Garver v. Graham , 6 Kan. App. 344 ( 1897 )

Wells, J.

Section 81 of the Code provides :

“When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s title,” etc.

Judge Story says :

“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 in the same manner as if he had such notice, and he will accordingly be bound by the judgment or decree in the suit.” 1 Story’s Equity Jurispudence, §405.

Did the cross-petition of Mary A. Graham give such notice of her claim to the land as to prevent the plaintiffs in error from acquiring a lien thereon in opposition to the judgment thereafter rendered in the divorce case? She alleged in her cross-petition that she was the owner of this land, describing it, and that she caused a farm worth four thousand dollars to bo deeded to her husband for his and her own benefit. She asked that it be decreed to her; that she be granted alimony, and that all the property, both personal and real, be appropriated to satisfy such decree. Although the" pleading is not a model of clearness and perspicuity, we think it was sufficient to give notice that she claimed the land, and to bind the plaintiffs in error.

In Wilkinson v. Elliott (43 Kan. 594), the court says : “ If a divorce is asked on account of the fault of the husband, the wife may ask not only that all her own land may be restored to her that has not been disposed of, but may describe particular property belonging to the husband, and ask that the sanie may be set apart for her as permanent alimony. When this is done, the property is made the subject-matter of litigation and is brought within the jurisdiction of the court, and any one who purchases the same should be bound by the judgment or decree thereafter rendered.”

In the case at bar, the defendant in error described the land and asked, either that it be decreed to be hers because it belonged to her while the legal title was in her husband’s name, or that it be given her as alimony. The court decreed the land to her, upon which ground is immaterial.

The judgment of the court will be affirmed.