Rhodes, J., concurring:
I concur in the judgment, not only on the grounds stated in the foregoing opinion, but also on those mentioned in the former opinion in this case.
Mr. Justice Crockett dissented.
[The following is the opinion referred to by Mr. Justice Rhodes in his concurring opinion. It was delivered by Mr. Justice Rhodes at the April Term, 1869, and a rehearing was afterwards granted. Mr. Justice Sanderson and Mr. Chief Justice Sawyer concurred.—Reporter:]
The first point of the appellants is fatal to the order setting aside the judgment. Authority for the proceedings, it is claimed, is found in the sixty-eighth section of the Practice Act. The orders therein provided for are such as may be obtained in the usual and regular course of proceedings. They are proceedings in the action, or in the direct line of the judgment, if taken after judgment. Ho authority is thereby given to any person to intervene and take the proceedings, or the judgment, out of the hands of the parties; but there the rule in all actions obtains, that the parties to the action alone are entitled to be heard, and make the motions, and obtain the orders in the cause. The section . [261]provides that the Court may, “ upon such terms as may be just, and upon payment of costs, relieve a party, or his legal representative, from a judgment, or order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect;” and this is relied upon as authorizing persons who have purchased the property in controversy from the plaintiff pendente lite, to move, in their own name, to set aside a judgment against the plaintiff. The answer to this position is: the plaintiff is not dead. The “légal representative ” mentioned in the section is he who is authorized to take the place of a party in the action, made vacant by his death. Assuming that the moving parties had acquired the plaintiff’s interest in the premises, the obstacle in the way of their taking, any step in the action is the fact that they had not become parties to the action. They could not be substituted for the plaintiff after judgment—at least we have never heard of such a case, and no reason occurs to us why a substitution should be allowed at that stage of the action—and until they had become parties to the action, they could not participate in the proceedings.
It i°s provided by section sixteen that in the case of a transfer of interest, such as is set up in the moving papers, the action may be continued in the name of the original party, or the person to whom the transfer is made may be substituted in the action. In the first case all the proceedings are in the name of the party to the record, but for the benefit of the person in interest, and the latter person, though the proceedings are for his benefit, and though he virtually controls the prosecution or defense of the action, as the case may be, can proceed only in the name of the original party, and he could not refuse his consent to the use of his name for that purpose. Here, however, not only was the action not prosecuted for the benefit of those to whom the title of the plaintiff was transferred, but they did not know, as they allege, of the pendency of the action.
[262]They might also have intervened in the action had they been apprised of its pendency, and they would have been entitled to be heard as parties, but having failed to intervene during the pendency of the action, are they authorized to intervene after final judgment? This is, in fact, an intervention after final judgment—a proceeding wholly unauthorized by the statute.
If these parties could make the motion, and were entitled to the order granted in this case, then there is no reason why they could not have taken any other step in the action that the plaintiff was authorized to take. Suppose that, instead of this motion, they had moved for a new trial, or had taken an appeal, will it be contended that they could have been heard? We think no one would so assert. If not, then they were not entitled to make this motion. (See Dimick v. Deringer, 32 Cal. 488.)
But leaving this question, and coming to the question of merits, it will be seen that the moving parties encounter insuperable obstacles. Judgments bind parties and their privies in representation and estate. The estate in land which is held by the party, against whom the judgment is rendered, and which is affected by the judgment while in his hands, is equally affected and bound, into whose soever hands it thereafter comes. And the law goes one step further, and binds all the estate held by such party at the commencement of the action, which was sold to a third person pendente lite with notice of the action. The rule declaring that the lis pendens was constructive notice to the purchaser from the defendant, and bound the estate in his hands, was borrowed from equity, and, after some changes, was incorporated into the statute. (Sears v. Hyer, 1 Paige, 483; Parks v. Jackson, 11 Wend. 442; Stuyvesant v. Hall, 2 Barb. Ch. 151; 1 Story Eq., Sec. 405; Bishop of Winchester v. Paine, 11 Ves. 197.)
Our statute first provided for a notice of lis pendens to be [263]given by the plaintiff, but in 1862 it was extended to the defendant, when he claimed affirmative relief. (Sec. 27.) The section, also, provides that “ from the time of filing only shall the pendency of the action be constructive notice to the purchaser or incumbrancer of the property affected thereby.”
The object of the rule in equity, or of that of the statute, was not to restrict the right of alienation of the prevailing party, but to hold the interest of the losing party subservient to the judgment. The party wishing the benefit of the notice must himself give it, and if he is successful he may disregard the alienations of his adversary, made subsequently to the filing of the notice. We do not understand that the defendants filed the notice. Their judgment, therefore, bound only the estate held by the plaintiff at the time of the rendition of the judgment. The inquiry whether the respondent had actual notice is unnecessary, for, by the terms of the statute, the notice filed with the Recorder is the only notice of the pendency of the action that will bind subsequent purchasers or incumbrancers. (Richardson v. White, 18 Cal; 102; Ault v. Gassaway, id. 205.) The suit not having been prosecuted by the respondents, nor for their benefit, and neither they nor their estate being bound by the judgment, it is impossible to see what right they have to attack it.
Order reversed and remittitur ordéred to issue forthwith.