below. Where the statute required that the docket "particularly state and set forth the names of the parties," an entry of the firm names of the defendants, without their christian names, was held to create no lien.2 Mis-spelling the name will not vitiate, if identity of sound be preserved.3 The general rule of equity jurisprudence that prior equitable interests in rem, including unrecorded mortgages and equitable liens upon specific parcels of land, have priority over the general statutory lien of subsequently docketed judgments, has been much broken in upon by the effect of these statutes of registration as applied to judgments.5

$43. Notices of Lis Pendens.

The common law rule requiring purchasers at their peril to take notice of suits in the courts affecting the property, has always been regarded as a harsh one, especially in its application to bona fide purchasers for value, and has been tolerated only from a supposed necessity. In many states the harshness of the rule has been materially modified by statutes providing that the pendency of a suit shall not be notice to a stranger until a notice of lis pendens has been filed in the office of the recorder of deeds, or clerk of the county, where the land lies; and that one having no actual

1 Hunt v. Grant, 19 Wend. 90.

2 The York Bank's Appeal, 36 Pa. St. 458; Ridgway & Co.'s Appeal, 15 Pa. St. 177; but see contra, Hibberd v. Smith, 50 Cal. 511.

3 Meyer v. Fegaly, 39 Pa. St. 429; Petrie v. Woodworth, 3 Cai. 219; Freeman on Judgments, $347.

4 Price v. Cole. 35 Tex. 461; Galway v. Malchow, 7 Neb. 285; Wilcoxen v. Miller, 49 Cal. 193; Wheeler v. Kirtland, 24 N. J. Eq. 552; Apperson v. Burgett, 33 Ark. 328; Greenleaf v. Edes, 2 Minn. 264; Kelly v. Mills, 41 Miss. 267; 2 Pom. Eq. Jur. §§721-724.

5 Grace v. Wade, 45 Tex. 522; overruling Price v. Cole, supra; Miller v. Estill. 8 Yerg. 452; Smith v. Jordan, 25 Ga. 647; Uhler v. Hutchinson, 23 Pa. St. 110; Barker v. Bell, 37 Ala. 354; Young v. Devries, 31 Gratt. 304; King v. Portis, 77 N. C. 25; Guiteau v. Wisely, 117 Ill. 433. See post, ch. 8.

The recording in another county of a judgment which has become dormant because of failure to issue execution within twelve months, is of no effect. Clements v. Ewing, 71 Tex. 370.

6 Hayden v. Bucklin, 9 Paige, 572; Leitch v. Wells, 48 N. Y. 585; Richardson v. White, 18 Cal. 102.

notice may acquire a good title until such notice is filed.1 Constructive notice is made by these statutes to depend upon the filing of the proper statutory notice. Where the terms of the statutes apply only to real estate, the rule as to suits concerning personal property remains unchanged, and as at common law. The general rules and limitations of the doctrine of lis pendens, as to the commencement, continuance and termination of the suit, as to the identification of the subject matter, and as to the persons who are affected by it, apply to all cases coming within the statutory provisions. Actual notice

1 Code of Va. (1887), $3566; Dawson v. Meade, 71 Iowa, 295; Pub. Stats. of Mass., 1882, ch. 126, §13; Rev. Stats. of Mich. §5765; Gen. Stats. of Minn., 1878, ch. 75, §34; Civ. Code of Proc. of Cal. §409; and statutes of N. Y.; Conn.; Ill.; Iowa; Mo.; Nev.; N. J.; N. C.; Ohio; Or.; Penn.; R. I.; S. C.; W. Va. and Wis. Rev. Stats., §3187.

2 Jackson v. Davidson (Mich.), 32 N. W. Repr. 726; Richardson v. White, supra; Lecamp v. Carnahan, 26 W. Va. 839; Rosenheim v. Hartsook, 90 Mo. 357; 2 S. W. Repr. 473.

State statutes relating to lis pendens apply to suitors only in the state and not the Federal courts. Majors v. Cowell, 51 Cal. 478. Where a mortgage antedated the notice, it was held to have precedence, though not recorded until after the lis pendens notice was filed. Hammond v. Paxton, 58 Mich. 393; s. c. 25 N. W. Repr. 321.

The effect of the notice remains unchanged, although the lis pendens paper may have been lost from the files, or may have been, through no fault of the party filing it, improperly entered by the clerk. Heine v. Ellis, 49 Mich. 241.

Allen v. Atchison, 26 Tex. 616; Leitch v. Wells, 48 N. Y. 585. In some states the statutory notice is confined to certain kinds of personal property, as in Kansas (Dassler's Comp. Laws, p. 612, §81), and in Maine, N. H.; Vt. and Mass.

