dissenting, with whom TAYLOR, District Judge, joins.
I must dissent.
I believe the approach taken by the majority in this case is erroneous and ill-advised. But of greater concern to me is the injustice that results from the majority’s gymnastics in legalese and judicial repeal of § 1-6-108, W.S.1977. In order to appreciate the miscarriage of justice which results, facts in addition to those stated in the majority’s opinion must be considered; and they speak loudly. As a result, I feel it necessary to provide a separate account of the history involved here.
PACTS
On October 1, 1976, Fred M. Meyer and Peter T. Scifo executed a partnership agreement. Under the terms of this agreement a Colorado general partnership, known as Horseshoe Creek Limited (Horseshoe), was created.
This partnership, on November 9, 1976, entered into an agreement to purchase considerable ranch property which was located in Platte County, Wyoming and serves as the subject matter of this suit. The agreement was in effect a contract for deed and Was executed by Fred Meyer, on behalf of Horseshoe, and James Centlivre, the owner of the land.
On February 4, 1977, Fred Meyer and Peter Scifo sold their respective interests in Horseshoe to Car-ro, Inc. and Taras, Inc. Fred Meyer testified concerning these corporations on direct examination as follows:
“Q. And what kind of entities were those?
“A. Those were two Colorado corporations.
“Q. Who were the shareholders in those corporations?
“A. Mine and my bother’s [sic] children were shareholders of Car-ro, Inc., and the Scifo children — I call them children. There were a couple of them were of age — were the partners of Taras, Inc., or the shareholders of Taras, Inc., excuse me.
“Q. Who were the officers?
“A. My wife, my brother, my brother’s wife, were the officers of Car-ro, Inc., and Peter Scifo and I don’t know which of the other Scifos, were officers of Ta-ras, Inc. I believe his sister was one of the officers.”
The following was an amendment to the partnership agreement executed simultaneously with the change of partners:
“This Agreement is made and entered into this 4th day of February, 1977, by and among Fred M. Meyer (hereinafter called ‘Meyer’), Peter T. Scifo (hereinafter called ‘Scifo’), Car-Ro, Inc., a Colorado corporation, (hereinafter called ‘Car-Ro’), Taras, Inc., a Colorado corporation, (hereinafter called ‘Taras’) and Horseshoe Creek Limited, a general partnership, (hereinafter called ‘Partnership’).
“WHEREAS, Meyer and Scifo are desirous of withdrawing as partners in the Partnership and Car-Ro and Taras are desirous of becoming partners.
*1150“NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
$ * ‡ * * *
“5. The said new partners specifically agree to all terms and conditions of that certain Partnership Agreement dated October 1, 1976.
“IN WITNESS WHEREOF, the parties hereto have hereunto set their hands at Denver, Colorado, the day and year first above written.
“/s/ Fred M. Mever
“Fred M. Meyer
“/s/ Peter T. Scifo
“Peter T. Scifo
“CAR-RO, INC.
“Bv /s/ Carolyn J. Mever
“President
“TARAS, INC.
“Bv /s/ Peter T. Scifo
“President
“HORSESHOE CREEK LIMITED
“Bv /s/ Fred M. Mever”
Accompanying the amendment was the following affidavit:
“KNOW ALL MEN BY THESE PRESENTS:
“That the undersigned have joined together this 4th day of February, 1977, to change the members of that co-partnership known as Horseshoe Creek Limited, a general partnership, for the purpose of owning that certain land described in Exhibit A attached hereto.
“That the full names and addresses of the two partners who are no longer members of or represented by the same name of Horseshoe Creek Limited are:
“Name Address
“Fred M. Meyer R. R. # 1 Bennett, Colorado 80102
“Peter T. Scifo 100 Main Street Parker, Colorado 80134
“That the full names and addresses of the parties who henceforth are the partners and who are represented by the same name of Horseshoe Creek Limited, a general partnership, are as follows:
“Name Address
“Car-Ro, Inc. R. R. # 1 Bennett, Colorado 80102
“Taras, Inc. 100 Main Street Parker, Colorado 80134
“The said two affiants, to wit: Taras, Inc., a Colorado corporation, and Car-Ro, Inc., a Colorado corporation, are the only corporations, persons or other entities carrying on said business and trade in partnership under the name and style aforesaid.
“IN WITNESS WHEREOF, the parties hereto have affixed their signatures.
“/s/ Fred M. Mever
“Fred M. Meyer
“/s/ Peter T. Scifo
“Peter T. Scifo
“CAR-RO, INC.
