be sanctioned, the majority of the members of trustees were parties to the transaction. Unany club, or social, religious or benevolent so-der these circumstances, it was not necessary ciety, could, without winding up the concern, for the plaintiff to demand that they should divide up the funds whenever they felt in need take action. "The law does not require a of a little money. It does not appear that the useless act to be performed; and when it is plaintiff consented to the proceeding; he is not claimed, from the answer, that, if a demand shown to have been present at the meeting at had been made, it would have been refused, it which the resolution above quoted was "unan- does not lie in the mouth of the defendant to imously carried;" his name does not appear object that no demand was made." Parrott v. on the receipt above set forth; the resolution Byers, 40 Cal. 622, 623. See also Heath v. Erie offered by him at the meeting preliminary to R. Co. 8 Blatchf. 347; Morawetz, Priv. Corp. the sale seems to us to have been perfectly§ 395; 3 Pom. Eq. Jur. 10. proper; and his subsequent proceedings show, to his credit, that he was not a party to the transaction. It is argued for the respondents, however, that a member or stockholder cannot have re dress for any wrong or injury to the corporation until after he has exhausted all the means within his reach to obtain redress of his grievances. He must make an earnest effort with the managing body of the corporation." This is undoubtedly the general rule. But the complaint alleges that the trustees of the corporation "control and manage its affairs, and were parties to the said unlawful and fraudulent acts, being aided and abetted by the said other defendants members; that it would be futile and useless to make a demand upon said corporation defendant, or upon its trustees or officers, to commence a suit to obtain the relief which the plaintiff seeks, or any relief whatever." The answers deny that the trustees were ever parties to any unlawful or fraudulent transaction," but do not deny the remainder of the allegation; and from the whole case it is apparent that the defendants claimed the right to do what they did, and that the We see no material error in the admission of evidence; but, if there had been, it would not affect the result here. McCloud v. O'Neall, 16Cal. 397. The order appealed from is reversed, and the cause is remanded for a new trial. J. We concur: McFarland, J.; Thornton, A petition for rehearing was subsequently granted, and on May 3, 1890, Sharpstein, J., delivered the opinion of the court: This appeal was heard in Department 2, which reversed the judgment and order of the court below. An opinion was filed November 22, 1889. Afterward a petition that the cause be heard in bank was filed and granted and the case has been argued in bank, but the argument has failed to convince us that the decision of the department was erroneous; and for the reasons stated in the opinion of the department the judgment and order appealed from are reversed. We concur: Works, J., Thornton, J., Paterson, J. OHIO SUPREME COURT. Lewis BENTON et al., Plffs. in Err., V. Mary J. SHAFER. (......Ohio St.......) *1. A mortgagee of real property not part of an entire tract situate in more *Head notes by the COURT. NOTE.-Notice; lis pendens. Two things seem indispensable to give effect to the doctrine of lis pendens: (1) that the litigation must be about some specific thing which must necessarily be affected by the termination of the suit; and (2) that the particular property involved in the suit must be so definite in the description that anyone reading it can learn thereby what property is intended to be made the subject of litigation.| Houston v. Timmerman, 17 Or. 499. Notice of lis pendens does not take effect until service of process, or its publication in case of an absent defendant. Cassidy v. Kluge, 73 Tex. 154; Tharpe v. Dunlap, 4 Heisk. 674; Skeel v. Spraker, 8 Paige, 189; Murray v. Finster, 2 Johns. Ch. 155; Heatley v. Finster, 2 Johns. Ch. 158. The doctrine of lis pendens operates as notice only from the time the complaint is filed and summons is served, and of such facts as are alleged in the pleadings, which are pertinent to the issue, and than one county, will not be charged with constructive notice of an action for the recovery of such property, pending in a county other than that in which the property is situated. 