It is held in North Carolina that the statute (Battle's Rev., ch. XXII, §90), does not apply to real property situate in the county where the suit is pending. Badger v. Daniel, 77 N. C. 251; Rollins v. Henry, 78 N. C. 342; Todd v. Outlaw, 79 N. C. 235. The New York courts, however, place a different construction on a similar statute. Lamont v. Chesire, 65 N. Y. 30.

* See Brooks v. Davey, 109 N. Y. 495; s. c. 17 N. E. Repr. 412; Briscoe v. Ashbey, 24 Gratt. 471; Cirode v. Buchanan, 22 Gratt. 205; Davis v. Life Ins. Co., 84 Ill. 508; Dresser v. Wood, 15 Kan. 344; Drake v. Crowell, 40 N. J. L. 58; Brown v. Goodwin, 75 N. Y. 409; Roach v. Riverside Co., 74 Cal. 263; White v. Perry, 14 W. Va. 66; Page v. Waring, 76 N. Y. 463; Hall v. Gustin, 54 Mich. 624; s. c. 20 N. W. Repr. 616; Mayberry v. Morris, 62 Ala. 113; Jones v. McNarrin, 68 Me. 334; 8. c. 28 Am. Rep. 66; Fuller v. Scribner, 76 N. Y. 190; Tredway v. Mc

will supply the want of filing the notice required by the statute.1

$44. Attachment and Execution Liens.

Some of the statutes provide for the recording of certificates of the levy of attachments, executions and other writs creating a lien on real estate. In those states where there are no statutory provisions for giving notice of lis pendens, some provision as to giving notice of the liens cre

Donald, 51 Iowa, 663; Farmer's Bank v. Fletcher, 44 Id. 252; Head v. Fordyce, 17 Cal. 149; Mellwrath v. Hollender, 73 Mo. 105; s. c. 39 Am. Rep. 487; Wade on Notice, §§337-377; Jones on Mortg. $599; 2 Devlin on Deeds, §§803-805; 2 Pom. Eq. Juris. §§632-640.

Notice of lis pendens held not affected by the fact that it was filed several days before the commencement of the suit. Houghton v. Mariner, 7 Wis. 244. Contra, the notice in such case is of no effect. Walker v. Hill, 22 N. J. Eq. 514; Dawson v. Mead, 71 Wis. 295; s. c. 37 N. W. Repr. 274; Sherman v. Bemis, 58 Wis. 343. See Weeks v. Tomes, 16 Hun. 349.

1 Wisconsin Cent. Ry. v. Wis. River Land Co., 71 Wis. 94; s. c. 36 N. W. Repr. 837; Sharp v. Lumley, 34 Cal. 611; Baker v. Pierson, 5 Mich. 476; Sampson v. Ohleyer, 22 Cal. 200; Abadie v. Lobero, 36 Cal. 390; 2 Devlin on Deeds, §805.

If the deed is made before, though recorded after, the filing of the lis pendens, it will prevail under Dak. Civ. Code of Proc.. §101. Bateman v. Backus (Dak.), 34 N. W. Repr. 66, following Lamont v. Cheshire,

supra.

2 Laws of Texas, 1889, p. 80; Rev. Stats. of Conn. 1875, tit. 3, ch. 3, art. 3, §7; Gen. Laws of N. H., 1878, ch. 27, §7; Pub. Stats. of Mass., 1882, ch. 172, §3; Code of Ga. §2709, and statutes of Maine, Vermont, Michigan and Maryland.

Where a copy of an attachment writ was left with the clerk, it was held to impart the notice, although he neglected to record it. Steam Co. v. Sears, 23 Fed. Repr. 313; and also that such failure of the recorder does not defeat the lien. Sykes v. Keating, 118 Mass. 517; Gen. Stats. of Mass., ch. 123, §§52, 56; contra, Benjamin v. Davis, 73 Iowa, 715, as to the notice.

Actual knowledge of an attachment lien held sufficient to charge a subsequent purchaser. Leathwhite v. Bennett (N. J.), 11 Atl. Repr. 29.

The Michigan statute providing for the record of attachment liens, held not to give priority because of registry. Columbia Bank v. Jacobs, 10 Mich. 349; s. c. 81 Am. Dec. 792.

Where the levy is not entered on the incumbrance book, it is not good against a subsequent purchaser without notice. Benjamin v. Davis, 73 Iowa, 715; s. c. 36 N. W. Repr. 717; Code of Iowa. §3022; although the fault was in the failure of the clerk to enter the notice of levy. Id.

ated by the levy of such writs would seem to be imperatively required; since otherwise, in cases where the writs were sent from another county, there would be nothing whatever of record in the county where the land lay to give notice of the lien.

$45. Mechanics' Liens.