“Bv /s/ Carolyn J. Mever
“President
“ATTEST:
“/s/ Rodene G. Mever sec.
“Secretary
“TARAS, INC.
“Bv /s/ Peter T. Scifo
“President
“ATTEST:
“/s/ Steve T. Scifo sec.
“Secretary
The certain lands described in the attachment are those in dispute in this ease.
On August 4, 1977, Meyer, purporting to be acting as president of Horseshoe, agreed to assign the Centlivre contract to James Jackson as an individual. This assignment was as security for a loan. Then on December 17, 1977, in connection with a construction project in Indiana which Jackson, Inc. had undertaken for Horseshoe among others, Horseshoe pledged the Centlivre contract for deed to Jackson, Inc. as security. Peter T. Scifo signed on behalf of Horseshoe as a general partner. Fred Meyer also signed the agreement as president of Meyer Hog Farms, Inc. — a guarantor under the contract. The signature of James Jackson appears on the document in his capacity as president of Jackson, Inc.
*1151On June 16, 1978, Jackson, Inc., initiated a lawsuit against Horseshoe in the district court in Platte County, Wyoming.1 The complaint alleged that Horseshoe was still indebted to Jackson, Inc., that the partnership was insolvent, and that it had refused to assign the Centlivre contract for deed pursuant to the December 17, 1977 agreement. The plaintiff prayed for specific performance compelling the assignment of the contract.
On July 7, 1978, Horseshoe moved for a dismissal claiming that the complaint failed to state a claim upon which relief could be granted and that service of process was insufficient. On August 7, 1978, Horseshoe filed a second motion to dismiss in which it contended that the Wyoming court lacked subject-matter jurisdiction. On August 24, 1978, the defendant offered an amended motion to dismiss which contained two additional bases for a dismissal: (1) the court lacked jurisdiction over the person of the defendant, and (2) venue was improper.
A hearing was held on October 17, 1978 on defendant’s motions, at which time it was stipulated that Jackson, Inc. was a foreign corporation and that Horseshoe was a Colorado partnership. Horseshoe filed a brief supporting its motions on October 30, 1978; the thrust of its argument being forum non conveniens. On October 31, 1978, Jackson, Inc. filed its brief in opposition to the motions; its contention was that the only issue concerned the district court’s subject-matter jurisdiction and in connection therewith it said:
“The only conclusion that can be reached in this matter is that the Court has jurisdiction over the subject matter of the action and that it has jurisdiction over the person of the Defendant.
“The question then arises as to whether or not because the Defendant has argued that this is an action for specific performance of a contract, does this change the general rules as above recited. It would appear that an action for specific performance even though it relates to real property is in personum [sic] in so far as it seeks to compel performance by the Defendant. Where real property is involved such action is in rem only in so far as it seeks action by the Court directly upon or against the property. Of course, this is not true in our case. As against a defendant who is subject to the jurisdiction and control of the Court so that a judgment can be enforced against his person the nature of the action is in per-sonum [sic] and with respect to venue, transitory rather than local. Otis Oil & Gas Corp. vs. Maier [74 Wyo. 137], 284 P.2d 653 (1955) (See also 71 Am.Jur.2d, Specific Performance, 180 (1973) [.)]”
Defendant then filed a second memorandum supporting its motion as well as an affidavit of Fred Meyer describing the extent of Horseshoe’s relationship with Jackson, Inc. Horseshoe argued in its memorandum:
“An action for specific performance of a contract, even though it relates to real property, is in personam insofar as it is sought to compel performance by the defendant. Otis Oil and Gas Corp. vs. Maier, 74 Wyoming 137, 284 P. 2nd 653.
“The general rule is that where a suit for specific performance of a contract involving land seeks only in personam relief against the defendant, the action is transitory in nature and that such transitory action can be maintained in any jurisdiction where service on the defendant could be obtained. An action seeking specific performance of alleged contractural [sic] obligations to pay royalties and initiate exploratory drilling on a mining lease was transitory. Cobb vs. National Lead Company, (D.C.Ark.) 215 F.Supp. 48, 63 A.L.R. 2nd 412(7).
“In Hearst vs. Kuykendall, 16 Tex. 327, the Court considered the applicability of a statute requiring that actions for the recovery of land be brought in the county *1152in which it was situate. In holding that an action for specific performance was not within the statute, the Court stated:
“ ‘An action for the recovery of lands has a well known and definite signification, and means an action of ejectment, trespass to try title, or a suit to recover the land itself whereas the object of a suit by vendee, for specific performance, is not the recovery of the land itself, but to enforce a contract for its sale, and the delivery of a deed or title to the land * * * to secure title deeds to land is one thing; to recover the land itself is another; and as the formers generally and mainly the object of a suit by vendee for the specific performance of a contract for the sale of land, it is apparent that the action does not come within the scope of a provision, the operation of which is restricted to suits for the recovery of land.’