2. The doctrine of lis pendens does not apply, unless the court has acquired, in some manner, jurisdiction of the subject matter involved in the suit. Where, therefore, in an action to recover real property which is not an entire tract situate in more than one county, of the contents of exhibits. Walker v. Goldsmith, While strangers to the record are not affected with constructive notice of the pendency of an action involving the title to land lying in another county, unless the notice required by N. C. Code, § 29, 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 they take title subject to the final decree rendered in the action. Spencer v. Credle, 102 N. C. 68 but a separate tract lying wholly in one county, the action is not brought in the county where the subject of the action is located, a bona fide purchaser of the property for a valuable consideration, without actual notice, and residing in the county where the property is situated, will not be charged with constructive notice of the pendency of such action at the time of his purchase, so as to prevent his acquiring a valid interest in the property. law of Phebe Benton instituted proceedings in the Court of Common Pleas of Union County, Ohio, for partition of the premises described in the petition; and that at a public auction in partition be, Lewis Benton, became the pur chaser of the premises, and afterwards sold them to Aaron Clover, who entered into possession of the same. Aaron Clover and Nancy Clover, by their joint answer to the petition, set up the purchase from Lewis Berton, and prayed that their title might be protected. 3. The heirs of P. brought an action in the Court of Common Pleas of Union County to partition two tracts of land situated respectively in Union County and Delaware County, and also, to set aside a deed, duly recorded, from P.. to D. and L., of the Delaware tract, and to recover the same. The land in Union County was not an entire tract with the land in Delaware County, but the two were separate tracts, one situated entirely in Union County, and one entirely in Delaware County. While the action was pending in the court of common pleas, and be-owned in fee simple the undivided forty-eighth fore the rendition of final judgment in the case, D., one of the defendants, mortgaged his interest in the Delaware tract to M., who was, at the date of the commencement of the action, and ever since has been, a resident of Delaware County. M. had no actual notice of the pendency of the action, at the time of taking the mortgage; was not a party to the action; and the final judgment rendered in the action was never recorded in Delaware County. Held, that under § 5055 and 5056 of the Revised Statutes, M. was not charged with constructive notice of the pendency of the action, so as to be prevented from acquiring an interest in the subject matter thereof covered by the mortgage, as against the title of the parties to the pending litigation. (March 4, 1890.) RROR to the Circuit Court for Delaware in The court of common pleas found that the mortgage from Daniel S. Benton to Mary J. Shafer was the first and best lien on an undivided forty eighth part of the 1224 acres of land; that Daniel S. Benton did not have any title to the premises in the petition described, by virtue of the deed from Phebe Benton to Daniel S. Benton and Lewis Benton, but part of the premises, as Leir-at-law of Phebe Benton, at the time he executed the mortgage to Mary J. Shafer; that the condition of defeasance in said mortgage had been broken, and that Mary J. Shafer was thereby entitled to have the defendants' equity of redemption foreclosed. The plaintiff excepted to the judgment of the court of common pleas, and appealed to the circuit court. In the circuit court the cause was submitted on the pleadings, and the evidence embodied in an agreed statement of facts, which is as follows: It is agreed by the parties in this action: That a case was commenced and prosecuted in Union County, Ohio, in which Stephen Cranston and others, heirs-at-law of Phebe Benton, deceased, were plaintiffs, and Orson plaintiff, rendered upon appeal from the Court others were defendants, by petition filed Janof Common Pleas, in an action brought to fore-uary 17, 1880, in which the plaintiff sought to close a mortgage. Affirmed. Statement by Dickman, J.. The defendant in error, Mary J. Shafer, filed her petition in the Court of Common Pleas of Delaware County, against Daniel S. Benton and the plaintiffs in error, Lewis Benton, Aaron Clover and Nancy Clover, asking for the foreclosure of a mortgage made to her Oc tober 28, 1882, by Daniel S. Benton, on the one undivided fourth part of 1224 acres of land in Delaware County, Ohio, described in a deed dated August 9, 1878, from Phebe Benton to Lewis Benton and Daniel S. Benton, in which she conveyed to them the undivided half part thereof. The mortgage was given to secure the payment of Daniel S. Benton's note for $571.28, dated October 17, 1882, payable one year after date, with interest at 8 per cent per annum, and was duly recorded in Delaware County, November 23, 1882, in vol. 28, p. 149, of the Records of Mortgages. Daniel S. Benton was in default for answer and demurrer. The defendant, Lewis Benton, set forth in his answer to the petition, that Daniel S. Benton was not the owner of the one-fourth part of the real estate described in the petition, but, as one of the