One who takes an assignment as indemnity against a precedent liability is not a purchaser within the meaning of the statute requiring notice of the pendency of the suit to be filed.42 One who purchases land pending an action to foreclose a mortgage on it, or after final judgment, with notice of the pending action, or of the judgment, is bound by the judgment. If no notice of lis pendens has been filed, and he purchases without notice after entry of default, but before final judgment, he is not bound by the judgment, even if a final judgment gives constructive notice to parties dealing with the subject-matter, and a second purchaser is in no worse position than his grantor.43 An action is pending after default and until final judgment is entered. But a purchaser with notice occupies the same position as his grantor in reference to the issuance of a writ of assistance to the purchaser under the decree.44 § 3979. Purchaser bound by decree. A person purchasing during the litigation, a notice of lis pendens being on file, is bound by the decree in such suit.45 But it does not apply to one whose interest subsisted before the suit was commenced, and who might have been an original party.46 A purchaser of mortgaged premises who neglects to have his deed recorded until after the filing of the lis pendens for the foreclosure of the mortgage is precluded from asserting title under it as against the purchaser at the foreclosure sale.47 The record of a chancery suit wherein a conveyance of land is decreed is not constructive notice, binding upon subsequent purchasers from the party decreed to convey, until after it has been recorded in the county where the land is situated.48 42 Leavitt v. Tylee, 1 Sandf. Ch. 207. 43 Abadie v. Lobero, 36 Cal. 390. 44 Montgomery v. Byers, 21 Cal. 107. When action is to be deemed pending. See Cal Code Civ. Pro., § 1049; Naftzger v. Gregg, 99 Cal. 83. 45 Hurlbutt v. Butenop, 27 Cal. 50; Calderwood v. Tevis, 23 id. 335; Horn v. Jones, 28 id. 194; Zeiter v. Bowman, 6 Barb. 133; Griswold v. Miller, 15 id. 520; Cleveland v. Boerum, 23 id. 201; S. C., 27 id. 252; S. C., 3 Abb. Pr. 294. 46 Hopkins v. M'Laren, 4 Cow. 667; Parks v. Jackson, 11 Wend. 442; 25 Am. Dec. 656. 47 Ostrom v. McCann, 21 How. Pr. 431. 48 Rosser v. Bingham, 17 Ind. 542. 8 3980. Tax suit. In an action to enforce the lien of a tax by a sale of the property, it is not necessary to file a lis pendens. 19 § 3981. United States courts. The statute of California relating to the filing of lis pendens does not apply to suitors except in the state courts. Neither that statute nor any equivalent proceeding has been incorporated into the rules of the United States Supreme Court, as applicable to suits in equity, nor into the rules of the United States Circuit Court for the ninth circuit.50 § 3982. When to be filed. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may file with the recorder of the county in which the property is situated a notice of the pendency of the action.51 A purchaser of real property, pending suit affecting the title to it, is not bound by the judgment unless notice of lis pendens be filed with the county recorder before the purchase.52 The court has no power to take from the files a lis pendens regularly filed.53 § 3983. Notice of suit in partition. Form No. 959. [TITLE.] .... Notice is hereby given that an action has been commenced in the Superior Court of the state of in and for the county of ... by the above-named plaintiff against the above-named defendant, which suit is now pending. That the object of said suit is to obtain partition between plaintiff and defendant of the premises mentioned in the complaint in said action, and hereinafter described, according to the rights of the parties therein; that the premises affected by the suit are situated in said city and county, and are described as follows, to-wit [describe property]. [DATE.] 49 Reeve v. Kennedy, 43 Cal. 643. 50 Majors v. Cowell, 51 Cal. 478. 51 Cal Code Civ. Pro., § 409. 52 Richardson v. White. 18 Cal. 102. 53 Pratt v. Hoag, 12 How. Pr. 215. E. F., Attorney for Plaintiff. § 3984. Notice of pendency of action of ejectment. [TITLE.] Form No. 960. ....." in and for by the above-named Notice is hereby given that an action has been commenced in the Superior Court of the state of ... the city and county of.... plaintiff against the above-named defendant, to recover certain real estate, and the possession thereof, with damages for the withholding thereof; and that the premises affected by this suit are situated in the said city and county, and are bounded and described as follows, to-wit [describe property]. [DATE.] [SIGNATURE.] § 3985. Notice of pendency of action to quiet title. [TITLE.] Form No. 961. Notice is hereby given that an action