acknowledged the assignment of a security taken for the purchase price of a portion of the land included in his mortgage, was held to be a conclusive presumption that he knew when he executed that instrument, that the property incumbered by such security had been aliened by the mortgagor.1 § 332. Different Kinds of Property. It has been stated elsewhere that this doctrine is most frequently applied to cases involving the title to real property. This, however, is only incidental to the difference in the manner and mode of transferring the title to property of a permanent nature, from that employed to convey that which is movable. There is no dif ference in principle between the effect of recitals in papers by which the title to real and personal property is transmitted, when the latter is conveyed or affected by written instruments. This is generally either where the title is acquired under a will, or a chattel mortgage or trust deed. The principle here §333. Stocks Transferred by Executor. discussed was applied in an early English case, where the property involved was certain stocks, which were assigned by an executor, to a broker who took the same in satisfaction of a debt due from such executor. Knowledge of the fact that the stocks were received by the executor from the testatrix, was brought home to the assignee of the stocks, but not that he had actual notice or knowledge of the contents of the will. It was nevertheless held by the Master of the Rolls, that as he could not make out his title independent of the will, he was put upon inquiry as to its contents. And had he inquired, he would have discovered the falsity of the representations made to him by the executor with respect to his right to assign the stocks. 3 §334. Personal Property. So where personal property of great value was conveyed in trust to secure a trifling indebtedness, conditioned that the property thus transferred might 1 Guion v. Knapp, 6 Paige, 35. * Ante § 307. 'Hill v. Simpson, 7 Ves., Jr., 152. remain in the possession of the grantor for an indefinite time, he having the right to use and consume the same according to his own pleasure, until the happening of an uncertain event. The property thus conveyed included debts due the grantor as well as chattels in possession, and according to the construction placed upon the terms of the instrument, the grantor was allowed to collect these debts, without being required to account to the trustee for the money so collected. It was held that this deed bore upon its face such unmistakable evidences of its fraudulent character, that any one reading it must be presumed to know that it was a contrivance to hinder and defraud creditors. And that a purchaser whose title to the property was traced through this deed was affected with notice of all of its provisions.1 $335. Inquiry Extends to Examination of Papers.—The rules will apply to any species of property, which may be legally transferred by written instruments, or where the title depends upon any writing. And it has been held that the inquiries. which the purchaser is under obligation to make, by reason of his knowledge of the existence of such writing, must not stop short of an inspection of the documents themselves.2 $336. Deed of Real Estate Containing Bill of Chattels. But where a conveyance of real estate in which was incorporated a bill of sale of chattels had been placed upon record, it was held that a purchaser of the real estate was not thereby charged with notice of a lien attempted to be retained upon the personalty.3 'Johnson v. Thweat, 18 Ala., 741–7. 'Christmas v. Mitchell, 3 Ired. Eq., 535. 'Mueller o. Engeln, 12 Bush. (Ky.), 441. 10 352. Alimony. 353. Creditor's Bill. 354. Jurisdiction, 355. Holder of Legal Title must be Impleaded. 356. Equitable Interest between Defendants Unaffected. 357. Suit Must be Continuously Prosecuted. 358. Effect of Dismissal. 359. Diligence in Prosecution. 360. Rule not Extended to Affect Others than Purchasers. 361. Prior Mortgagee Unaffected. 362. Foreclosure of Prior Mortgage. 363. Antecedent Equity. 364. Same. 365. Holder of Equity may Acquire Legal Title. 366. Holder of Contingent Right. 367, Waiver by Plaintiff. 368. Grantor Must be a Party at Time of Purchase. 369. Generally Confined to Real Estate. 370. Purchaser of Securities. 371. Same-Illustration. 372. Does not Affect Negotiable Paper. 373. Peculiar Kind of Property. 374. Statutory Provisions. 375. Purchaser not Affected Personally. 376. Statute of Limitations does not Run during Suit. 377. Purchaser at Execution Sale. $337. Lord Bacon's Rule. The rule by which a purchaser of property, pendente lite, is bound by the decree of the court, is thus expressed by Lord Bacon: "No decree bindeth any that cometh in bona fide by conveyance from the defendant, before the bill is exhibited, and is made no party by bill or order; but when he comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of court, there regularly the decree bindeth. But if there were any intermissions of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matters according to justice."" § 338. Public Policy. The language of the courts in describing the operation of this rule as constructive notice has not escaped learned criticism. Lord Cranworth, in Bellamy v. Sabine, regards it as "scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice. * * * * It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute so as to prejudice the opposite party." It has also been held that, as the doctrine operates in cases where there is no possibility of the purchaser having notice of the pendency of the suit, therefore it rests upon considerations of public policy, and not upon any presumption of notice.3 $339. Doctrine of Constructive Notice Applied. It is undoubtedly true that the rule, which at times works harshly, is only justified by the necessity there exists of putting an end to litigation and preventing the defendant from evading the decree 'Bacon's Works, Vol. 2, 479. '1 De G. & J., 566, -78. Newman v. Chapman, 2 Rand., 53. by parting with the property in dispute after the suit is instituted, and before it has reached final judgment or decree. But courts of equity would not tolerate a rule merely upon grounds of necessity, which operated to divest the title to property, acquired not only in good faith, but without any means whatever of gaining a knowledge of adverse claims. It is no explanation of the principle upon which the rule is founded to say that "the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party." The rule does not operate simply to prohibit litigant parties from transferring their interests. It also prevents others from purchasing while the title is being litigated. It could hardly be conceived that a court of equitable jurisdiction would entertain a rule so harsh in its operations were it not for the publicity of judicial proceedings, by which the purchaser might be enabled to gain a knowledge of the manner in which his vendor's title was attacked. It is perfectly safe to say that if the proceedings were conducted with such secrecy as to render it utterly impossible for a purchaser to obtain any information of the controversy before it was too late, the doctrine of lis pendens never would have been promulgated. There is then no impropriety, apparent from the reason of the rule, in declaring that the pendency of a suit respecting the title to real property is such notice to the world that the property which is the subject of the litigation will be bound by the decree in the hands of a purchaser actually ignorant of the litigation.1 3340. Views of Judge Story. -- This view of the question is also well supported by authority. Judge STORY has said that "every man is presumed to be attentive to what passes in the courts of justice of the state or sovereignty where he resides. And therefore a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice in point of fact, affects the purchaser 1 Blanchard v. Ware, 43 Ia., 530. |