694
FEDERAL REPORTER. SHROPSHIRE and another v. LYLE. ','
(Oircuit Oourt, B. 1.
O. D. June 29,1887.)
VENDOR'S LmN-"ERBAL CONTRACT-CONVEYANCE AFTER SUIT.
Under Code Iowa, section 1940, an unreoorded lien for unpaid purchase money cannot be enforced by the vendor after a conveyance by the vendee. unless such conveyance is made after suit brought by the vendor. Held. that a verbal centract for the sale of hind was not a conveyance, within the meaning ofthis section,and did not defeat the lien of the vendor, where there was a subsequent conveyance, within the meaning of the section, in accordance with the,terms I)f the contract, after suit brought by the vendor.
2.
SAME-'.:.:CONVEYANCE AFTER PETITION ]j'ILED.
In such (laSe the conveyance was executed after the petition was filed in the cO\lnty which the land was' situated, but before service of notice upon the defendant in the action. Held, that the conveyance was made after suit brought, within meaning of section 1940, it being expressly provided by section 2628 of the Iowa Code that, when a petition has been filed affecting real estate, the action is pending SQ as to charge third persons with notice of its pendenc;y, and that while so pending no interest can be acquired by third persons in the subject-matter thereof, as against the plaintiff's title. if the real property affected be situated in the county where the petition is filed.
8.
SAME-JURISDICTION OF CIRCUIT COURT.
A purchaser after suit brought in such a case is not a necessary party to the suit, and the 'fact that he is a citizen of the same state as the complainant will not defeat, the jurisdiction of the circuit court.
4.
SAME-EQUITIES 011' PURcHASER-INTERVENTION.
The fact of ,his citizenship would not prevent such purchaser from intervening in the suit in the circuit court for the protection of his equities, and a decree will not, therefore, be denied upon the motion of the defendant, when it appears that the purchaser had f1,ll1 notice of the pepdency, of the suit, on the ground that such purchaser might, if he chose, be able, to assert an equity, by shoWing that he made a part payment on the land ,before the execution of the conveyance and the filing of t'be petition. : ,
InEquity. Bill for accounting, and to establish vendor's lien. PhilJ,ips &: DW!j, for complainants. Oale, Me Vey &: Clark, for defendant. ,SHIRAS, J. The bill in this cause was filed for the purpose of establishing the fact that the defendant, John Lyle, held the title to certain realty situated.in Jasper county, Iowa, as security in the nature of a roortgage, the owner thereof being' Lorelta Shropshire; to ascertain the amount due to Lyle; and finall;y, the land having in the tn,ean time been sold by consent to Lyle, to determine the am0unt due to Mrs. Shropshire after deducting the sums found due to Lyle, and chargeable against the land, and to establish a vendor's lien for the amount found due against the land sold. The suit was originally brought in the district court of Jasper county, the petition beinp;filed February 26,1883, and was thence removed into this court. Upon previous hearil1p;s of the cause, it has been adjudged and decreed that the defendant, Lyle, originally held the title by way of security only; that he was accountable for the agreed price at which the land was finally sold to him; and that, after deducting the amounts coming to him, he was indebted to Mrs. Shropshire in the sum of $10,810.46,
SHROPSHIRE V. LYLE.
