We have further considered all issues involved in this case, and our final conclusion is that our former opinion is correct in so far as we held that the Continental Securities Corporation had no right to foreclose its mortgage on only an undivided one-half interest in the property, and that Wetherbee's mortgage to the bank did not include the mineral rights.
But we now think our holding that because we reversed the judgment of the district court rendered in the partition suit ordering the sale of the property to effect a partition, "the sale to the Lodwick Lumber Company automatically falls" was erroneous.
The basis of that holding was thus stated by us:
"Plaintiff is defendant in reconvention and obtained in the court below judgment for title and partition by licitation, and the property was sold to the lumber company. The legal situation in the case is the same as obtains where the defendant sells property which is in litigation, after a decision of the trial court, which is reversed on appeal. In such cases where a notice of lis pendens is recorded, the purchaser takes title subject to the action of this court on appeal."
If, in fact, Wetherbee had filed his notice of lis pendens in time and as is contemplated by the statute (Act No. 22 of 1904), then in law his rights would have been protected and the purchaser of the property at partition sale would have acquired *Page 798 it subject to those rights. But he did not file the notice in time, and for that reason lost such rights as the statute was intended to afford.
The pertinent facts stated chronologically are that the Continental Securities Corporation purchased an undivided one-half interest in the property at foreclosure sale on August 5, 1933. The executory proceeding under which it was sold was brought by the corporation, the holder and owner of the note, against Wetherbee, the maker and mortgagor. Wetherbee did not oppose the executory proceeding. After notice was served on him and the lapse of legal delays, a writ of seizure and sale was issued; the sheriff seized, advertised, and sold the property to the corporation in due and regular form.
On October 25, 1933, or two months and twenty days later, the corporation brought suit to partition the property, alleging that it owned an undivided one-half interest therein, the same having been acquired at foreclosure sale, and that Wetherbee owned the other undivided half. It was alleged that Abel Bliss held a mortgage on Wetherbee's half interest and that Bliss should be made a party to the partition proceedings in order that he might assert his rights. The corporation prayed that it and Wetherbee be recognized as owners in indivision of the property, one-half each, and that there be judgment decreeing a partition by licitation.
Wetherbee was cited and on November 16, 1933, answered. He denied that the corporation owned an interest in the land, and, assuming the position of plaintiff in reconvention, *Page 799 alleged that the entire foreclosure proceeding under which the corporation claimed to have acquired its title, and the sheriff's deed, were null, void, and of no effect for reasons specifically set up.
The filing of this answer and reconventional demand was the beginning of a contest between the corporation and Wetherbee over the title to an undivided one-half interest in the land. But Wetherbee did not then file notice of lis pendens.
On December 13, 1933, Wetherbee filed an amended answer in which he set up additional grounds for setting aside the executory proceedings, and his prayer was the same as in the original answer.
Abel Bliss, who held the vendor's mortgage on the half interest sold to Wetherbee, filed answer on November 15, in which he denied that the corporation owned any interest in the land and prayed that its demands for a partition be denied. While the suit for partition was pending, Bliss foreclosed his mortgage against Wetherbee and at the sale purchased an undivided one-half interest in the property and subsequently sold the same interest to M. Risinger, whose deed was duly recorded.
On February 6, 1934, Risinger intervened in the partition suit, alleging that he then owned an undivided one-half interest in the land, and prayed that his ownership thereof be recognized by the court and that "said Continental Securities Corporation or George W. Wetherbee (be recognized) as the owner of the other undivided one-half interest in said *Page 800 property, in indivision; that the issues in this suit be determined by the Court according to law and the evidence, as above set forth, and that a partition by licitation or in kind of said property be ordered by the Court as provided by law."
Prior to the date on which Risinger filed his intervention, the case as between the corporation and Wetherbee, involving the title to the land, was decided in favor of the corporation. Risinger's intervention was filed on February 6, and on February 12 the corporation filed a motion to reopen the case, no judgment having been signed, in order to show that since the partition suit was filed and subsequent to the date on which Wetherbee's answer was filed, Risinger had acquired title, through Bliss, to an undivided one-half interest in the land involved. On February 15 Wetherbee filed formal motion to recall the ex parte order of the judge allowing Risinger to intervene. The case was reopened for all purposes over Wetherbee's objection. Whereupon, on February 26, Wetherbee answered Risinger's intervention, setting up that Risinger's title was invalid because the foreclosure proceedings of Bliss against him, as well as the deed by the sheriff to Bliss, were null, void, and of no effect, and therefore Bliss could not convey valid title to Risinger; and he prayed for judgment "declaring that the foreclosure proceedings entitled Abel Bliss v. George W. Wetherbee, No. 11,780 on the docket of this Honorable Court, are null and void and of no effect, and that the defendant, Wetherbee, is still the owner of said premises." *Page 801
Therefore, on the date this answer to the intervention of Bliss was filed, there was issue joined between Wetherbee and Bliss involving the title to an undivided one-half interest in the land. But Wetherbee still did not file notice of lis pendens.
