The main question in this case is, whether the notice of the pendency of an action affecting the title of the said premises was well filed before the service of the summons in the action of Edson and others against O'Reilly so as to reduce the lien of the plaintiff's mortgage to that of a subsequent incumbrancer.
At the time of the commencement of that action the Code provided that, "In an action affecting the title to real property, the plaintiff at the time of filing the complaint, or at any time afterward, or whenever a warrant of attachment, c., shall be issued, c., may file, c., a notice of the pendency of the action, c. From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby, and every person whose conveyance or incumbrance is subsequently executed, or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the action."
§ 132. The time when the notice may be filed is not prior to the filing of the complaint. It is distinctly declared that it may be done at that time. The Code, however, does not direct the filing of the complaint at any time, except in the case of service of the summons by publication under section 135. In all other cases, the time of filing the complaint was at the discretion of the plaintiff or his attorney until ten days after service of the summons, when, on proof of the omission, the *Page 111 adverse party can, by an ex parte order, compel it to be filed in a specified time, or that the action be deemed abandoned.
§ 416. This section, taken literally, permits the same discretion, as to the time of filing the notice, which is allowed in respect to filing the complaint, for the purpose of effecting a lien on real estate.
It is insisted that the notice cannot be filed until after the commencement of an action by the service of a summons, and such has been the practice sanctioned by the Supreme Court in several reported cases. It is said in those cases that it is inconsistent that a notice of the pendency of an action should be filed when no action exists — that is, that no action is actually pending because the summons has not been served. The same practice adopted in the case of Edson was pursued, substantially, prior to the Code.
This notice was then called a lis pendens. It was regular practice then to file it before the service of a subpœna for the commencement of an action in the late Court of Chancery; but the subpœna could not regularly be issued until the bill or complaint had been filed.
No inconsistency was then ever suggested as having arisen from the filing of a lis pendens, containing the same notice in substance, before the subpœna was served or the action commenced. Although it is now called, in the Code, a notice of the pendency of an action, its contents do not necessarily state that an action is pending, or has been previously commenced. The notice is required to state only the names of the parties, the object of the action, and a description of the property affected. There is nothing in the contents of the notice at all inconsistent with the future commencement of the action. The apparent inconsistency relates only to the name of the notice. It is apparent, I think, that the legislature had in view, when this provision of the Code was adopted, the practice previously existing in the late Court of Chancery, and that the intention was to continue it.
When a person, about to become a purchaser or incumbrancer, should search the records, the notice would be found on file, and the complaint being there also, he would be *Page 112 enabled to learn the nature of the demand supposed to affect the title, and of which notice was given to all concerned.
There is nothing in the reading of the 132d section, as it existed in 1859, requiring it to be held that the complaint and notice could not be filed until the summons had been served; nothing from which an intention to repeal the prior practice prevailing in the late Court of Chancery can or ought, in my judgment, to be inferred. At the first adoption of the Code, this provision authorized the notice to be filed "at any time after the commencement of the action." It was changed in 1851, so as to permit it to be filed at the time of filing the complaint, and the former restriction to the time of commencing the action was stricken out. Thus it remained in 1859, when the action of Edson and others, under which O'Connell acquired his title, was commenced.
The question is of no importance, except so far as the parties to this appeal are concerned, as the legislature have since removed all question by an amendment of section 132, declaring that an action shall be deemed commenced, for the purposes of that section, when the notice is filed, if the summons is actually served within sixty days thereafter.
I am unable to perceive any sufficient reason for holding that the section in question did not mean, as it distinctly read in 1859, that the notice may be filed at the time of filing the complaint, and that the only restriction upon filing the notice is, that the complaint must also be filed.
Great inconvenience might result from restricting a party so that the notice could not have been filed till after the service of summons. The parties defendant might never be fixed so that an amendment of the complaint in this respect would not be required to bring in new purchasers or incumbrancers, created, perhaps, for the express purpose of embarrassing the prosecution of an action.
The judgment ought to be reversed as to the appellant, and judgment rendered declaring the priority of the title of Richard O'Connell, with costs.
Judgment accordingly. *Page 113