heirs-at-law of Phebe Benton, was the owner of only one forty-eighth part thereof; that in January, 1850, the heirs-at set aside the deed of conveyance made by Phebe Benton to said Daniel S. and Lewis Benton of the tract of land in Delaware County, Ohio, upon which Mary J. Shafer holds the mortgage which she seeks to foreclose in the action at bar, and also to recover the said real estate situate in Delaware County, Ohio, and the partition of the same among the heirs of said Phebe Benton, deceased. Also in the same action was sought the partition of another tract of land in Union County, Ohio, among said heirs. And that the land in Union County, Ohio, is not a continuous or entire tract with the said land in Delaware County, Ohio, but are separate and independent tracts several miles apart. The land in Delaware County is in Virginia Military Surveys Nos. 2516 and 2897, and the land in Union County in Virginia Military Survey No. 4404. That Mary J. Shafer was not a party to said action in Union County. That the suit in Union County was pending when Daniel S. Benton executed and delivered the mortgage to Mary J. Shafer on the lands in Delaware County, but the final decree in said action was not rendered until March 10, 1883, in the District Court of Union County, on appeal from the decision of the court of common pleas where judgment had been rendered in favor of said Lewis and Daniel S. Benton, sus taining the validity of said deed from Phebe Benton to said Daniel S. and Lewis Benton, of the said land in Delaware County. The decis ion of said common pleas court was rendered May 13, 1881, and on appeal from said common pleas court the district court rendered the following decision March 10, 183 viz.: "On consideration whereof the court do find that the equity of the case is with the plaintiff and cross-petitioners, and that the deeds of conveyance mentioned in the pleadings from Phele Benton to Orson Benton, Lewis Denton and Daniel S. Benton, dated August 9, 1878, should be set aside and held for uaught; and therefore it is ordered, adjudged and deciced by the court that said deeds of conveyance be and they are hereby set aside and held for Daught, and said estate of Hiram and Phebe Benton is hereby ordered to be partitioned and settled the same as if said deed had never been made." And finding and decreeing among other things that the interest of Daniel S. Benton, as one of the bears of said Phebe Benton in the land in Delaware County, was one forty-eighth part, which amounted to $84.73, net proceeds, and ordered the partition be made of said premises. Which judgment was affirmed by the supreme court and certifica to the Court of Union County, and the commissioners of partition in said case, appointed by said court, baving reported the premises not susceptible of division, Le court thereupon ordered said premises to be sold by the sheriff, which was accordingly done, and Lewis Benton became the purchaser at said sale of said tract of land in Delaware County, consisting of 1224 acres, and received his deed for the same, and afterward conveyed the same to Aaron Clover, defendant, and the proceeds of the sale, by the sheriff aforesaid were distributed according to the order of the Union County Court to said heirs of Phele Benton, deceased, and as one of said heirs, to Daniel S. Benton, one forty-eighth part. The above record of facts is admitted so far as the record thereof may be competent evi dence in the trial of this case. And it is further admitted as a fact in this case that I bebe Benton is the person who made the deed of conveyance of the undivided one half of said land in Delaware County, Ohio, of which she had the title in fee simple, and that she died August 26, 1879. or the proceedings or decree rendered therein, are not recorded in Delaware County, Ohio. Mary J. Shafer's mortgage, it is agreed, is dated October 28, 1882, filed for record November 11, 1832. It is also agreed that it is a fact that the plaintiff, Mary J. Shafer, was, at the date of the commencement of the action in Union County, and ever since has been, a resident of Delaware County, and never a resident of Union County. And that she had no actual notice in fact, other than the notice which is presumed in law, of the pendency of said suit in Union County, or of the proceedings therein, when Daniel S. Benton executed and delivered toher the note and mortgage in suit. Upon the aforegoing agreed statement of facts, the finding and judgment of the circuit court were as follows: "The court find on the issue joined between the plaintiff and the defendants that the equity of the case is with the plaintiff. And the court find that the defendant, Daniel S. Benton, has been duly served with notice by publication, according to law, of the pending of this action, and is in default for answer and demurrer, and that the allegations of the petition as to him are thereby confessed by him to be