Majority
p. 29Scudder v. Van Amburgh and others. Oct. 23, 1839.
Headnote
It would seem that the filing of a judgment creditor’s bill is a constructive notice of Us pendens, sufficient to affect a purchase of the debtor’s furniture made pendente lite.A party who claims as a purchaser without notice must set it up by answer or plea, and cannot avail himself of it by a demurrer to a pleading which explains and goes against the purchase.
Debtor and Creditor. Lis pen-dens. Purchaser without notice. Pleading. Demurrer.
Judgment creditor’s bill; and where a supplemental bill had been filed to reach furniture that had belonged to the judgment debtor, and sold'by him to the defendant, Isaac Van Amburgh, pendente lite. No receiver had been appointed. The question was, on the effect of the filing the bill as a notice. The defendant, Van Amburgh, interposed a demurrer.
Mr. H. F. Clark, in support of the demurrer.
Mr. Livermore, for the complainant.
I am inclined to think that the lis pendens operated as a constructive notice to the defendant, Van Amburgh, when he claims to have purchased and paid for the furniture, and that he cannot hold it against the judgment creditor of Tysen, his vendor, who had, at the time, acquired at least an equitable lien upon it from the moment of filing his bill in this court. But, without expressing a definite opinion on this point, which, perhaps, is not a decided one: Murray v. Lilburn, 2 J. C. R. 444, I am of opinion that if the defendant, Van Amburgh, would claim to be a bona fide purchaser without notice, he must set up the fact by answer or plea, and cannot avail himself
p. 30
of it on a demurrer to this supplemental bill : Galatian v. Erwin, Hopk. 48 ; S. C. 8 Cowen’s K 361.
Demurrer overruled, with costs; and defendant is to answer within twenty days.