dissenting. I am unable to concur in the conclusion reached by the majority of this court. The property at the time of the sale by Dudley to Cofield and his associates was in the custody of the law, being bound by the levy of the attachment. They were then purchasers with notice and chargeable with every fact that the record disclosed at the date of their purchase. Davis v. Chrisham, 15 Gratt. 41; Rey v. Doe, 2 Blackf. 258.
He who buys property while it is in the custody of the law and subject to a decree or judgment that may be made or entertained by a court in the enforcement of a specific lien is not a favored purchaser, nor is he entitled to the most benignant consideration of a court of equity. Anciently, such purchases were regarded as void, but this harsh doctrine has yielded to the softening influences of time, and the later decisions, instead of holding that a conveyance is annulled by the pendency of an action, simply affirm that the property purchased shall be held subject to the rights of the parties in litigation. Julor’s Lessees v. Harvey, 11 Md. 524; Meux v. Anthony, 6 Eng. 422; Whiting v. Bebee, 7 id. 566; Harrington v. Slade, 22 Barb. 166. At the time of the purchase the demand of the attaching plaintiffs amounted to something over 82,620.85. This *407claim was evidenced by the record, and Cofield and Steck were bound to take notice of it when they bought the property. The defense set up to avoid the payment of this sum is, that after the purchase the attaching creditors increased their demand so that ultimately they obtained judgment for $5,000. There is nothing in the record to show that, at the time the amendment was made, the plaintiffs had any knowledge of the alienation of this property. A fraud at that time could not have been meditated against Steck and Cofield because their connection with the property was not then known. Nor is there any thing in the record to show that the claim of the Tiltons was other than honest and just in every respect. I take it to be well settled that a plaintiff can proceed in the suit without noticing the alienation, and the decree he obtains will bind the purchaser. If the plaintiff makes the purchaser a party, the alienee is bound by the previous proceedings in the suit before he was made a party, and he comes before the court in the same plight and condition as the former party, and is bound by his acts and may be subject to the cost of the proceedings from the beginning of the suit. Harrington v. Slade, supra. I am willing to admit that the purchaser should not be chargeable with an amount greater than that claimed by the plaintiffs at the date of the alienation, with interest, but I am not ready to hold that the mere increase of their demand, when honestly made, forfeits their right to the whole claim against the property seized. Such a doctrine as this would practically arrest and preclude all amendments of the pleadings pending the progress of a case, and what is more, would devolve on the plaintiff a duty never yet recognized or enjoined, namely, that of keeping trace of all alienations made by a defendant pendente lite. Green v. Cole, 13 Ired. 425, 430. The forfeiture, if it can be justified on any principle, must be that of punishment for a fraud attempted or committed. In this case, I am unable to discover any fraud in the amendment made, for the reason that the increase of the claim was just, and that the plaintiffs were ignorant of any rights acquired by Cofield or *408his associates, nor do I think that Cofield and company were misled, for it nowhere appears that either of these parties felt enough of interest in the suit prior to their purchase to inquire and ascertain the amount of Tiltons’ demand. WTfitsitt swears that he bought the property to make money out of it; that he had heard the controversy between Dudley and Tilton canvassed, and the general impression was that it would not amount to much. Cofield had heard that there was a judgment against Dudley for about $2,500. Witter swears that Steck told him that the attachment could not be sustained. What Steck knew, or tried to know, about the amount of indebtedness does not appear, as he was not examined. They were all anxious, however, to buy the property. A fair inference from all the testimony is, that these gentlemen took advantage of Dudley’s embarrassed circumstances to buy the property cheap, trusting to Steck’s opinion that the attachment could not be sustained. A speculation promising rich profits was in sight, and the eagerness for trade deadened the caution that would have prompted unimpassioned men to make inquiries as to the status of the property. It is difficult to say that these gentlemen were misled when not one of them, so far as the evidence shows, ever deigned to make an inquiry at the clerk’s office, or to examine a paper in the case prior to their investment. I am aware that, as between attaching creditors, it has been held that an increase of the demand of the first creditor will have the effect to dissolve his attachment as to the subsequent creditors. The ground on which some of these decisions is made to rest is, that the subsequent attaching creditor is entitled to the excess, if any, that remains after satisfying the first claim, and that to permit the first creditor to swell this original claim by adding thereto other demands, might lead to the absorption by him of the whole property. With all deference to the courts that have pronounced these decisions, I must say that such a doctrine can only be sustained on the ground that such increase is made with a fraudulent intent, and with a view to secure a dishonest advantage ; *409and that as a punishment for such fraud the attachment is dissolved, and the preference given by the law is destroyed ; were it otherwise, the doctrine would uproot the whole power of amendment; a power essential to the administration of justice, and not infrequently used, even when it does affect existing rights. Green v. Cole, supra, 430; Cobargo v. Segar, 17 Penn. St. 514. Every man who buys property in custodies legis should, as against an honest creditor having a lien upon it, be understood to act with a full knowledge that the courts can, and, in cases deemed proper by them, will amend not only the pleadings, but their records and process as far as they can do so consistently with truth.