true. And the court do further find all the other issues between the plaintiff and said defendants, LewisBenton and Aaron and Nancy Clover, in favor of the plaintiff and against the said defendants. And that there is due the plaintiff from the defendant, Daniel S. Denton, on the promissory note set forth in the petition, with the interest thercon to the first day of this term, to wit, December 14, 1886, the sum of $761.44, with interest at 8 per cent from that date. "The court further find that in order to se cure the pay n.ent of said note and interest, the said Daniel S. Benton executed and delivered to said Mary J. Shafer, plaintiff, bis certain mortgage as in the petition described, and on the premises therein described. That said mortgage was duly recorded in volume 28, page 149, etc., November 23, 1882, in the Records of Mortgages of Delaware County, Obio, and is a valid lien on the premises in the petition described, and that the conditions in said mortgage have been broken and said deed has become absolute. "It is therefore adjudged and decreed by the court that unless the defendant, Daniel S. BenAnd it is admitted as a fact that the deed ton, shall within Live days from the entry of made by said Phebe Denton to Daniel S. Ben-this decree pay or cause to be paid to the clerk ton and Lewis Denton is a general warranty deed, purporting to convey the undivided one balf of said land in Delaware County to said Daniel S. and Lewis Benton, their heirs and assigus in fee simple, and that the date of said deed is August 9, 1878, and the same was filed in the recorder's oflice of Delaware County, and recorded in volume 12, pages 33 and 34, August 27, 1878, Record of Deeds of Delaware County, and under which deed Lewis and Daniel S. Benton went into possession, and under which title Mary J. Shafer claims her rights in this action as well as to whatever title the said Daniel S. Benton had as one of the heirs of Phebe Benton, deceased. It is further admitted as a fact that the record of the pendency of said suit in Union County, of the court of common pleas, to which this case is remanded for further proceedings, the costs of this case, and to the plaintiff herein the sum of $761.44, so found due as aforesaid, with interest at 8 per cent from the 14th day of December, 1886, the defendant's equity of redemption be foreclosed and said premises be sold, and that an order of sale issue therefor tothe sheriff of Delaware County, Ohio, directing him to appraise, advertise and sell said premises as upon execution, and report his proceedings to the Court of Common Pleas of Delaware County, Ohio. "It is further ordered that this cause be remanded to the Common Pleas Court of Delaware County, Ohio, to carry this decice into execution and for all further proceedings." To all of which findings, rulings and judg. | may be had in any county wherein a part of ment, the defendants did at the time, by their such estate is situated, and also in actions to counsel, except, and thereupon the defendants recover real property when the property is an filed a motion for a new trial, for reasons set entire tract, yet, in partition, each tenant in forth in said motion, which motion was over-common, coparcener or other interested perruled by the court, to which the defendants did at the time except. son, is entitled to be named as defendant therein; and in an action to recover real property in an entire tract and situate in more than one county, all persons claiming title to or an in This proceeding in error is prosecuted to reverse the judgment of the circuit court. Messrs. Jones & Lytle, for plaintiffs interest in the property may be made defendants. error: He who purchases during the pendency of a suit is bound by the decrce that may be made against the persons from whom he derives title. Conceding that all the proper parties were before the court at the commencement of the action in Union County, and up to the time when Mary J. Shafer received her mortgage from Daniel S. Benton, the question arises, whether, upon the agreed facts in the present case, she is to be concluded by the judgment rendered in the Union County action. To that Wells, Res Adjudicata, $32, and authorities cited; Shirley v. Fearne, 33 Miss. 666; Com. v. Diefenbach, 3 Grant, Cas. 375, citing Bishop of Winchester v. Paine, 11 Ves. Jr. 197; Metrop-action she was not a party; at the date of its olis Nat. Bank v. Sprague, 21 N. J. Eq. 535; Walker, Am. Law, p. 419, and note c. By the doctrine of lis pendens it is well set tled that a purchase made of property actually in litigation pendente lite for a valuable con sideration, 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 be bound by the judgment or decree in the suit. Metropolis Nat. Bank v. Sprague, supra; 1 Story, Eq. par. 405, and authorities cited, note 1 (a): Bishop of Winchester v. Paine, supra; Green v. Rick, 121 Pa. 130; Newman v. Chapman, 2 Rand, 