“and in Morgan vs. Bell, 3 Wash. 554, 28 P. 925, the Court held that an action by the vendee against the vendor in a contract for the sale of real property was transitory. The Court stated in part:
“ ‘The title to this land was not in dispute and could not be affected by the decree of the Court under the pleadings. It is true that the Court could decree a specific performance of the contract under the allegations of the complaint, but it would be a decree affecting the parties to the action personally. It would not determine any question affecting the title, in the sense in which the word “title” is evidently employed in the statute.’ ”
On November 13,1978, the Platte County District Court dismissed Jackson, Inc.’s complaint. Jackson, Inc. filed a notice of appeal; however, the appeal was dismissed by stipulation on December 20, 1978.
On December 6, 1978, Jackson, Inc. filed suit against Horseshoe in the United States District Court, Northern District of Indiana, South Bend Division. In its complaint it alleged:
“2. That the Defendant, Horseshoe Creek Limited, is the purchaser in that certain Contract for Deed dated November 9,1976, entered into with James F. K. Centlivre, as seller, affecting that certain real property situated in Platte County, Wyoming, as therein described. * * * “3. That on or about August 4,1977, the Defendant, Horseshoe Creek Limited by and through Fred M. Meyer made and entered into an agreement with the Plaintiff by the terms and provisions of which agreement the Defendant agreed to assign to the Plaintiff as security for a loan, the Defendant’s interest in the Contract for Deed * * *.
“4. That as provided in the seventh numbered provision of the agreement entered into on December 17, 1977, * * * the Defendant Horseshoe Creed [sic] Limited, agreed ... ‘to cause the following interests to be assigned to Jackson, its assigns or nominee, as Jackson may in writing direct:
“ ‘D. A security interest in a certain Contract for Deed entered into on November 9, 1976, between James F. K. Centlivre and Horseshoe Creed [sic] Limited of certain property from James F. K. Centlivre located in Platt [sic] County, Wyoming.’
“5. That despite repeated requests by the Plaintiff, the Defendant, Horseshoe Creek Limited has refused to make and execute an assignment of its interest in said Contract for Deed to the Plaintiff and still fails and refuses to make and execute such an assignment.
“6. That Plaintiff is informed and believes that the Defendant, Horseshoe Creek Limited is without funds or other property from which Plaintiff may be paid the sums due and owing to it and Plaintiff will suffer great damages or irreparable injury if said Defendant fails to assign said Contract for Deed to the Plaintiff and that Plaintiff has no adequate legal remedy.”
Simultaneously with initiating the action in Indiana, Jackson, Inc., pursuant to § 1-6-108, W.S.1977, filed in the office of *1153the Platte County Clerk’s Office the following notice:
“NOTICE OF PENDENCY OF ACTION
“NOTICE IS HEREBY GIVEN that James S. Jackson Co., Inc., an Indiana Corporation, has filed an action against Horseshoe Creek Limited, a Colorado General Partnership, and Meyer Hog Farms, Inc., a Colorado Corporation, in the United States District Court of the Northern District of Indiana, South Bend Division, Civil Action # S-78-0271, the object of which action is to compel the Defendant to assign unto the Plaintiff its right, title and interest in and to a Contract for Deed wherein Defendant is purchasing the real property described on Exhibit A hereto annexed and by this reference made a part hereof.
“Dated this 6th day of December, 1978.” The attached Exhibit A described the land involved in the Centlivre contract.
Meanwhile Horseshoe had leased the property covered by the Centlivre contract to James Ludvik, a Colorado resident. Commencing in November of 1978, Ludvik began negotiating with Horseshoe for the acquisition of the Centlivre contract. He testified to the extent of his knowledge concerning the legal actions taken by Jackson, Inc. prior to his purchase as follows:
“Q. So, then, when you got the title policy in January, on or about the 17th, of 1979, then you found out that there was an action pending in the Indiana Court?
“A. That is correct.
“Q. Did you ever know anything about the pendancy [sic] of the action by the filing of the notice of pendancy [sic] of action in connection with the suit here in the Eighth Judicial District? In other words, there have been two notices filed?
“A. You asked me about three different questions. Would you clarify the question?
“Q. Did you know at the time that you were negotiating that Horseshoe Creek had been sued in this Court?
