concurring.
This case demonstrates the complexity and convolution of the methods whereby we seek to protect real estate interests. More accurately, perhaps, it demonstrates that the prevailing system of recordation fails to protect interests in real estate.
Our decision concerns the inter-relationship and conflict between and among judgments, tax deeds, executions, levys, notices, lis pendens dockets, certificates, judgment dockets, filing fees, attachments, liens, attachment and levy dockets, execution sales, tax sales, etc., etc., ad nause-um. If ever there was doubt as to the need of sensible, updated, simplified and centralized records concerning real estate interests in the state, this case should dispel that doubt. Be that as it may, the issue before us concerns the law in its present form and we must deal with it.
I agree that the Meeks are not bona fide encumbrancers entitled to rely upon the state of the lis pendens records. I do so because they had actual notice of the lien held by Geller. This notice was conveyed during a telephone conversation between Perry Meek and the attorney for Geller. The notification that Geller intended to proceed with the execution levy gave Meeks knowledge of the claim of the lien and was sufficient to prevent Meeks from a successful assertion of the lack of knowledge. Altman v. Circle City Glass Corp. (1985) *1112d Dist.Ind.App., 484 N.E.2d 1296, trams. denied.
My conclusion in this regard leads to the further conclusion that the lis pendens exception for bona fide encumbrancers is not relevant in this case.
Even were it otherwise, I would hold that the Meeks are not entitled to the protection of the lis pendens exception to the execution levy priority. I would not do so, however, on the grounds that by failing to rely upon the state of the lis pendens record the Meeks suffered no harm and therefore gave no "value." The majority, I believe, unduly complicates the issue. It appears to me that the trial court was in error because a judgment lien arises not out of a giving of value or the suffering of a detriment but rather by operation of law following litigation. Bell v. Bingham (1985) 2d Dist.Ind.App., 484 N.E.2d 624. It is my view that the "bona fide encumbrancer" appellation is simply inapplicable to the holder of a judgment lien.
That judgment liens are not afforded the same protection as other equities and liens is established in the law. Foltz v. Wert (1885) 103 Ind. 404, 2 N.E. 950; Jones v. Rhoads (1881) 74 Ind. 510; Huntingburg Production Credit Assn. v. Griese (1983) 1st Dist.Ind.App., 456 N.E.2d 448. It therefore does no violation to the law to reason that judgment lienholders are not within the purview of IL.C. 84-1-4-8 (Burns Code Ed.Supp.1986).
Notwithstanding these expressions of disagreement, I fully concur in the reversal and remand for further proceedings.