After Bliss intervened, claiming ownership of a half interest in the land, the corporation by formal pleading renewed its demands for a partition. All parties who claimed any interest in the land then being properly before the court, the case was again heard by the judge, and on April 23, 1934, he rendered his judgment, by which it was decreed, "That there be judgment herein in favor of plaintiff, Continental Securities Corporation, and of M. Risinger, Intervenor, and against the defendants, recognizing the said Continental Securities Corporation, and the said M. Risinger, Intervenor, to be owners in indivision, in the proportion of an undivided one-half (1/2) interest each" in the property sought to be partitioned, and further decreeing that the property be sold at public auction to effect a partition.
The judgment was against Wetherbee on all points. By his various pleadings he claimed (1) that the mortgage which he gave the bank did not include the mineral rights; (2) that the foreclosure proceeding by the corporation did not divest him of the title to an undivided one-half interest in the land; and (3) that the foreclosure proceeding by Bliss did not divest him of his other one-half *Page 802 interest. But the court decreed otherwise on all these points.
Wetherbee did not then appeal from that judgment, which was signed on April 23, 1934, nor did he, so far as the record discloses, signify his intent to appeal later. But two days after the judgment was signed, he filed notice of lis pendens, in which he set out that in his various pleadings he had claimed and that he then claimed to be the owner of the entire interest in the property.
On August 28, 1934, long after the judgment of the district court had become executory, no appeal having been taken by Wetherbee, the clerk of the district court issued his commission directing the sheriff to sell the land in accordance with the court's decree. The property was advertised for sale and was sold to the last and highest bidder on October 6, 1934. The Lodwick Lumber Company was the purchaser for the price of $82,500, which was paid in cash. Out of the proceeds the sheriff paid all costs, amounting to $987.60, leaving a balance of $81,512.40, one-half of which he paid to the Continental Securities Corporation and the other half to M. Risinger.
On April 11, 1935, Wetherbee petitioned for and was granted a devolutive appeal from the judgment decreeing that the property was owned in indivision by the Continental Securities Corporation and M. Risinger and ordering it partitioned by licitation. That was approximately eleven and one-half months after the judgment was rendered and more than six months *Page 803 after the land was sold and the proceeds distributed.
In our original opinion we held that the foreclosure proceedings brought by the Continental Securities Corporation and the sheriff's deed thereunder did not divest Wetherbee of an undivided one-half interest in this tract of land, thereby reversing the judgment of the lower court to the contrary. And we held further that because Wetherbee had filed a plea of lis pendens the sale made pursuant to the judgment ordering a partition by licitation automatically fell, the purchaser having had notice of Wetherbee's judicial averments that he was still the owner of the one-half interest claimed by the Continental Securities Corporation. In the course of our original opinion we said:
"When the defendant filed its answer to the partition suit, setting up its defense that the plaintiff did not own any interest in the property, that the foreclosure proceedings under which the plaintiff claimed were illegal, he likewise filed a notice of lis pendens, advising the public that the defendant claimed to own the property involved, and that the foreclosure proceedings and sheriff's sale under which plaintiff claimed title were invalid."
The inference to be drawn from that statement is that the notice of lis pendens was filed by Wetherbee at the time he filed his answer to the partition suit, in which he claimed that he still owned the one-half interest in the property. But the record shows, and it is now admitted by counsel for Wetherbee, that the *Page 804 notice was filed two days after the judgment was signed. So that the question before us is not what effect the filing of the notice would have had if it had been filed along with Wetherbee's pleadings, but rather what effect, if any, it had, having been filed after judgment was rendered.
Act No. 22 of 1904 reads as follows:
"Section 1. Be it enacted by the General Assembly of the State of Louisiana, That, on and after January 1, 1905, the pendency of an action in any court, State or Federal, in the State of Louisiana, affecting the title, or asserting a mortgage or lien upon immovable property, shall not be considered or construed as notice to third persons not parties to such suit, unless a notice of pendency of such action shall have been made, filed or registered, in compliance with this act.
"Section 2. Be it further enacted, etc., That the notice above referred to shall be in writing, signed by the plaintiff or his attorney, stating the name of the court in which the suit has been filed, the title and number of the suit, date of filing same, the object of the suit and the description of the property sought to be affected thereby; and said notice shall be recorded in the mortgage office of the parish where the property to be affected is situated, and shall have effect from the date of filing.