“A. I knew that — I knew that Horseshoe Creek had been sued in this Court.
“Q. And did you know that the relief which was being sought as shown by the notice which was filed was to acquire an assignment of the contract?
“A. I knew that the suit that was litigated in this Court had been dismissed because of lack of judgment.
“Q. But—
“A. Or lack of jurisdiction.
“Q. But the thing was under appeal until December the 20th, and what I am saying is did you know that? You knew that there was a suit pending?
“A. And I knew that the appeal was dismissed.
“Q. After it was dismissed on the 20th of December. I am talking about in November. That’s when you said you started negotiations.
“Q. [A] I didn’t know all of the involvement of the title until January 17th when I received this. I knew that an action had been filed, and I knew that it was against Horseshoe Creek, which we call 1 for clarification, which is the general partnership of two individuals. However, I could see no correlation with the company that I was dealing with, which was Horseshoe Creek, the partnership of two corporations.
* ⅝: * * sfs *
“Q. Now, you say that the Indiana suit, which you knew about, was a suit against Horseshoe Creek Limited which was a partnership composed of Fred Meyer and Peter Scifo; is that correct?
“A. That’s correct.
“Q. And that made a difference to you rather than a partnership composed of two corporations, Taras, Inc., and Car-ro, Inc.?
“A. Most definitely.
“Q. Why did it?
“A. They are two different entities.
“Q. What difference does it make if they are two different entities?
“A. Am I not a separate entity than Horseshoe Creek, the partnership of two corporations, but my rights are under the same assignment.
*1154“Q. The partnership agreements which are entered into here and which are amended as entered into here, and the affidavits affixed to them show there was only one partnership. It says Horseshoe Creek Limited, a general partnership. Two men withdrew and two corporations replaced them in the same partnership. Now, what I am asking you is what difference did it make to you who was composing the partnership at the time of the Indiana case?
“A. It made a definite difference.
“Q. You were interested only in the contract, though, weren’t you?
“A. I was interested in the pendancy, [sic] and if the pendancy [sic] was filed against the corporation of two individuals or the partnership of two corporations, and it was the pendancy [sic] was filed against the partnership of two individuals. I was dealing with the partnership of — composed of two corporations. That made a lot of difference. It is very imperative to make that distinction.
“Q. Didn’t Horseshoe Creek Limited own the contract?
“A. Horseshoe Creek, a parthership [sic] of two corporations owned the contract for deed when I purchased.
* * * * * *
“Q. Now, when you obtained the January 17th title insurance commitment, which is Joint Exhibit 8, the first part of that, you testified before the noon recess when Mr. Wagner was examing [sic] you that you read this before you entered into the agreement to purchase the assignment of contract?
“A. What date, sir?
“Q. January the 17th?
“A. Yes.
“Q. I call your attention — now you have got it, I think, the January the 17th one?
“A. Yes.
“Q. I call your attention to paragraph 11 on about the fifth page. Paragraph 11 says, and I quote:
“ ‘This policy does not insure against loss or damages resulting from a Judgment that might be entered in the Suit pending Civil Action # S-78-0271 as set out in Notice of Pendency of Action, recorded December 6, 1978, in Book 218, page 509, Records of Platte County, Wyoming, against Horseshoe Creek Limited, a Colorado General Partnership, et al.’
“You read that, and you knew that that provision was in there, did you not?
“A. Yes.
******
“Q. So you knew there was an action going on, and you knew that the object of the action was to compel the assignment of the same contract which you obtained an assignment of; is that right?
“A. That is correct.
“Q. And you knew that prior to the time that you made your purchase of the assignment from Horseshoe Creek Limited?
“A. Yes. * * *”
On January 23, 1979, an assignment of the Centlivre contract was formally executed by Horseshoe and Ludvik became the partnership’s assignee.
A compromise and settlement agreement was entered into and filed in the Indiana federal court on August 29, 1979. The agreement provided:
“A. Defendants, Horseshoe Creek Limited and Fred M. Meyer, agree to pay Plaintiff the sum of One Hundred Seventy-five Thousand Dollars ($175,000.00) on or before December 15, 1979.