93, 14 Am. Dec. 774-779, note. The judgment in a real action overreaches an alienation after writ. commencement and ever since she has been a resident of Delaware County; and she had no actual notice of the suit in Union County, or of the proceedings therein, when Daniel S. Benton executed and delivered to her the note and mortgage in litigation. She took her mortgage after searching the records of Delaware County, where she found the deed from Phebe Benton to Daniel S. Benton duly recorded, and no record of any lien or pending suit affecting the title of the Delaware County land. The decision of the Court of Common Pleas of Union County was rendered May 13, 1881, and the final decree in the action was rendered on appeal, March 10, 1883, by the district court. The mortgage to Mary J. Shafer bears | date October 28, 182, and was filed for record Dennet v. Williams, 5 Ohio, 462; Hamlin v. Berans, 7 Ohio (pt. 1) 1C1; Toierton v. Williard, | November 11, 1882. It is contended, therefore, 30 Ohio St. 579. Mr. J. Hipple, for defendant in error: Rev. Stat. $$ 5022, 5023. that, notwithstanding the facts in the case, as the suit in Union County was pending when Daniel S. Benton executed and delivered to her the mortgage on the lands in Delaware County, she acquired no interest in the subject matter of the suit, as against the title of Lewis Benton, the purchaser at the partition sale, and the other plaintiffs in error. A judgment rendered by a court having no jurisdiction of the subject matter or of partics is void and may be shown in any collateral or other procceding in which it is drawn in ques-unmodified by statute, would seem in some intion. Gilliland v. Sellers, 2 Ohio St. 223; Buchanan v. Roy, 2 Ohio St. 251, 269; Rohn v. Dunbar, 13 Ohio St. 572; Evans v. Iles, 7 Ohio St. 233; The General Buell v. Long, 18 Ohio St. 521. Dickman, J., delivered the opinion of the court: The object of the suit in Union County was to set aside the deed of conveyance, executed by Phebe Benton to Daniel S. Benton and Lewis Benton, of the tract of land in Delaware County, upon which Mary J. Shafer holds the mortgage in controversy, also, to recover the real property embraced in the mortgage, and to cause partition of the same to be made among the heirs of Phebe Benton. In the same suit, partition among the same heirs was sought of another tract of land, situated in Union County. The land in Union County is not a continuous and entire tract with the land in Delaware County, but the two are separate and independent tracts, several miles apart. Although when the estate is situated in two or more counties, proceedings for partition The rule concerning the effect of lis pendens, stances stern and inequitable in its operation. In Bellamy v. Sabine, 1 De. G. & J. 566, it was said by Turner, L. J.: "It is not correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him, not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.' And yet the doctrine of notice has not been eliminated in determining the effect of alienating property in dispute, peuding the litigation. But, the rule concerning constructive notice by lis pendens has always been regarded by the courts as a harsh one in its application to bona fide purchasers for value. In Hayden v. Bucklin, 9 Paige, 512, Chancel lor Walworth said: "This common-law rule of requiring purchasers at their peril to take notice of the pendency of suits in courts of justice, for the recovery of the property they are about to purchase, although it is nearly impossible that they should actually know that such suits | fected, a purchaser is not presumed to have have been commenced, has always been con- such knowledge of the pending action or prosidered a hard rule, and is by no means a ceedings leading to the judgment, and hence favorite with the court of chancery." The the Statute requires the judgment to be restringency of the rule has led the English Par- corded in such county before it can operate liament and the Legislatures of many States therein as notice to a purchaser, as provided in to interfere, resulting in most material statutory the preceding § 5055 of the Revised Statutes. modifications and restrictions. An example of In the case at bar, it is among the agreed such legislation is found in the English statute fac's that the proceedings, or decree rendered, which provides that a pending suit will not in the suit in Union County, have not been reaffect a purchaser for value and without ex-corded in the County of Delaware. press notice, unless a notice of lis pendens has been properly registered in compliance with the statutory directions. Stat. 2 and 3 Vict. chap. 11, 7; Pom. Eq. Jur. §§ 639, 640. Our own statutory provisions are found in $ 5055 and 5056 of the Revised Statutes. Section 5055 reads as follows: "When the summons has been served or publication made, the action is pending so as to charge third per sons 