Page:Federal Reporter, 1st Series, Volume 10.djvu/231

 BURaKSS V. OBAFFAM, 219 �The only remaining questions are whether Doble is a honafiie pur- chaser without notice; and whether the plaintiff can and ought to be permitted. to redeem the estate. By a recent statute of Massachu- setts a lis pendens is not to affect the title to real estate, except as to the parties to the suit, and volunteers and persons having actual notice, until a memorandum containing certain particulars of the suit has been recorded in the registry of deeds, and no such memo- randum was filed by the defendant. Whether this statute must govern the action of the circuit court in equity I do not now consider. Doble, in my opinion, is either not a purchaser, or he is one with notice. He bought the estate two or three days after the bill was filed for about one-fourth of its value ; the deed does not contain the true date, nor the true priee; and he had a written agrecment with Graffam, regulating their respective rights in case of litigation with this plaintiff within three years. The litigation wag already begun, to be sure, but he had notice that it was probable, and provided against that contingency. He is clearly a purchaser with notice, unless the whole contrivance was the cover of a sham sale, which I am inclined to think it was. �The bill is not framed as a bill to redeem, but all the facts neees- sary to such a bill have been pleaded and proved ; the technical de- fect is that the complainant does not ask for redemption, nor oiier to pay what is due. The court has full power to permit an amendment at this stage of the case, jf the facts authorize a redemption. Neale V. Neales, 9 Wall. 1. �The land was sold for about one-fif tieth part of its value, with all due f orm ; but it is not usual to sell land for so small a debt, when there are readier means for collecting it, by levy and extent, or by taking personal property. For this reason I do not think I ought to hold the complainant to have lest the estate by her negligence. She had no actual notice of the sale, and could have had none, except by some accident. She knew that her property might be taken to pay the debt ; but there is no evidence that she knew that, by the opera- tion of law, 50 times the debt was likely to be taken. �I hold, therefore, that through some failure of notice, not imput- able to the defendant Graliam, because he was not bound to give notice, and not imputable to the complainant, who happened to live in a distant city, she has lost lier estate by a harsh and intentionally undisclosed act of the defendant, though a disclosure was not legally obligatory. �Courts of equity were instituted to relieve against such mischances. ��� �