******
“C. Plaintiff, upon payment of the aforementioned One Hundred Seventy-five Thousand Dollars ($175,000.00) agrees that all claims, demands, rights and causes of action that it has or may have against the Defendants as set forth in its lawsuit will be satisfied, discharged and settled and it will dismiss its lawsuit with prejudice against the Defendants. “D. If the Defendants fail to pay to Plaintiffs the aforementioned One Hundred Seventy-five Thousand Dollars ($175,000.00) when due, the Defendants agree and consent to this Court entering *1155a judgement against them, jointly and severally, in the amount of Three Hundred Fifty-two Thousand Ten Dollars and Fifty-four Cents ($352,010.54) with interest at ten percent (10%) per annum from March 30, 1979, to date of judgement, all without relief from valuation or appraisment [sic] laws and with attroney [sic] fees in the amount of Fifteen Thousand Dollars ($15,000.00), together with a decree requiring Horseshoe Creek Limited to assign to Plaintiff a security interest in that certain deed dated November 9, 1976, between James F. K. Centlivre and Horseshoe Creek Limited, of real property located in Platte County, Wyoming, as security for the money judgement entered by the Court. A copy of this agreement shall be filed with the Court and the parties are agreed that it shall form the basis of a judgement to be entered in this action in the event the Defendants fail to pay Plaintiff as agreed upon.”
By order of the United States District Court, Northern District of Indiana, South Bend Division, the settlement agreement was approved.
Upon the failure of Horseshoe to pay Jackson, Inc. the sum of $175,000.00, Jackson, Inc. moved the U.S. District Court for an entry of judgment ordering Horseshoe to assign the Centlivre contract for deed in accordance with the settlement agreement. On December 17, 1979, the federal court granted Jackson, Inc.’s motion and ordered Horseshoe to execute the assignment within ten days.
On January 2, 1980, after being informed of Horseshoe’s failure to comply with the court’s order, the federal court ordered the United States Marshall of the Northern District of Indiana to execute, acknowledge and deliver to Jackson, Inc. an assignment of Horseshoe’s interest in the Centlivre contract.2 Pursuant thereto, the following was executed on January 4, 1980:
“ASSIGNMENT FOR CONTRACT OF DEED
“The undersigned United States Marshall of the United States District Court for the Northern District of Indiana, pursuant to the Order of Allen Sharp, Judge, United States District Court, does hereby assign, transfer, set over and quit claim to James S. Jackson Co., Inc. an Indiana corporation, Assignee, the Contract for Deed of Horseshoe Creek Limited with James F. K. Centlivre dated November 9, 1976, a copy of said Contract for Deed attached hereto and made a part thereof, which Contract for Deed was for the purchase by Horseshoe Creek Limited from James F. K. Centlivre of the following real estate located in Platte County, Wyoming, to-wit:
[description of the land in question] “including all rights due or to become due under the Contract for Deed, with power to enforce in its own name or in the name of Horseshoe Creek Limited any and all *1156rights given to Horseshoe Creek Limited thereunder or which may be deemed necessary by Assignee to enforce the terms thereof.
“This Assignment is to secure a judgment entered against Horseshoe Creek Limited in the United States District Court, Northern District of Indiana, South Bend Division, Cause No. S-78-0271 on December 17, 1979, in the amount of Three Hundred Ninety Two Thousand Two Hundred Seventy Seven and 82/100 Dollars ($392,277.82), and Assignee has a security interest in the real estate described herein until said judgment has been fully paid and satisfied.
“This Assignment shall in no way be deemed the exclusive remedy of Assignee to collect the above judgment, but shall be deemed an additional remedy along with any other remedy available at law or equity.”
Meanwhile on October 12, 1979, this action had been initiated by Ludvik. In his complaint against Jackson, Inc., he listed three causes of action. First, he contended that the notice of pendency of action affected title to the property he claimed under the Centlivre contract and that the title should be quieted in him. In his second and third causes of action he alleged that:
“The Plaintiff, in recording the Notice of Pendency of Action, acted maliciously and the filing was to harass the Plaintiff and his predecessor in title, Horseshoe Creek Limited and for the further purpose of applying unlawful and unjustified pressure for the payment of additional sums of money which are not owed by Plaintiff.”
“By reason of these facts Plaintiff has been damaged in the sum of $30,000.00 and will suffer damages in the future, the exact amount of which cannot now be ascertained.”
“The Defendant acted maliciously and for the purpose of extorting additional sums of money from Plaintiff and Horseshoe Creek Limited and by reason thereof Plaintiff should be awarded punitive damages in the amount of $10,000.00.”
Wherefore Ludvik prayed for a judgment providing:
“1. That title be quieted in the Plaintiff and against the Defendant and that the Notice of Pendency of Action be set aside, declared invalid and void.
“2. For Judgment in the sum of $30,-000.00 actual damages and $10,000.00 in punitive damages.
“3. For attorney fees and costs of this action.”