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." If the purchaser of a tract of land situated entirely in the county of his domicil, who has no actual notice or information of any judicial proceedings in any county in reference to such land, searches the records of the county where the land is located, and finds no pending proceedings, judgment liens or other incumbrances affecting the title to the same, it is not the intent of the Statute that such purchaser shall be compelled to examine the records of the courts of every county in the State, to find whether a suit is pending that would affect the title. And the section of the Statute now under consideration, in the protection of the innocent purchaser for value and without actual notice, accordingly provides that a judgment rendered in a county other than that in which the purchased part of the land lies shall be recorded in the county where such land is situated, before it shall operate therein as notice of the pendency of an action in the county where such judgment was rendered. Under this section, if the land mortgaged to Mary J. Shafer had been situated in Union County instead of Delaware County, she would have taken the mortgage with constructive notice of the pending litigation, and would have acquired no interest in the property, as against the title of the plaintiffs in the action. The general rule is that, as to real property located within the jurisdiction of the court where its judgments and decrees may become But the doctrine of lis pendens, which has or be made liens upon the property, all men been invoked in behalf of the plaintiffs in ermust take notice of and be bound by the pendror, rests upon the jurisdiction of the court ing litigation without regard to residence. But a mortgagee of real property not part of an entire tract situate in more than one county, will not be charged with constructive notice of an action for the recovery of such property, pending in a county other than that in which the property is situated. Section 5056 of the Revised Statutes, on the subject of lis pendens as to suits in other counties, provides as follows: "Wher any part of real property, the subject matter of an action, is situate in any county or counties other than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the recorder's office of such other county or counties, before it shall operate therein as notice so as to charge third persons as provided in the preceding section; but it shall operate as such notice, without record, in the county where it is rendered." By this section of the Statutes, where part of the real property in litigation is located in the county where the action is brought, and part in another county, the judgment, in the county where it is rendered, is made to operate as notice of the pending of the action, without record. In the county where the action is brought and judgment rendered, and the real property or a part thereof is situated, it is presumed, under the Statute, that a purchaser of the subject matter of the suit situated in that County has knowledge of the prior proceedings upon which the judgment is founded, without regard to its record. But in a county where the action is not brought, and the judgment is not rendered, and the title to real property therein located is sought to be changed or af over the subject matter involved in the suit. "To make the pendency of a suit notice, so as to affect the conscience of a purchaser, it is essential that the court have jurisdiction over the thing.' McLean, J., in Carrington v. Brents, 1 McLean, 167. In Jones v. Lusk, 2 Met. (Ky.) 356, it is said by Duvall, J.: “ Unless the petition shows upon its face a case for the jurisdiction of the chancellor, the proceeding cannot operate as a lis pendens, even from the date of the service of process, so as to affect the property sought to be subjected, or to overreach a subsequent sale or other disposition of it.” See also Fonbl. Eq. B. 2, chap. 6, § 3, note n; Sorrell v. Carpenter, 2 P. Wms. 482; Worsley v. Earl of Scarborough, 3 Atk. 392; Bishop of Winchester v. Paine, 11 Ves. Jr. 194; Murray v. Ballou, 1 Johns. Ch.566; Bennett, Lis Pendens, 98– 100. It is true that the action in Union County was to have partition of lands lying in that county, and also in Delaware County; and when the estate to be partitioned is situated in two or more counties, the proceedings, as before observed, may be had in any county wherein a part of such estate is situated. But, the purpose of that action, as appears from the agreed statement of facts, was also to set aside the deed of conveyance made by Phebe Benton to Daniel S. Benton and Lewis Benton, of the tract of land in Delaware County mortgaged to Mary J. Shafer, "and to recover the said real estate situated in Delaware County." By 5023 of the Revised Statutes, "when the property is situated in more than one county, the action may be brought in either; |