._ 258 ; Kellar v. Stanley, 86 Ky. 240, 5 S. W. 477; Shirk v. Whitten, 131 Ind. 455, 31 N. E. 87. A purchaser pendente lite cannot litigate, over again in an original independ ent suit, the matters determined in a suit to which his vendor was a party ; Mellen v. Iron Works, 131 U. S. 352, 9 Sup. Ct. 781, 33 L. Ed. '178; a purchaser is only charge able with notice when the purchase is from a party to the suit ; Green v. Rick, 121 Pa. 130, 15 Atl. 497, 2 L. R. A. 48, 6 Am. St. Rep. 760.
So also is the doctrine applied to a pur chaser during a suit to avoid a conveyance as fraudulent; Copenheaver v. Huffaker, 6 B. Monr. (Ky.) 18.
A citizen of the United States residing in a different state from that in which the suit is pending, is bound by the rule regard ing purchasers pendente lite; Caldwell v. Carrington's Heirs, 9 Pet. (U. S.) 86, 9 L. Ed. 60 ; and actual notice of the pendency of the suit is not necessary ; Fletcher v. Ferrel, 9 Dana (Ky.) 372, 35 Am. Dec. 143. It is said that the doctrine has no force or opera tion beyond the boundaries of the state where the suit is pending; Carr v. Coal Co., 96 Mo. 149, 8 S. W. 907, 9 Am. St. Rep. 328; but this does not, of course apply to a case where the court has jurisdiction of the res and of the party. The doctrine cannot be made applicable by state laws or decisions to negotiable instruments so as to affect persons not residing and not being within the state; Enfield v. Jordan, 119 U. S. 680, 7 Sup. Ct. 358, 30 L. Ed. 523.
Lis pendens by a mortga=gor under a prior unrecorded mortgage is notice to a second mortgagee; Bolling v. Carter & Womack, 9 Ala. 921. But see Newman v. Chapman, 2 Rand. (Va.) 93, 14 Am. Dec. 766. One tak ing a mortgage on property while a proceed ing to foreclose a vendor's_ lien thereon is pending, is bound by a decree in such pro ceedings as if a party thereto, and has no right of redemption other than that given by statute ; Owen v. Kilpatrick, 96 Ala. 421, 11 South. 476.