dissenting. On May 13th, 1882, the plaintiffs commenced their separate actions above against the defendant for foreclosure of two mortgages executed in 1880, notice of lis pendens being filed in each case on same day.
Previous to the commencement of these actions a judgment had been obtained in the Probate Court against the defendant, as administrator in a suit for an accounting in behalf of John W. Wright et al., for $2,165. On April 27th, 1882, a short time before these actions were commenced, the real estate in controversy was levied upon by the sheriff of Chester by virtue of the judgment above referred to. The sale, however, did not take place until June 5th, some weeks after the beginning of these actions and the notice of lis pendens. At the sale by the sheriff, the petitioner, being the surety on the administration bond of the defendant, to save himself became the purchaser, whereupon he filed the petition herein in re to be made a party to said cases, his object being to contest the mortgages of the plaintiffs on the ground of fraud, having been made, as alleged by him, to “hinder, delay, defeat and defraud creditors.” Judge Wallace refused the petition on the ground that petitioner having become the purchaser after suit commenced and the filing of the notice of lis pendens, there was no law which entitled him to be made a party.
The appeal involves the question, whether, under the circumstances, the appellant should have been made a party. It will be at once seen that at the time these actions were commenced the appellant could not have legally been made a party, because at that time he had no connection whatever with the matter in litigation. It is true he was a surety on the administration bond of the defendant, but there was no evidence that he had been *343made liable on that account, or that he was a creditor otherwise of the defendant, nor did he have any claim to the land in controversy.
One John W. Wright and others had obtained judgment in the Probate Court against the defendant, but up to the commencement of these actions and the “ notice of Us pendens,” the petitioner was a stranger to the whole matter, and any other person in the community might have been made a party as well as he. Did the fact that he became a purchaser under the circumstances stated, and before judgment in the foreclosure suits, entitle him to be made a party ? It is a general rule, that every person Avhose presence is necessary for a complete determination of the matter in controArersy, may and should be made a party before final judgment, and if such person is not summoned at the beginning of the action he may be brought in afterwards. Code, § 143, Gen. Stat.
Can a complete determination of the controversy here be made in the absence of the petitioner? Section 153 of the code (Gen. Stat.) provides that in foreclosure actions Us pendens must be filed at least twenty days before judgment, and that every purchaser or encumbrancer subsequent to such filing shall be bound by all proceedings taken thereafter to the same extent as if he Avere made a party. This would imply that in such case a complete determination of the controversy might be made without the presence of the subsequent purchaser or encumbrancer, otherAvise the provision that he should be bound to the same extent as if he had been brought in would be idle. The petitioner bought the land at sheriff’s sale after the notice of Us pendens; he then occupied the position of a subsequent purchaser, and if he has no higher rights and interests than would attach to a subsequent purchaser simply, he could not intervene. He is a volunteer, having acquired his interest during the pendency of the action and after legal information that he would be bound by the proceeding already in progress, and he would have no just or legal claim to be permitted to interject his newly and voluntarily acquired interest into the action, raising new questions and difficulties, to the delay and expense of the original parties, who, *344perhaps, but for his interference, might have had their rights promptly adjudicated.
But it seems that the petitioner bought under a judgment which was filed and levied a few days before the foreclosure suit and the filing of notice of lis pendens, though the purchase was made afterwards. Can this fact make any difference as to his rights in the premises ? We'can see no reason why it should. He is still a volunteer, with all the facts before him, and he must abide the consequences. He knew when he purchased that his rights would be subject to the suits then pending to the same extent as if he were made a party. The lis pendens informed him of this fact, and he cannot now legally complain. There is no principle of law as to parties under the old practice or provision of the code under the new which would warrant the petitioner in demanding that he should be made a party. The other sections of the code, referred to in the argument, have no> application.
The petitioner had no interest when the actions were commenced, and to have made him a party then would have been a misjoinder. His acquisition of interest after action could not re-áet to the date of the judgment under which he bought. It has been decided that the sheriff’s deed has relation back to the sale. Kingman v. Glover, 3 Rich. 27. But we find no authority which carries the title .back to the entry of the execution or the date of the judgment, nor is there foundation for the position that petitioner’s purchase created an equity having relation back to the judgment. Both his legal and equitable rights attached at the same time; this was upon his purchase. Up to that moment he had neither, and this was after the notice of lis pendens, which, under the law, made those already in court his representatives.
For the reasons given above I concur with the Circuit judge — - Judge Wallace. Let this be filed as a dissenting opinion to that, of the majority.
Appeal sustained.