concurring.
I agree with the lead opinion that Posson v. Guaranty Loan Assoc., 44 Or 106, 74 P 923 (1904), is controlling and requires the disposition that we reach. I write separately to note that the intervenors’ argument has considerable merit, and Posson may be in need of reexamination.
Common law lis pendens is a peculiarly harsh variant of constructive notice; it charges purchasers with knowledge of events which they may in fact have no way of ascertaining.1 In theory, at least, even the defendant would be unaware of a pending action before being served. If lis pendens becomes operative before the defendant is likely to know that he has been sued, a person purchasing property from the defendant could not even look to the seller as a presumptively informed source of information. I recognize that deferring the operation of lis pendens until the defendant has been served may result in an incremental number of conveyances that the doctrine was designed to prevent.2 However, I think that that risk is an acceptable cost of a more equitable rule and that the risk is offset by the incremental number of innocent purchasers who might avoid injury because of that rule.
Plaintiff argues that the common law lis pendens doctrine exists “to prevent parties to litigation from conveying * * * the subject thereof’ and that the “essence of lis pendens is not constructive notice within the limitation of that term.” See Houston v. Timmerman, 17 Or 499, 503, 21 P 1037, 11 AS 848, 4 LRA 716 (1889). However, the fact that lis pendens is not concerned primarily with notice does not mean that particular questions about the application of the doctrine must be decided in a way that minimizes the possibility of notice.
If our decision were not governed by contrary Supreme Court precedent, I would affirm the judgment for the intervenors.
Here, for example, the intervenors had no realistic ability to learn about the pending action from any public record, because the action was incorrectly indexed by the circuit court clerk.
I note, however, that this is a speculative proposition. It is at least as possible that a person who has purchased property with fraudulently obtained money will convey the property before being sued; the seller might regard it as imprudent to depend on discovering that an action has been brought and on conveying the property between the time a complaint is filed and the time of service.