On January 4, 1980, Jackson, Inc. filed a counterclaim against Ludvik. In it the allegation was made that Ludvik had knowledge of Jackson, Inc.’s claim against Horseshoe prior to the time he was assigned the contract. The counterclaim also referred to the assignment of the Centlivre contract to it made by the U.S. Marshall. It concluded by asking the district court to declare Jackson, Inc.’s interest in the land to be superior to Ludvik’s interest. Damages were also sought.
The case proceeded to trial before the court on July 22, 1980. The trial judge gave his findings in a decision letter along with his reasoning:
“1. The Court finds generally in favor of the Defendant and against the Plaintiff on Plaintiff’s Complaint.
“2. The Court finds that as to Plaintiff’s Complaint, the Plaintiff is not the owner of the real property described in his Complaint and that title to said real estate should not be quieted in the Plaintiff and that the notice of pendency of action should not be set aside.
“3. The Court finds that the Plaintiff is not entitled to a judgment for either actual damages or punitive damages.
“4. The Court finds generally in favor of the Defendant on its Counterclaim and against the Plaintiff.
“5. The Court finds that the assignment of contract for deed given to the Defendant pursuant to the judgment in the United States District Court, Northern District of Indiana, South Bend Division, should be and the same is hereby declared superior to any interest which the Plaintiff has in the subject property, and that *1157the Defendant shall be entitled to immediate possession of the real property covered in the assignment of the contract for deed given to the Defendant pursuant to said judgment.
******
“In reaching this decision, the Court considered that it had dismissed Civil Action No. 14-55 brought by James S. Jackson Company, Inc., as Plaintiff, v. Horseshoe Creek Limited, as Defendant, because it found that the action should be brought in Indiana or Colorado, because even though it related to a contract for the purchase of real property, that it was an action in personum [sic]; and the Court now finds that the action brought by the Defendant in Indiana was properly brought there in the United States District Court, Northern District of Indiana, South Bend Division. Plaintiff contended throughout the trial that Horseshoe Creek Limited, the partnership that acquired the real estate from James F. K. Centlivre and was one of the Defendants in the suit in the United States District Court in Indiana, was a different partnership than the partnership that assigned the Centlivre contract to the Plaintiff. The Court finds that although the original partners, Fred M. Meyer and Peter T. Scifo, formed family corporations and the family corporations, by agreement, became the partners instead of the two individuals, that it was still the same partnership. Fred M. Meyer was the agent for service for Horseshoe Creek Limited, a partnership, and was the party served in the United States District Court action in Indiana, was the individual that did all the negotiating for the partnership, and was in possession of the real estate in question under the Centlivre contract until the partnership purported to assign the contract to Plaintiff, and then remained in possession of the realty under the direction of the Plaintiff.
“In arriving at the above decision, the Court also finds that the Plaintiff accepted the assignment of the contract knowing of the pending suit in the United States District Court in Indiana and so testified; and, therefore, took possession subject to the rights of the parties to the litigation as was finally determined by the judgment of that court, and as to the Defendant herein, cannot be considered a bona fide purchaser.”
On August 20, 1980, Jackson, Inc. moved for a new trial on the basis of newly discovered evidence. This new evidence consisted of a set of agreements entered into on April 22, 1980, by Ludvik and Centlivre. Under the terms of the agreements, if there was a default on May 1, 1980, on the Centlivre contract for deed and it was not corrected within ninety days, then Centlivre would execute his right under the contract to terminate it for non-performance and take the deed and place it in a trust of which Ludvik and Centlivre would be trustees. Meanwhile, Ludvik would place in the trust $39,-144.77 — the payment due on May 1, 1980 under the Centlivre contract for deed was $40,893.17. This money was to be used by Centlivre to pay a debt of his. The purpose of the trust would be to sell the Centlivre land with Ludvik receiving 65% of the proceeds. The arrangements were clearly a thinly disguised attempt to cut off Jackson, Inc.’s interest in the land.
Jackson, Inc.’s motion for a new trial was denied; and on November 5, 1980, final judgment was entered. Both parties appealed.
Ludvik, on appeal, has claimed that the district court erroneously concluded that Jackson, Inc.’s interest in the land was superior to his. His argument rests largely upon the conclusion that the court-ordered assignment of the Centlivre contract executed by the U.S. Marshall on behalf of Horseshoe exceeded the power of the court there and thus was invalid. In his conclusion, Ludvik asks that this court:
“ * * * reverse this matter and find that Plaintiff’s interest is superior to that of Defendant’s on the basis that the U.S. District Court for the Northern District of Indiana, Southbend Division did not have jurisdiction over lands situated exclusively in Platte County, Wyoming. *1158Plaintiff asks that title be quieted in him to the exclusion of Defendant.”
