MORGAN v. BOSTIC.

utory requirements, or rather that the statute does not apply to such cases.

There can be no question that if the plaintiffs had filed. their complaint setting forth a description of the property and the purpose of the action, at the time of the issuing of the summons or at any time prior to the purchase by Yeatman, the pendency of the action would have been notice to the world and he would have taken title subject to the decree made in the cause. Baird v. Baird, 62 N. C., 317; Dancy v. Duncan, 96 N. C., 111, in which Smith, C. J., says: "No change in the rule is brought about by the statute prescrib ing how notice of a lis pendens shall be given, The Code, Sec. 229, when the transaction is in one and the same County, as in the present case, and notice is furnished in the record in the pending action."

In Spencer v. Credle, 102 N. C., 68, 78, Avery, J., says: "While strangers to the record are not affected with constructive notice of the pendency of an action involving the title to land lying in a county other than that in which the action is pending unless the notice required under Section 229 of The Code has been given, even purchasers for a valuable consideration are affected with notice of an action brought in the County where the land lies, if the pleadings describe it with reasonable certainty, and take title subject to the final decree rendered in the action. A different rule has been adopted. in some other States where the same statute has been passed, but the law has been settled in this State by the cases of Todd v. Outlaw, 79 N. C., 235, and Badger v. Daniel, 77 N. C., 251."

In Collingwood v. Brown, 106 N. C., 362, Shepherd, J., discusses the construction of Section 229 and the authorities both in this and other States, saying: "We are of the opinion however, that, as to real property, there is but one rule of lis pendens in North Carolina, and that the provisions of The

MORGAN v. BOSTIC.

Code, Sec. 229, are a substitute for the common law rule. When the court held in the cases cited that it was not necessary to file a formal notice of lis pendens when the action was pending in the county in which the land was situated, we do not understand that it intimated that two rules of lis pendens, varying in their extent and operation, prevailed in this State.. This consistency can be secured by holding, as we do, that where the action is brought in the county where the land is situated and the pleadings contain 'the names of the parties, the object of the action and the description of the property to be affected in that county', this is a substantial compliance with The Code, Section 229, as to the filing of notice and puts in operation all of the provisions of the statute. There is no incongruity in thus holding as the statute simply provides, that the notice shall be filed with the clerk, and the place of filing would naturaly be with the pleadings in the action."

All of these cases hold that, if the plaintiff would bind purchasers pendente lite of lands lying in other counties, than that in which the suit is pending he must file a notice of lis pendens in each of such counties. The language of the statute is explicit in requiring such notice to be filed "at the time of filing the complaint, or at any time afterwards" this court holding that the filing of the complaint containing sufficient description of the property operates as a lis pendens in respect to land lying in the county in which the action is pending.

In Arrington v. Arrington, 114 N. C., 151, 159, Shepherd, C. J., says: "The rule of lis pendens while founded upon principles of public policy and absolutely necessary to give effect to the decrees of the courts, is nevertheless in many instances very harsh in its operation, and one who relies upon it to defeat a bona fide purchaser must understand that his case is strictissimi juris." For a long time, suits in equity

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were deemed commenced for the purpose of affecting purchasers pendente lite from the issuing of the subpoena. This rule was so harsh and unjust in its operation that "in the year 1705 it was provided by an English statute (4 Anne, Ch. 16, Sec. 22) that no subpoena should issue out of a court of equity until after bill filed, except in case of bill for injunctions to stay waste or to stay suits at law commenced." Since that enactment, the general rule both in law and in equity, in the absence of notice of pendency or equivalent statutes declaring a different date that the facts necessary to notice by lis pendens must be of record by the filing of the bill, petition, complaint or equivalent pleading, and jurisdiction obtained by service of process over the defendant from whom the interest is acquired pendente lite, before lis pendens will commence." 21 Am. & Eng. Enc., 609, 610. "A notice filed before the filing of the complaint will become operative when the complaint is filed, and is an absolute nullity only during the intervening period." Ibid, 615.

In Stern v. McConnell, 35 N. Y., 104, Hunt, J., traces the amendments to the statutes in New York. Prior to 1859, the lis pendens could be filed at the commencement of the action. By an amendment made in that year, the time of filing was changed to the time of filing the complaint-as in our Code, Section 229. The court says: "So marked a change cannot be disregarded. It is evident that the legislature intended to prescribe a different time or a different occurrence as the regulating point for filing the notice." Bennett on Lis Pendens, Sec. 72.

The plaintiffs do not charge that Yeatman had any other notice than that afforded by the filing of the lis pendens at the time the summons issued. They concede that he is a purchaser for value, averring that he conveyed to the defendants Weaver and Miller other real estate as a part of the consideration. Yeatman swears that at the time he purchased and

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took title, he had no notice or knowledge of the pendency of the action or infirmity in the title of his grantors. We are therefore of the opinion that he having purchased prior to the filing of the complaint is not affected by the lis pendens. The judgment of the court below is erroneous in declaring that he holds the title to the land subject to any trust which attached to it in the hands of Weaver and Miller. We do not decide upon the suggestion in plaintiffs' brief that they may follow the land conveyed to Weaver and Miller by Yeatman. The judgment so far as it affects the defendant Yeatman must be reversed.

The parties will take such final action in the case as they may be advised. It was not necessary for the defendant Yeatman to ask for any issue in regard to the lis pendens; the facts appear in the record. The plaintiffs sought to charge the land in his hands by the lis pendens. As we have seen, not having complied with the statute they cannot do so. There is error.

Error.

LEE v. BAIRD.

LEE v. BAIRD.

(Filed June 6, 1903.)

1. WILLS-Construction" Children."

Where a testator bequeathes certain property to V. for her life and at her death to be sold and divided equally among all of the children of the testator, grand-children whose parents were dead at the time of the execution of the will, take nothing under this provision.

2. WILLS-Construction-" Heirs."

Where a will provides that certain property shall be sold and the proceeds divided amongst the heirs of the testator, grand-children of the testator take per stirpes.

3. WILLS-Construction-Advancements-" Heirs."

Where a will provides that the heirs of the testator shall account for advancements, grand-children need not account for advancements made to their parents, as they take as purchasers and not as distributees.

ACTION by J. B. Lee and others against J. R. Baird and others, heard by Judge W. B. Councill, at September Term, 1902, of the Superior Court of BUNCOMBE County.

Mrs. Eliza T. Baird, late of the County of Buncombe, widow, on the 23rd of January, 1884, executed her last will and testament. The portions thereof material to the decision of this case are:

Item 2. I bequeath unto my daughter, Vickie Baird, all my household and kitchen furniture, to be hers forever, and I bequeath to Vickie during her life time my Forest Hill property; and at her death to be sold and divided equally among all of my children.

Item 4. The balance of the Marr Swamp place to be sold to pay my son Joseph the expenses of the law suit on Sec. 9, and if the amount received is more than enough to pay the expenses of the law suit, the remainder to be divided among all my children.