Lis pendens is said to be general notice to all the world ; see Story, Eq. Jur. § 405 ; 2 P. Wms. 282; Woodfolk v. Blount, 3 Hayw. (Tenn.) 147, 9 Am. Dec. 736 ; but it has been said that it is not correct to speak of it as, a part of the doctrine of notice; the pur chaser pendente lite is affected, not by no tice, but because the law does not allow litigating parties to give to others, pending the litigation, rights to the property in dis pute so as to prejudice the opposite party. Per Cranworth, L. C., in 1 De G. & J. 566. The doctrine rests upon public policy, not notice ; Newman v. Chapman, 2 Rand. (Va.) 93, 14 Am. Dec. 766; Dovey's Appeal, 10 W. N. C. (Pa.) 389; Bisph. Eq. 274; Murray v. Ballow, 1 Johns. Ch. (N. Y.) 566.
But it has been said that the basis of the rule is involved in controversy. One line of authorities speaks of it as an equitable doc trine based on constructive notice; 2 yes. Sr. 571; King v. Bill, 28 Conn. 593; the other insists that it is based on the principles of res judioata; 1 De G. & J. 566; Ureishaker v. White, 57 N. J. Eq. 60, 40 Atl. 200. It is said that where any requisite is lacking a purchaser of the property for value and with out actual notice should not be held to have constructive notice of the Ns so as to be bound by It ; it may equally be argued that the principle of res judicata is not under such circumstances applicablelo it ; 20 Harv. L. Rev. 488.
Filing a judgment creditor's bill consti tutes a Us pendens; Scudder v. Van Am burgh, 4 Edw. Ch. (N. Y.) 29. A petition by heirs to self real estate is not a its pendens; Clarkson v. Barnett's Heirs, 14 B. Munr. (Ky.) 164. Generally, suit is not pending till service of process; Bailey v. McG'inniss, 57 Mo. 362; Wade, Notice 152; but see Maddox v. Humphries, 30 Tex. 494. Where service is by advertising, lis pendens does not attach till the completion of the advertising; Bayer v. Cuckerill, 3 Kan. 282.
Only unreasonable and unusual negligence in the prosecution of a suit will take away its character as a lis pendens; Gossom v. Donaldson, 18 B. Monr. (Ky.) 230, 68 Am. Dec. 723; but it is held that there must be an active prosecution to keep it alive; 1 Russ. & M. 617; Carter v. Mills, 30 Mo. 432; Hayden v. Bucklin, 9 Paige (N. Y.) 512. But as long as the court retains jurisdiction, the doctrine applies; Benn. Lis Pend. 172.
The court must have jurisdiction over the property involved ; Beim. Les Pend. 153 ; and the property must be sufficiently described to establish its identity; id.; and the party who holds the title must be before the court as a party ; id. 162. But this would not be re quired in proceedings to enforce a lien on property within the jurisdiction of the court.
Filing the bill and serving a subpoena cre ates a Lis pendens in equity ; Tiedem. Eq. Jur. § 95; 7 Beay. 444; Herrington v. Her rington, 27 Mo. 500; Hayden v. Bucklin, 9
Paige (N. Y. 512; Center v. Bank, 22 Ala. 743; Union Trust Co. v. imp. Co.. 130 U. S. 565, 9 Sup. Ct. 606, 32 L. Ed. 1043; which the final decree terminates; 1 Vern. 318. Amendment of the bill after demurrer has been sustained thereto relates back to the filing of the bill, so far as the doctrine of Ids pendent+ is concerned ; Cotton v. Lacey, 61 Fed. 481. In the civil law, an action is not said to be pending till it reaches the stage of contestatio itii8.
It has been held that while a Us pendent+ against one taking under the defendant dates from the commencement of the action, a cross-bill seeking affirmative relief is notice to one taking under the plaintiff only from the moment of tiling; Bridger v. bank, 126 Ga. 821, 56 S. E. 97, 8 L. R. A. (N. S.) 463, 115 Am. St. Rep. 118. In England and in some states the notice by Us pendens begins upon the service of process or subpoena; Armstrong Cork Co. v. Refrigerating Co., 184 Fed. 199, 107 C. C. A. 93; Stone v. Tyree, 30 W. Va. 687, 5 S. E. 878. It is said that a suit and cross suit constituted one cause and notice of the suit is notice of the cross suit also; S. C. Hall Lumber Co. v. (Instill, 54 Mich. 624, 20 N. W. 616.
A voluntary assignment during the pend ency of a suit does not affect the rights of other parties, if not disclosed, except so far as the alienation may disable the party from performing the decree of the court; Story, Eq. Pl. § 351; Lee v. Salinas, 15 Tex. 495; as in the case of mortgage by a tenant in common of his undivided interest, and sub sequent partition; Westervelt v. fluff, 3 Sundt Ch. (N. Y.) 98.
An involuntary assignment by a plaintiff, as under the bankrupt or insolvent laws, renders the suit so defective that it cannot be prosecuted if the defendant objects; Garr v. Gowen, 9 Wend. (N. Y.) 649; 1 Hare 621; Story, Eq. PI. § 349. Not if made under the bankrupt law of 1841; Cleveland v. Boerum, 27 Barb. (N. L) 252.
The same may be said of a voluntary as signment of all his interest by a sole com plainant: 5 Hare 223; Story, Eq. 11 § 349.
A debtor need not pay to either party pen dente We; Mills v. Pittman, 1 Paige (N. Y.) 490.
The doctrine of Us pendens is modified in many of the states, and by statutes requiring records of the attachment to preliminary pro ceedings to be made, and constituting such records notice.
The phrase is sometimes incorrectly used as a substitute for auter action pendant, (q. v.). See City Bank of New Orleans v. Walden, 1 La. Ann. 46; Bennett v. Chase, 21 N. H. 570.
"It is part of our fast decaying real prop erty system ; it belongs to the palmy days of conveyancing." 11 Law. Quart. Rev. 6.
See Wade, Notice; Whitney, Lis Peudens; Newman v. Chapman, 2 Rand. ( Va.) 93, 14 Am. Dec. 774; Green v. Rick, 121 Pa. 130, 15 Atl. 497, 6 Am. St. Rep. 760, 2 L. R A. 48, and note.