has been commenced in the Superior Court of the state of in and for the county of by the above-named plaintiff against the above-named defendant, to quiet the title to the premises and real estate in the complaint in the said action, and hereinafter described, and to determine all and every claim, estate, or interest therein of said defendants, or either or any of them, adverse to the said plaintiff, and that the premises affected by this suit are situated in said county, and are bounded and described as follows, to-wit [describe the premises]. A. B., [DATE.] Attorney for Plaintiff. PART SEVENTH. CHAPTER I. ARREST AND BAIL. § 3986. In general. The laws of the land and an enlightened public opinion long since decreed that there should be no more imprisonment for debt, unless there was some act connected with the contracting of the debt or avoiding its payment which tainted the transaction with fraud.1 In this age the mere misfortune of poverty excites sympathy, instead of provoking the additional misfortune of the jail. It will thus be seen that the subject of arrest and bail, in matters pertaining to civil actions, is very limited. It is provided by the California statute, and the same provision is found in most of the states, that no person shall be arrested in a civil action except as prescribed by this Code. The statute proceeds to designate five instances in which a defendant may be arrested in a civil action, which will be referred to hereafter; and the practitioner must remember two facts when he attempts to get an order of arrest in a civil action: 1. This statute will be strictly construed, and if there be a question of doubt about defendant's guilt, the courts will incline to innocence and favor the defendant; and, 2. In no case should a defendant be arrested in a civil action, unless it is clear that the facts charged will bring him within the letter as well as the spirit of the statute. This extraordinary remedy was only intended for extreme cases. It should be invoked only as a punishment for dishonesty, and hence it is the rule that in the affidavit prescribed by section 481, California Code of Civil Procedure, the mere statement in the language of the statute showing defendant's guilt is not enough; the facts must 1 Const. of Cal., art. 1, § 15; Const. of Wash., art. 1, § 17. 2 Cal. Code Civ. Pro., § 478. be clearly and pointedly stated, not the result of facts which are assumed to exist, but the history of the fraudulent acts must be given, and given with particularity, and no form of affidavit can be given which will fit all cases, or even more than one, except only those portions which are purely formal. But it has been held that, to entitle a party to the remedy of arrest, it is not necessary that he should know positively the commission of a fraud. It is sufficient if the circumstances detailed would induce a reasonable belief that a fraud was intended. Hence arrest is maintainable by the assignee of a cause of action. An original cause of action is merged in a foreign judgment in an action for fraud, and defendant is not arrestable in an action on such judgment. But a vacated judgment is no bar to arrest for the same cause, though ordered to stand as security. Fraud in incurring original indebtedness is not merged in taking the debtor's note or check, but he may be arrested after its dishonor. But bringing an action on the check of two joint debtors invalidates an arrest of one for a separate fraud.8 The provisions of section 72 of the California. Practice Act have reference to mesne and not to final process.10 In cases of fraud, it appears that there can be but two judgments one against the person and the other against the property; in the former of which the execution issues directing the officers to arrest and confine the party until the debt is paid.11 To authorize an arrest of the defendant upon execution issued upon a judgment recovered in an action upon contract, the fraud for which the arrest is sought must be alleged in the complaint, and be passed upon by the jury, and be stated in the judgment.12 When the circumstances authorizing an arrest occur subsequently to the filing of the complaint, application 8 Southworth v. Resing, 3 Cal. 378. 4 Grocers' Nat. Bk. v. Clark, 32 How. Pr. 160. Mallory v. Leach, 23 How. Pr. 507; S. C., 14 Abb. Pr. 449, n. • Mott v. Union Bk., 8 Bosw. 591. As to how far original remedy for fraud may be waived by a subsequent negligence or compromise, see Adams v. Sage, 28 N. Y. 103. 7 Shipman v. Shafer, 14 Abb. Pr. 449; see, also, Murphy v. Fernandez, 10 Bosw. 664. 8 Woodruff v. Valentine, 19 Abb. Pr. 93. 9 Cal. Code Civ. Pro., § 478. 10 Stewart v. Levy, 36 Cal. 159. 11 Matoon v. Eder, 6 Cal. 60. 12 Davis v. Robinson, 10 Cal. 411. Vol. II 119 |