695
the said amount being the unpaid part of the purchase price of said realty. The question nriw presented for decision is whether complainant is entitled to a vendor's lien on the land for the amount found due. Section 1940 of the Code of Iowa provides: "N 0 vendor's lien for unpaid purchase money shall be recognized or enforced in any court of law or equity after a conveyance· by the vendee, unless such lien is reserved· by conveyance, mortgage, or other instrument, duly acknQwledged and recorded, or unless such conveyance by the vendee is made after suit brought by the vendor. his executor or assigns. to enforce such lien," etc. Counsel for defendant claim that the land was conveyed by John Lyle
to his grandson George Lyle before the suit was brought, and that fore the lien is defeated. As already stated, the petition was filed February 26, 1883, in the county wherein the land is situated, and by the term's 'of section 2628 of the Code it is declared that, "when a petition has been filed affecting real estate 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, if the real property affected be situated in the county where the petition is filed." . The conveyance to George Lyle was made March 1, 1883. True, it is claimed that there a verbal contract in regard to the purchase, made in the December previous; but in Noyes v. Kramer, 54 Iowa, 22, 6 N. W. Rep. 123, it was beld a written agreement for the sale of land did not defeat a vendor's lien, a contract to convey not being a conveyance within th.e meaning of the statute. When, therefore, the suit to enforce the vendor's lien was filed, no ofthe realty had been executed, and the conveyance to George Lyle did not affect the equity and rights of the complainant. It is argued by counsel that the suit was not brought until after the conveyance to George Lyle, because notice upon John Lyle was not had until after date of Under section 2628 of the Code. it is the filing of the petition, imd not service of notice, that creates notice to third pa,rtiesof the pendency of the action. Counsel fOr defendant also argue that a decree establishing a vendor's lien shoul<l Dot be granted, because George Lyle is not a party ,and his interestEi win be affected, and that, as he is " citizen of the same state as complainants, this court cannot take jurisdiction of hi,s rights, and should thenifote dismiss the bill. The suit was removed into this court by the defendant, who is; the party' now objecting to the jurisdiction. The evidence sho'vvs that George Lyle took/the conveyance of the property after the suit was:brought; so that he takes subject to the rights of complainants, and is not a necessary party to the suit. If it be true that he has an equiiy by reason of the fact that he has paid some part of the purchase price of the property before the conveyance to him, and before the bringing ofthis suit, there is no obstacle which would have prevented his intervening in 'this cause for the protection of his rights. The fact that he is a citizen of Iowa would not prevent his. intervening in a cause of
696
REPORTER.
which this court had already jurisdiction, when the object was to assert or protect his rights or equities in property before the court. The record shows that he is fully aware of the pendency of the suit, and he has testified therein. The present defendant is objecting to a decree establishing a vendor's lien the land, on the ground that since the ing of the suit he has conveyed the land to George Lyle, and that the latter has equities which should be protected. The latter has full knowledge of the pendency of the proceeding, but does not seek to intervene in the cause. Under these circumstances, the court cannot refuse to decree relief to complainant because George Lyle, holding under a conveyance from defendant, executed Mter this suit was. brought, might, if he chose to assert it, be able tos40w an equity growing out of payments , made upon the land before the suit was filed. Complainants are therefore entitled to a decree adjudging the amount due Mrs. Shropshire from John Lyle, and declaring Same to be a venfor the paydor's lien upon the realty, and ordering sale of such ment of the sum found due, with interest and costs.
FULLER and another
'lI.
METROPOLITAN LIFE INS. Co. and another.
«(Jirouit Oourt, 8. D. N6'/J) York. August 9, 1887.) EQUITY PRACTICE-MoTION
The court will not, upon an ordinary notice of motion to dismiss, antlcipat& the regular trial of a cause, by examininp; the pleadings and proofs, to determine whether the court has jurisdiction of the action, or whether the com· plainant is entitled to the relief sought.
TO
DISMISS.
Arnoux, Ritch
L. A. Puller, for complainants. Woodford, for defendants.
LACOMBE, J. Issue has been joined in this case by filing an answer, and the complainant has thereupon taken and completed his proof. Defendants now move to dismiss the bill "on the ground that the testimony wbolly fails to support any right to relief in this court." In other words, instead of waiting for the regular trial term, and then disposing of the case in the usual manner, defendants request that a species of semi-trial be now had under an ordinary notice of motion. The court is invited to consider the pleadings and proof as if the case were properly here for final disposition, and, if it fail to concur in the defendants' view of the law, they may, putting in such further testImony as they may be advised, proceed hereafter to try the case over again, at another term, and probably before another judge. The inconvenience of such a practice is manifest, and as it is concededly novel, defendants being unable to point to a single case, reported or unreported, in which it has been approved, this court must decline to sanction its inauguration.