ANALYSIS
I do not believe that Ludvik’s request for a quiet title should have been granted; and therefore, I must dissent from the majority’s opinion. The law is well settled that if there is any basis upon which a district court may be affirmed, this court must do so. I frankly believe in this case there may be a couple theories supporting the trial court’s decision, but I only outline one.
Both parties claim the land through Horseshoe; Jackson, Inc.’s interest arose through a contract which provided it with the right to the Centlivre contract if there was a default by Horseshoe, and Ludvik claimed an out-and-out assignment. It has been held that where two parties, each seeking quiet title against the other, claim an interest to the property through a common source, the question presented is only, as between the parties, whose interest is superior. Dame v. Mileski, 80 Wyo. 156, 340 P.2d 205 (1959). Thus the issue presented by this case should actually be, as between Jackson, Inc. and Ludvik, whose interest is superior. The facts clearly show that Jackson, Inc. acquired his rights to the Centlivre contract prior to Ludvik’s acquisition.
Section 34-1-120, W.S.1977, provides:
“Every conveyance of real estate within this state, hereafter made, which shall not be recorded as required by law, shall be void, as against any subsequent purchaser or purchasers in good faith and for a valuable consideration of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.”
Section 34-1-102, W.S.1977, defines the term “conveyance”:
“The term ‘conveyance,’ as used in this act, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, alienated, mortgaged or assigned, or by which the title to any real estate may be affected in law or in equity, except wills, leases for a term not exceeding three (3) years, executory contracts for the sale or purchase of lands, and certificates which show that the purchaser has paid the consideration and is entitled to a deed for the lands, and contain a promise or agreement to furnish said deed at some future time.”
Under such a definition, Jackson, Inc.’s claim was not a conveyance, in that it was a contract to assign an executory contract. Accordingly, the statutes do not apply. In considering what law to apply in this case, the majority would have been wise to review State, ex rel. State Highway Commission v. Meeker, 75 Wyo. 210, 294 P.2d 603, 605 (1956). The court there discussed what happens when a transaction has occurred which affects title to land but which does not constitute a conveyance under the statute such that recording is not required:
“ * * * At common law in England, there was no system of registration or recording, and the rule between claimants of the same title was found in the maxim ‘prior in tempore potior est in jure,’ which means, he who is first in time has the better right. 45 Am.Jur. 435; 23 R.C.L. 170; 2 Merrill on Notice § 921. That is still the law except as abrogated by statute. Thus it is said in 2 Merrill on Notice § 921 as follows:
“ ‘So thoroughly has the recording office entered into our legal system that lawyers and judges alike tend to refer to notice by record as though it were a common law principle without reference to the statutes upon which it rests. Yet because the foundation is statutory, and because difference in phraseology may involve variance in interpretation and application, we need to remember constantly that the necessity for recordation, as well as its effect, is a creature of ordinance, and that without the command of our omnisapient representatives in legislature assembled no one is required to place his title upon record in order to preserve it. In a number of instances statutes which merely authorize or permit the recording of particular instruments have been construed not to make such recording *1159essential to the protection of property interests arising thereunder.’
“Numerous cases are cited. So it is said in 45 Am.Jur. § 155, p. 515:
“ ‘The failure to record an instrument which is not required to be recorded does not affect or vitiate the instrument as to anyone, and it is valid not only between the parties thereto, but also to subsequent purchasers and en-cumbrancers.’
“That rule is applicable in the case at bar. * * * if
Also of interest is the case of Low v. Sanger, Wyo., 478 P.2d 60 (1970). There this court noted that recordation of execu-tory contracts for the purchase of land was not necessary under the Wyoming statutes. It further observed:
“ * » * fajjure ⅛ record such an instrument does not vitiate it as to subsequent purchasers — interests thus engendered being determined according to general principles of law and equity, which give weight to numerous common law maxims, including the one defendants seek to emphasize, ‘he who is first in time has the better right.’ * * *” 478 P.2d at 63.
It is obvious from the foregoing that where the recording act does not apply, the law is that the first in time should prevail unless equity dictates otherwise. See also Torgeson v. Connelly, Wyo., 348 P.2d 63, 72 (1959). Here Jackson, Inc. acquired a right to the Centlivre contract if Horseshoe defaulted on a separate construction contract. That right under the common law cannot be defeated by Horseshoe subsequently selling his rights under the Centlivre contract to someone else unless equity dictates to the contrary. And here that is not the case.
