Page:Harvard Law Review Volume 12.djvu/47

27 THE ELEMENT OF CHANCE IN LAND TITLE. 2/ (4) Declarations of the owner of land, made on the land, in dis- paragement of his title, — as, for example, admissions of an ease- ment upon it, — are admissible in some, if not all, of the States, as against subsequent owners, although not known to them when they purchased.^ It may well happen that the declarations were made by the person who alone knew the fact in question, and were made under such circumstances, and have such corroboration, that, if the making of them be proved, they will almost with certainty operate to limit the title. In many cases the situation is such that a given purchaser cannot protect himself against the possibility of such declarations having been made. In those cases he must take the title, so far, upon trust. And where the persons who may have made such declarations are living, the only way of covering the field with any certainty is to resort to depositions in perpetuam. (5) Under the rule of lis pendens, a court having jurisdiction of a cause which may affect by its judgment the title of land, has, as a necessary incident of jurisdiction, a right that the title shall not be interfered with until after opportunity for operation of the judg- ment ; and therefore, as against the judgment, a coTivQyz.ncc pendente liies of no effect, but the purchaser takes subject to the judgment. It is ordinarily the defendant whose grant pendente lite would, if effectual, interfere with the operation of the judgment; but it may be the plaintiff.^ Except in so far as this rule may, in respect of a given region, have been qualified, and effectually qualified, by statute, an examiner of title, to be exact, should search the records of all courts capable of jurisdiction, to see that there is no such pending suit. It is true that in many, and perhaps in all, of the States, it is provided that, to make lis pendens operative, there must be filed in the registry of deeds a notice of the suit. In Massachu- setts such a provision has been in force since 1877. It is believed, however, that prior to the passage of that act, it was never the practice in Massachusetts to take precautions against lis pendens, although the enactment of the statute was a confession that there had been an element of danger in that respect. But State lis pendens statutes of this class, while capable of affording effectual protection against suits pending within the courts of the State, are by no means completely effectual. A suit 1 I Greenleaf, Evidence, § 109 ; Blake v. Everett, i Allen, 248 ; Pickering v. Rey- nolds, 119 Mass. III. Fed. Rep. 736.
 * Pomeroy, Eq. Jurispr., par. 638; Henderson z/ Wanamaker, 25 C. C. A. 181 ; 79