entirely predicated upon the facts found in the preceding findings. For anything the record discloses other facts supporting this finding may have been proved, as, for example, that Whitten had actual notice of the mistake in the judgment long before White purchased; and, if necessary to support the finding, we must assume such to be the fact. Hence, under the theory of the law upon which the case was tried with plaintiff's consent, the decision of the trial court should be affirmed. But, in order that this disposition of the case may not mislead in the future, it is necessary to consider the status of purchasers after final judgment of property which was the subject of the action, and the title of which was affected by the judgment, where, after the purchase, the judgment is vacated or modified, under G. S. 1894, § 5267, which was G. S. 1878, c. 66, § 125. as amended by Laws 1887, c. 61.

There can be no doubt but that one who, after final judgment, purchases from one of the parties to the action at any time within three years after the judgment has been recorded in the office of the register of deeds, takes the chances of his title being affected by the subsequent setting aside or modification of the judgment, under section 5267. Lord v. Hawkins, 39 Minn. 73, 38 N. W. 689; Welch v. Marks, 39 Minn. 481, 40 N. W. 611; Drew v. City, 44 Minn. 501, 47 N. W. 158. The question remains, however, whether his title can be thus affected without notice to the purchaser of the application to vacate or modify the judgment.

It is now generally held that an appeal continues the lis pendens until final judgment on the appeal; and as an application for relief under section 5267, at any time before the time for appealing expires, is to a certain extent a substitute for an appeal, the action may perhaps be deemed pending until the time for appealing expires, so as to make a purchaser within the time a purchaser pendente lite, merely occupying the shoes of the party to the action from whom he bought. It is not necessary to decide that question at this time, as in this case the time for appealing had expired before application was made to amend the judgment. The rule at common law as well as in chancery was that the lis pendens terminated with final judgment or decree. A writ of error or a bill of review, which were new actions, constituted a new lis pendens which, however,

would not affect purchasers between the date of the final judgment or decree and the date of suing out the writ or of filing the bill.

Under our Code, after final judgment an action is still sub judice and under the control of the court for the purposes of section 5267; but, at least after the time for appealing has expired, the action cannot be said to be still pending, in either the popular or historic sense of the term. Where, as in this case, the time for appealing from the judgment had expired, the application for relief under section 5267 serves somewhat the same office as a bill of review in chancery. And it was well settled that, if a person not a party to the original suit became interested in the subject-matter, he was a necessary party to a bill of review by way of supplement. Daniell, Ch. Prac. 158; Mitford, Eq. Pl. 90; Story, Eq. Pl. § 420. Unless thus made a party, he would not be affected by a subsequent change or modification of the decree.

We are of opinion that, on the same principle, the rights of a purchaser of the subject of the action after final judgment cannot be affected by a subsequent setting aside or modification of the judgment (at least after the time for appealing has expired), unless he is made a party to, or given notice of, the application. As to him, such modification or vacation of the judgment is wholly inoperative and void.

This has been always assumed or implied in all the decisions of this court. See Berthold v. Fox, 21 Minn. 51; Welch v. Marks, supra; Chase v. Whitten, 62 Minn. 498. In Lord v. Hawkins, supra, notice was served on the purchasers, who were the appellants in that case. In Drew v. City, supra, the plaintiff was protected as an innocent purchaser for value, under the three-year clause; and hence it was unnecessary to consider the question of notice.

There is a surprising paucity of decisions on the question in other code states which have statutes similar to ours; but, so far as we have been able to ascertain, such decisions as there are, are in line with the views we have expressed. This is in accord with the elementary principles that a person is not bound by a judgment to which he is neither a party nor privy, and that he cannot be deprived of his property without notice and his day in court. See Robinson v. American, 9 Civ. Proc. 78.

In this case, plaintiff's assignor (Whitten) had both actual and constructive notice of White's purchase. What would be the result when the party who applies to have a judgment set aside or modified has no notice of the fact of the change of interest, as where the purchaser neither records his deed nor goes into possession, we need not now consider. It follows from what we have said that the modification of the judgment was wholly void and inoperative as to White, and that his title stands on the original judgment just as if the modification had never been made. On that ground, he was, upon the facts found, entitled to the judgment which the court ordered.

Judgment affirmed.

NICHOLAS GEORGES v. JOHN A. NIESS.1

December 2, 1897.

Nos. 10,667-(132).