A most diligent research has not been rewarded by the discovery of a case that applies the doctrine announced by the majority of this court to a subsequent purchaser. Until this time such a purchaser has never been regarded as a favored suitor in any court. Thus in Scott v. McMillen, 1 Litt. 308, the court says: “Here the property gives jurisdiction to the court; the right of property is in contest, and during the pendency of such a contest, no transfer of the property by the debtor can be admitted to produce any prejudicial effect on the complainant’s demand.” In Murray v. Lylburn, 2 Johns. Ch. Rep., Chancellor Kent said: “ There is no principle better established than that the purchase of the subject-matter in controversy, pendente lite, does not vary the rights of the parties in that suit, who are not to receive any prejudice from the alienation.” “He who purchases during the pendency of a suit [is bound,” says Sir William Grit ant, “by the decree that may be made against the person from whom he derives title. The litigating parties are exempt from the necessity of taking notice of a title so acquired. The rule may sometimes operate with hardship, but general convenience requires it.” The Bishop of Winchester v. Payne, 11 Vesey, 194; Osborn v. Bank, 9 Wheat. 733. Numerous other authorities might be cited to the same effect, but it is unnecessary ; see, how*410ever, the case of Whiting v. Bebee, 7 English, 565, and the cases there cited.
There is another view of this case which strikes me as being entitled to more than ordinary consideration. The power of attorney from Dudley to Chever, who makes the deed to the complainants, is not under seal.
In Hayward v. Haswell, 6 Adolph. & Ellis, 265, it was held that where an agent or attorney had no properly authenticated power to execute a deed of conveyance, but his authority was sufficiently witnessed to authorize him to execute an agreement to make such conveyance, it was held to operate merely as an executory agreement. We then have the complainants Steck, Cofield, Whitsill and Witter, clothed simply with an executory contract, or in other words, with a contract for a conveyance. To perfect their title, they must either voluntarily obtain a legal conveyance, or bring their bill for specific performance. To this proceeding the Tiltons would have to be made parties. Now, if the complainants whose title, if they have any, is merely equitable, seek to compel Tiltons to convey to them the legal estate, would not equity enjoin upon them the payment of the amount which the record disclosed at the date of their ineffectual purchase from Moffatt ? In Villa v. Rodriguez, 12 Wall. 338, it is held that a party holding under an executory contract like this is not a bona fide purchaser. That the doctrine only applies where the legal title has been conveyed and the purchase-money fully paid.
In conclusion, let me recapitulate the facts. We have the complainants clothed simply with a contract for a conveyance. We have a suit pending where the indebtedness claimed amounted to $2,620.85, and a levy by virtue of attachment on the property in question. We have the further fact that the complainants in this bill were informed by the record of the amount of Tiltons’ demand, and they were bound to know that in the progress of the trial this indebtedness might, or probably would, ripen into a judgment. We have the further fact that the complainants *411bought this property for speculative purposes, and doubtless in fixing the price they were willing to pay for it, considered that the plaintiffs in the attachment suit might possibly recover a judgment for $2,620.85, together with interest. To this claim then they were in no sense innocent purchasers. They bought with their eyes wide open, and should not now be permitted to close them against the performance of a duty which equity and good conscience enjoins upon men thus situated. This would be simple justice, and the conscience of every man, be he jurist or layman, could not but approve such a determination of the issue. It would seem to me, therefore, that the decree of the court below ought to be so far modified, as to require the Tiltons to execute to Cofield and the other complainants a quit-claim deed for this property upon their paying to them the sum of $2,620.85, together with interest at the rate of ten per cent to the day when said money is paid.
Affirmed.