"Section 3. Be it further enacted, etc., That in the rendition of judgment in such suit or action, if judgment be given against plaintiff's claim, it shall provide for the cancellation of said notice at plaintiff's *Page 805 expense, and as part of the costs of suit."
A notice of the pendency of an action in a court affecting the title to immovable property, in order to affect third persons not parties to the suit, must be made, filed, or registered "in compliance with this act" (section 1). And section 3 of the act shows beyond question that it was contemplated that in order to have effect against third persons, the notice must be filed prior to the rendition of judgment, for it says that "in the rendition of judgment in such suit or action, if judgment be given against plaintiff's claim, it [the judgment] shall provide for the cancellation of said notice at plaintiff's expense, and as part of the costs of suit." If the notice is filed after the judgment is rendered and signed, as in this case, then the act cannot be complied with because in the rendition of the judgment the notice cannot be canceled.
If, as a matter of law, the filing of a notice of lis pendens after judgment is rendered rejecting a litigant's claim to real property protects his rights, the filing of such notice has the same effect that a suspensive appeal from the judgment would have. If counsel for Wetherbee be correct in their contention, the notice of lis pendens may conveniently be substituted for a suspensive appeal. Such, we think, was never contemplated by the lawmakers.
In view of the purpose of Act No. 22 of 1904, as explained by this court *Page 806 in several cases, it was intended by the lawmakers, we think, that the notice of lis pendens should be filed and registered in the mortgage records contemporaneously with the filing of the suit affecting title to real estate. The law that prevailed prior to the adoption of that act "made the mere filing of the suit [affecting title to real property] constructive notice to all the world that the plaintiff claimed the property, and thus charged every one, however innocent, with knowledge of that fact, with the ensuing consequence that he then purchased at his peril, even `though * * * there was no outward sign of defect in the title' of his vendor." Richardson Oil Co. v. Herndon, 157 La. 211,102 So. 310, 312.
The prior law referred to is article 2453 of the Civil Code, which reads as follows:
"The thing claimed as the property of the claimant can not be alienated, pending the action, so as to prejudice his right. If judgment be rendered for him, the sale is considered as a sale of another's property, and does not prevent him from being put in possession by virtue of such judgment."
But now, the mere filing of a suit affecting title to real property is not notice "to all the world" that plaintiff claims the property. Another method of giving such notice has been adopted, which is the filing of notice of lis pendens and having the same registered in the mortgage records of the parish as provided by the act of 1904. The filing and registering of this notice subserves precisely the same *Page 807 purpose as did the filing of the suit under the prior law.
In Wells et al. v. Blackman, 117 La. 359, 41 So. 648, 649, we said with reference to the effect of Act No. 22 of 1904:
"Said Act No. 22 has brought no change in our law, except that, whereas, formerly, third persons dealing with property involved in litigation had to take notice of the pendency of the litigation without registry (article 2453, Rev.Civ. Code), now, under said act, they are not required to do so, unless the notice prescribed by the act has been duly recorded."
To the same effect are the cases of State ex rel. Metropolitan Land Co. v. Recorder of Mortgages, 166 La. 271, 117 So. 145; Succession of Thomas, 114 La. 693, 38 So. 519; Harang et al. v. Golden Ranch Land Drainage Co., 151 La. 702, 92 So. 305; Roussel v. Realty Co., 137 La. 616, 69 So. 27; Richardson Oil Co. v. Herndon, supra.
It is our opinion that there was no compliance with the act in this case, and it follows that the property was sold without notice to third persons of Wetherbee's claims.
It is argued that the purchaser of the property took it subject to the final results of the litigation between Wetherbee on the one side and the corporation and Bliss on the other, and article2453 of the Civil Code is cited in support of it. If the codal provision stood alone, the argument would be sound, because under its provisions the filing of the pleadings alone was "notice to the world" that he *Page 808 was claiming the property, and a purchaser, however innocent otherwise, was bound by such notice. But that is not true now. Under the precise language of Act No. 22 of 1904, the pendency of an action "affecting the title * * * shall not be considered or construed as notice to third persons not parties to such suit." Under the act the only effective notice is the filing of the notice of lis pendens, and its registry in the mortgage records. As said by the court in Wells v. Blackman, supra, formerly third persons had to take notice of such suits, but now they do not.