The statutes of nearly every state provide for the filing and recording of mechanics' liens.1 This lien is the creature of the statute, and does not exist until the statute, including filing and record, has been complied with, unless the terms of the statute in some way recognize its existence independently of such record. This feature is important as affecting the question of whether actual notice can supply the place of record, or in any way charge the property in the hands of a subsequent purchaser who buys prior to the record of the lien. The fact that the mechanic is at work on the premises has been held in Kentucky not actual notice of his lien to a bona fide mortgagee, or purchaser, who buys during the time prescribed for the filing of the lien.3 The lien is subject to any prior lien that has already attached to the property; but a prior mortgage, unrecorded at the date of

1 See Stimson's Am. Stat. Law, §§1960-1987.

2 Cameron v. Marshall, 65 Tex. 11; Conway v. Crook, 66 Md. 290; Spencer v. Barnett, 35 N. Y. (8 Tiff.), 96; Greene v. Ely, 2 Greene (Iowa), 508; Noll v. Swineford, 6 Pa. St. 187; Dore v. Sellers, 27 Cal. 588; White Lake Co. v. Russell (Neb.), 34 N. W. Repr. 104; s. c. 22 Neb. 126; 3 Am. St. Rep. 262; Shaw v. Allen, 24 Wis. 564; Green v. Green, 16 Ind. 253; s. c. 79 Am. Dec. 428. In Cameron v. Marshall, supra, the court say: "The lien has no existence without the record;" but in Trammell v. Mount, 68 Tex. 211, it is said: "The registration does no more than preserve a lien which exists already." And see Huck v. Gaylord, 50 Tex. 582; Ferguson v. Ashbell, 53 Tex. 249. The lien must be indexed and docketed. Appeal of Cessna (Pa.), 10 Atlantic Repr. 1.

Foushee v. Grigsby, 12 Bush. 75; Neeley v. Searight, 113 Ind. 316; s. c. 15 N. E. Repr. 598; Gere v. Cushing, 5 Bush. 304; Shackelford v. Beck, 80 Va. 404.

4 Clark v. Butler, 32 N. J. Eq. 664; Campbell's Appeal, 36 Pa. St. 247; Lyle v. Ducomb, 5 Binn. 585; Norris' Appeal, 30 Pa. St. 122. That

3

filing the lien, or of the accrual of the mechanic's right thereto, will in 'most instances, be subordinated to the mechanic's lien. The statutes are so various in their terms and provisions that it is impossible to lay down general rules on this subject, and each decision must be understood as largely controlled by the statute on which it is based. Usually a time is prescribed within which the claim of lien must be filed for record, and a filing after that time has been held to confer no rights. The intent of the statute is held, in a majority of the cases, to be that without record the right to the lien shall cease after the specified time. When filed within the time, the lien is in many instances made to relate back to the date when the work was begun, or performed, or the material furnished, or to the date of the mechanic's contract, as the case may by statute be, and to take precedence over intervening liens and claims. But, though given preference by statute over a lien or mortgage, it has been held not to prevail over a sale for valuable consideration paid, although the sale be made within the

the lien has not precedence of prior incumbrances is expressly declared in a number of the statutes. Cothran's Rev. Stats of Ill. (1883), ch. 82, §17; Florida Dig. (1881), ch. 143, §6; Code of Ga. (882), §1980; Pub. Stats. of Mass. (1882), ch. 191, §5; Gen. Stats. of S. C. (1882), §2352.

1 Jones on Mortg., §479a, citing Davis v. Bilsland, 18 Wall. 659; Neilson v. Iowa East. Ry. Co., 44 Iowa, 71; Dunklee v. Crane, 103 Mass. 470. By a number of the statutes a lien-holder must have had no actual notice of the prior mortgage or incumbrance. Laws of N. Y. (1878), p. 379, §84; Comp. Laws of N. M., 1884, §1523; Hittell's Codes of Cal. §11186; Civ. Code of Idaho, §819.

2 In a few states, as Miss., Mich., Maryland and Vermont, no time is specified.

3 Jenkins v. Nelson, 11 Mart. 437; Cameron v. Marshall, 65 Tex. 7; Wilson v. Rudd, 70 Wis. 98; s. c. 35 N. W. Repr. 321. The record held ineffectual where it showed on its face to have been filed too late, although, in fact, it had been filed in time. Olson v. Heath, 37 Minn. 298; s. c. 33 N. W. Repr. 791. Contra, record after the time is valid. Nail Temple, 12 Iowa, 276.

V.

4 Trammell v. Mount, 68 Tex. 211; s. c. 4 S. W. Repr. 377; Nail v. Temple, supra; Eq. Life Ins. Co. v. Slye, 45 Iowa, 615; Getchell v. Allen, 34 Id. 559.