Roach v. Riverside Water Co.

Hayne, C. Ejectment. On November 9, 1885, the plaintiff William Roach was the owner of the land in controversy. On that day the defendant herein commenced proceedings against him to condemn a right of way over the land for a public purpose, and on November 23, 1885, duly filed a notice of Us pendens. On March 22, 1886, the plaintiff Rufina Roach, who was the wife of William Roach, and who resided on the premises with him, filed a declaration of homestead thereon. On April 1, 1886, judgment of condemnation was rendered in pursuance of a stipulation, which was as follows:—

“ It is hereby stipulated by the respective parties that [265]plaintiff have judgment for the right of way over the land of defendant, as claimed in the complaint, and that defendant and his wife will execute a deed of said right of way in addition thereto to plaintiff upon plaintiff’s paying to defendant $925.” The plaintiff in said proceedings (defendant herein) paid said sum into court subject to the order of the plaintiff. It has not been withdrawn, but remains in the hands of the clerk for Roach, whose property it is.

The plaintiff Rufina Roach was not a party to the condemnation proceedings, and it is argued that she was not a purchaser or encumbrancer within the meaning of section 409 of the Code of Civil Procedure, which provides with reference to notices of lis pendens that “ from the time of filing such record only shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action. ”

This provision applies to condemnation proceedings. (Code Civ. Proc., sec. 1256.) And we think the words “ purchaser ” must receive a liberal construction, and be held to include those who have acquired a homestead interest in 4he property. Any other rule would enable parties to commit frauds.

We therefore advise that the judgment be affirmed.

Foote, C., and Belcher, C. C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.