One of the most important principles of equity is that he who comes into equity must come with clean hands. Takahashi v. Pepper Tank & Contracting Co., 58 Wyo. 330, 131 P.2d 339 (1942). Here, the district court found, as Ludvik admitted, that he knew of the interest claimed by Jackson, Inc., and the fact that a lawsuit was being pursued to enforce that right. Later it is apparent from the record that he attempted to circumvent the legal system by an elaborate arrangement which attempted to cut off Jackson, Inc.’s rights while leaving his intact. Clearly Ludvik’s hands were not clean. By no stretch of the imagination can he be considered a bona fide purchaser of the contract for deed.
On the other hand, I note that when Jackson, Inc. decided to proceed against Horseshoe based upon the latter’s default, it brought suit in Wyoming, in the same county in which the land was located. When the district court ruled that it could not hear the case because it was transitory and Jackson, Inc. was forced to proceed elsewhere, it filed a notice of the action in order to warn others of the danger of accepting an assignment from Horseshoe of the Centlivre contract. Jackson has become the victim of “damned if you do, and damned if you don’t” at the hands of the judicial system.
The majority contends that the notice was improperly filed — that § 1-6-108, W.S. 19773 granted Jackson, Inc. no right to file it. But the plain language of the statute authorizes such a filing when an action is initiated “in a United States district court.” Such plain statutory language leaves no room for resort to rules of construction, even though the proper rule of construction is contrary to that cited by the majority, in that § 1-6-108, W.S.1977 is part of the Code of Civil Procedure and § 1-1-101 provides:
*1160“The Code of Civil Procedure and all proceedings under it shall be liberally construed to promote its object and assist the parties in obtaining justice. The rule of common law that statutes in derogation thereof must be strictly construed has no application to the Code of Civil Procedure, but this shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement or of a penal nature.”
Further, it does not matter since Ludvik admits having notice of Jackson, Inc.’s claim. It does not matter how he got the notice; all that counts is he knew. The question in this ease only needs to concern, as between Jackson, Inc. and Ludvik, whose rights are superior. As was said in a previous case before this court:
“We have often said that a plaintiff in a suit to quiet title must recover on the strength of his own title and not on the weakness of his adversary, but as pointed out in York v. James, 62 Wyo. 184, 165 P.2d 109, 162 A.L.R. 730, this rule is inapplicable where the parties trace their respective titles to a common source, in which situation the plaintiff need not show his title good as against the whole world but only against the defendant, and the one who has the superior title or equity must prevail.” Torgeson v. Connelly, supra, 348 P.2d at 73.
Another court with good in personam jurisdiction has held that Horseshoe defaulted on its contract with Jackson, Inc. and that Horseshoe is obligated to execute an assignment. Whether or not we recognize that court’s jurisdiction to execute the assignment in the name of Horseshoe, we must recognize that as between these two parties the law and equity dictates that Jackson, Inc.’s interest is superior to Ludvik’s.
I am convinced that Jackson, Inc. has superior title in law and equity; and, therefore, I cannot join in the majority’s disposition of this case.4 I would have affirmed the district court.
. Though the record in that case was not made a part of the record in this appeal by the parties, numerous references were made to it. Because of that and the interrelationship of these actions, it was proper for the district judge to take judicial notice of the record in that case. Weber v. Johnston Fuel Liners, Inc., Wyo., 540 P.2d 535 (1975).
. This action was taken pursuant to Rule 70, F.R.C.P.:
“If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specifíc act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the district, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.”
This rule is practically identical to Rule 70, W.R.C.P. The only differences are that “or sequestration” does not appear in the Wyoming rule and “state,” appears in lieu of “district” in the next to last sentence. The purpose of the rule is to give the court ample power to deal with parties who seek to thwart judgments by refusals to comply with orders to perform specific acts. Wright & Miller, Federal Practice and Procedure: Civil § 3021.
. Section 1-6-108, W.S.1977:
“In an action in a state court or in a United States district court affecting the title or right of possession of real property, or in an action between husband and wife, the plaintiff at the time of filing the complaint and the defendant at the time of filing his pleading when affirmative relief is claimed or at any time afterward, may file in the office of the county clerk in which the property is situate a notice of pendency of the action containing the names of the parties, the object of the action or defense and a description of the property in that county affected thereby. From the time of filing the notice a subsequent purchaser or encumbrancer of the property shall have constructive notice of the pendency of the action.” (Emphasis added.)
. If Ludvik had known nothing of Jackson, Inc.’s claim in this case, and Jackson, Inc. had done nothing to alert prospective innocent purchasers, an entirely different case would have been presented.