We held on original hearing that Wetherbee was not divested of his title to an undivided one-half interest in the land by the foreclosure proceedings brought by the Continental Securities Corporation. In the brief on rehearing, counsel for Wetherbee cite article 2452 of the Civil Code, which says that "the sale of a thing belonging to another person is null." Their argument is that inasmuch as it was held on appeal that Wetherbee was not divested of his title, the partition sale is null because it was a sale of his property. The argument is not sound. This was a judicial sale made in pursuance of an executory judgment decreeing that Wetherbee had no title, and the sale was made without legal notice to third persons of Wetherbee's claim. If he had given legal notice of his claim to all third persons, then article 2452 of the Code would apply and the sale would be void. But as there was no such notice, the sale pursuant to the judgment cannot be considered as "the sale of a thing belonging *Page 809 to another" within the meaning of the Code, because at the time the sale was made the judgment decreeing that Wetherbee had no title was in effect and was binding on him, and by it he remained bound until it was reversed on appeal. If there had been no judicial sale of the property in the meantime, the effect of the reversal of the judgment would be to restore him to the ownership of the land. But he permitted the property to be sold at public auction without notice to third parties, long before the judgment was reversed.
A sale under such circumstances cannot be considered as the sale of a thing belonging to another. And the purchaser did not take the property subject to the final results of the litigation. These points were discussed at length by this court in the case of Harang et al. v. Golden Ranch Land Co., 151 La. 702, at pages 703, 704, 92 So. 305, where the court said:
"Prior to the passage of Act No. 22 of 1904, every one was charged with notice of the pendency of a suit affecting real property, and a purchaser after its filing acquired subject tothe result of such litigation, though not actually a partythereto. Such a sale was considered as the sale of the propertyof another and void, as to the successful litigant. R.C.C. 2453, Lacassagne v. Chapuis, 144 U.S. 119, 12 S.Ct. 659, 36 L.Ed. 368. However, this act (No. 22 of 1904), while not an express amendment of that article of the Code, had the effect of making the latter inoperative, except in those cases *Page 810 where the act was complied with. [Italics ours.] * * *
"Section 3 provides for the cancellation of the notice from the record at plaintiff's expense, if unsuccessful, and section 4 repeals all laws in conflict with the act.
"The undoubted purpose of this law was to protect purchasers of real property which might be involved in litigation, and to relieve them of the former effects, except when the notice was recorded. But for its plain language and purpose, that the pendency of such litigation `shall not be considered or construed as notice to third persons not parties to such suit,' it might be argued that purchasers from a defendant could be said to be parties privy to the title litigated with him and bound by the judgment; but we think nothing is left for interpretation, and the act must be enforced as written. Roussel v. Realty Co., 137 La. [616], 625, 69 So. 27. Formerly, the Code expressly subjectedsuch purchasers to the results of the litigation, but the statutehas clearly limited it to those cases where notice has beenrecorded in compliance therewith." (Latter Italics ours.)
In Jefferson v. Gamm et al., 150 La. 372, 90 So. 682, 684, it was said that the doctrine is now well settled "that the reversal of a judgment on a devolutive appeal does not affect the validity of a sale that was made in execution of the judgment after it had become executory; the only right or remedy of the party aggrieved in such case being to claim *Page 811 the proceeds of the sale." Citing numerous cases.
It is argued that neither that case nor any of those cited in support of the doctrine as above announced is applicable to a case like this because they relate to the execution of money judgments, and not to the execution of judgments where title to property is originally contested by the litigants. There is a distinction, of course, but the doctrine is applicable to a case where the action involves title to real property and the claimant fails to comply with the act of 1904 by giving notice of the pendency of the action, which is the case here. All judgments, whether for money or a thing, become executory in ten days after signing if not appealed from suspensively (Caspari v. Osborne,169 La. 983, 126 So. 500), and if not appealed from suspensively within the delays allowed by law, an appeal taken subsequently, that is, a devolutive appeal, does not stay the execution of a judgment. C.P. art. 578.
At the time the partition suit was tried in the district court and the judgment rendered and signed, all claimants to any interest in the land involved were in court as parties. Under the circumstances shown to exist, we think the sale made pursuant to the judgment was valid and conferred good title in the Lodwick Lumber Company. It follows that Wetherbee's rights as against either the Continental Securities Corporation or Bliss are relegated to the proceeds of the sale. *Page 812
In our original opinion we held that the mortgage which Wetherbee gave the bank did not include his mineral rights. We adhere to that holding. But that question, like the question of title to the land, was litigated before the court below. The judgment was against Wetherbee on all points. For the reasons stated herein, our reversal of the judgment did not restore his title to the land, and for the same reasons it did not restore to him the mineral rights. He lost title to both the land and the mineral rights.
For the reasons assigned, our original opinion is reinstated, except as to the view therein expressed that the title acquired by the Lodwick Lumber Company at the partition sale was invalid, it being our opinion now that its title is valid. Right is reserved to Wetherbee to apply for a rehearing.
O'NIELL, C.J., dissents on the ground that the decision in this case is contrary to the decision in Richardson Oil Co. v. Herndon, 157 La. 211, 102 So. 310.
On Second Application for Rehearing.