Arbitration-Award-Waiver by Consent-Validity.

In the case of a common-law agreement to submit disputed matters to arbitration, and an award made pursuant thereto, it is competent for the parties, by mutual consent, to waive or repudiate the award; and, when this has been done, one of the parties cannot afterwards set it up, and rely upon it against the other.

Same-Oral Agreement.

The mutual agreement to waive the award may be oral.

Appeal by plaintiff from an order of the district court for Wright county, Smith, J., denying a motion for a new trial. Affirmed.

W. H. Cutting, for appellant.

Wm. E. Culkin, for respondent.

MITCHELL, J.

The parties being partners in business, the plaintiff brought this action to dissolve the partnership, for an accounting and for a winding up of the partnership business.

After the cause was at issue the parties entered into a common1 Reported in 73 N. W. 644.

law agreement to submit to arbitration all matters in controversy between them in the pending suit. Pursuant to this submission the arbitrators made their award or awards in three instalments (Exhibits B, C, and C continued), which seem to have been made in the inverse order from that in which they are named. Subsequently both parties, being dissatisfied with the award, talked the matter over with their respective attorneys and mutually agreed verbally to repudiate and disregard the award and to proceed with the trial of the pending action, and to refer it to Mr. Alley to take the evidence and report judgment; whereupon the attorneys, with the knowledge and consent of their respective clients, announced in open court the agreement to refer the case to Alley and, in accordance therewith, the clerk entered in the minutes of the proceedings in court, under the title of the case, "Referred to J. T. Alley to take evidence and report judgment." Some months later the parties seem to have again changed their minds and, by their respective attorneys, entered into and filed a written stipulation that the cause might "be placed upon the calendar for the general December, 1894, term of said court for trial."

After all this had occurred the plaintiff served a supplemental complaint, alleging the submission to arbitration and the award and practically turning the action into one on the award. Defendant answered the supplemental complaint, setting up the defense, among others, in substance that, after the award was made the parties mutually agreed to repudiate it and go on with the trial of the action.

The case seems to have gone to trial by the court on the issues tendered and made by the supplemental pleadings, and the court found that the award had never been accepted or recognized by the parties and that, subsequently to the award, the parties by mutual agreement had placed the case upon the calendar of the court for trial; also, that the allegations of the supplemental complaint were not sustained by the evidence; and, as conclusions of law, ordered

"That the said cause under the supplemental complaint be and the same is dismissed. That the cause stand for trial upon the original pleadings in said cause."

While not expressed in so many words, the findings of the court amount in legal effect to findings (1) that no valid award has ever been made, and (2) that the parties had mutually agreed to repudiate the award that was made. We are of the opinion that the evidence justified both of these findings. The award seems to be uncertain, unintelligible and even contradictory, and for that reason void. But, conceding that the award was valid, the evidence amply justified the finding that the parties had mutually agreed to repudiate it. In fact, the evidence to this effect is conclusive.

The law is well settled that when parties have entered into an agreement to refer disputed claims to arbitration, and an award has been made by virtue of such agreement, it is entirely competent for them to waive or repudiate such award by mutual consent. Girdler v. Carter, 47 N. H. 305; Rollins v. Townsend, 118 Mass. 224. And if it be repudiated by the mutual consent of the parties, who refuse to be bound by it, it is too late for one of them to undertake to set it up and rely upon it against the other. Morse, 'Arb. 532. The act of the parties in mutually agreeing, after the award was made, to submit this action to a referee for trial would of itself, in the absence of an express agreement to the contrary, amount to a waiver of the award. Rollins v. Townsend, supra. Counsel for the plaintiff cites no case to the contrary and we think none can be found. Of course, we are speaking of a common-law submission. What may be the rule in case of a statutory submission, which is really a proceeding in court, we need not consider.

It is also contended that, conceding that it was competent for the parties by mutual consent to waive or repudiate the award, yet they could only do so in writing. We are not aware of any such rule of law and are referred to no authorities, to that effect. An oral agreement to submit to arbitration is good at common law. 2 Am. & Eng. Enc. (2d Ed.) 541; Morse, Arb. 50. Certainly, the evidence of a waiver or repudiation of the award need not be of any higher order than that of an agreement to submit.

Certain rulings on the trial are assigned as error, but it is unnecessary to consider any of these except to say that there was no error in admitting evidence as to what took place between plaintiff and his attorney in reference to waiving the award and referring