asserting the power of courts by publication of summons in a creditors' bill to ascertain the amount of the debt and cause the same to be satisfied out of property in the state which the court has thereby drawn within its jurisdiction are: Day v. Washburn, 24 How. 352, 16 L. ed. 712; Heidritter v. Elizabeth Oil Cloth Co. 112 U. S. 294, 28 L. ed. 729, 5 Sup. Ct. Rep. 135; Boswell v. Otis, 9 How. 336, 13 L. ed. 164; Arndt v. Griggs, 134 U. S. 316, 33 L. ed. 918, 10 Sup. Ct. Rep. 557; Jennings v. Rocky Bar Gold Min. Co. 29 Wash. 726, 70 Pac. 136; Cooper v. Reynolds, 10 Wall. 308, 19 L. ed. 931; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; First Nat. Bank v. Gage, 93 Ill. 172, 175; Miller v. Sherry, 2 Wall. 237, 238, 239, 17 L. ed. 827.

3. Our understanding is that the creditor does not claim that the mere filing of a notice of lis pendens creates a prior lien, but he does say that the facts of filing of the complaint and the notice, considered and construed together and in connection with § 4902, Comp. Laws 1921, of our recording act, have that effect and make the sheriff's deed superior to the unrecorded deed of plaintiffs. Plaintiffs contend that the lis pendens affords protection only as against transfers made or rights otherwise acquired after, but not before, the institution of the creditors' bill. Cases so hold, and, speaking generally, the contention is correct. But the question of priority, as between the holder of a lien, that has merged into a judgment, procured after a deed is delivered, but before it is recorded, is not to be determined here by the effect of the filing of the complaint or the notice alone, but the combined effect of such filings in connection with our recording act. This act provides that all deeds and agreements in writing which affect the title to real estate or any interest therein may be recorded in the office of the recorder of the county where in the real estate is situate, "and from and after the filing thereof for

record in such office, and not before,

Records-prior

recorded deed.

shall take effect as to subsequent bona fide purchasers and encumbrancers by mortgage, judgment, or otherwise not having notice thereof." Bearing in mind that § 38 of our Code of Procedure specifically makes the filing of notice of lis pendens in a creditors' suit constructive notice from the date of its filing, and that the beginning of the chancery suit, in connection with the filing of the notice, creates or initiates from the time of filing the notice an equitable lien upon the property affected, and that our recording act, as between the holder of an unrecorded deed and the holder of an encumbrance such as an equitable lien, prefers the latter, we are of opinion that the rights of defendants, the holders of an encumbrance before plaintiffs' deed was ity of lis penplaced on record, dens over unare superior. In a recent case, Stetler v. Winegar, 75 Colo. 500, 226 Pac. 858, we had occasion to consider this question, and there held: "While as between immediate parties such agreements are. not affected or made void by a failure to file for record, such unrecorded instruments do not take effect against a subsequent bona fide purchaser [or encumbrancer] who has no notice thereof. There are statutes of other states which expressly declare that a failure to file for record such instruments renders them void. Our statute does not expressly so declare, but there is no difference, so far as affects the rights of subsequent purchasers without notice [and encumbrancers] between a statute which declares such instruments void and those declaring that they shall not take effect without a filing for record."

See also Cheever v. Minton, 12 Colo. 557, 13 Am. St. Rep. 258, 21 Pac. 710, and Western Chemical Co. v. McCaffrey, 47 Colo. 397, 135 Am. St. Rep. 234, 107 Pac. 1081. Such is the weight of authority under recording statutes like ours. Atchison County v. Lips, 69 Kan. 252, 76

· Pac. 851; Smith v. Worster, 59 Kan. 640, 68 Am. St. Rep. 385, 54 Pac. 676. In 17 R. C. L. p. 1030, § 26, the author says that apparently the weight of authority is that the holder of an unrecorded conveyance made before the commencement of an action cannot be regarded as a purchaser pendente lite. He immediately proceeds to say: "Other cases, however, maintain the reverse of this proposition, and they are undoubtedly correct, if they arose in states whose statutes in effect provided that an instrument not duly recorded should have no effect as against persons having no actual notice thereof."

In

We have only recently held in the Stetler Case, supra, that our statute in effect provides that an instrument not duly recorded shall have no effect as against subsequent purchasers and encumbrancers without actual notice. The same author, at page 1035, § 30, says that the day of filing of the notice of lis pendens is generally the day when the lien becomes effective, citing to this proposition the Cheever Case, above mentioned, of our own court. 23 R. C. L. p. 255, § 123, the same statements are found. See also Newman v. Chapman, 2 Rand. (Va.) 93, 14 Am. Dec. 766. In Bennett on Lis Pendens, §§ 295-297, citing Norton v. Birge, 35 Conn. 250, 263; Hoyt v. Jones, 31 Wis. 389, 397, and other cases, our conclusion is sustained. At § 275 the author says filing of creditors' bill constitutes an equitable levy. See also 25 Cyc. 1447 et seq. At page 1457 it is said that a creditors' suit creates a lien; and that the rule of lis pendens applies thereto, independent of the lien acquired by its institution. See also page 1463 and page 1480, where a conveyance is delivered before, but not recorded until after, the commencement of an action, the person taking it is a pendente

lite purchaser or encumbrancer. We conclude, therefore, that the plaintiffs' warranty deed is subject and inferior to the sheriff's deed of the defendants.

4. Our resolution of the foregoing propositions is decisive against the plaintiffs' further contention that they are not bound by the former judgment in the creditors' suit, because they were not parties thereto. Of course, the general rule is that persons not parties to an action are not bound by the judgment. ties and privies, however, are bound. JudgmentThe plaintiffs here grantees of deare privies to the creditors' suit. defendants in the

who bound

fendants in

Par

creditors' suit. The judgment against their grantors, to whom they are privies, binds them, even though not parties to the suit. The plaintiffs also are, as we have said, purchasers pendente lite, and are to be treated as such, and get nothing by their purchase made in law during pendente lite. the pendency of the suit, because their rights and interests in the property in controversy, if any, attached as against the plaintiffs after the latter had acquired a lien that afterwards ripened into a judgment under which they claim.

-purchasers

Our conclusion on the whole case is that the judgment in this case was wrong, and that the learned trial judge rightly made the former decree in the creditors' suit, which controls the rights of the parties. The judgment and decree in the instant case, therefore, must be reversed, and the cause remanded, with instructions to the District Court to set aside its decree quieting title in the plaintiffs. further proceedings as may be had below must be in accordance with the views expressed in this opinion. Teller, Ch. J., and Sheafor, J., con

cur.

Such

I. Scope and introduction, 269.

II. In general, 269.

III. Theory; nonexistence or exhaustion of remedy at law, 272.

IV. Where debtor is insolvent or has no property that can be reached at law, 278.

V. Where creditor has proceeded as far as possible by attachment, 281. VI. Possibility of reaching property by attachment, 282.

VII. Remedy in another jurisdiction, 284.

1. Scope and introduction. This annotation assumes as a starting point that, generally speaking, a general creditor must obtain a judgment at law before he can have relief in equity by way of a creditors' bill (see 8 R. C. L. 20), and seeks to determine whether, and to what extent, if at all, the fact that the debtor is a nonresident or is absent from the jurisdiction, operates to relax or abrogate this rule.

There is considerable apparent conflict of authority upon the question, not so much in regard to the principles involved, as their application to varying conditions, due in part to variations in the local statutes relating to suits of this character; in part to differences as to the circumstances under which, and the extent to which, relief may be had by attachment; in part to the fact that in many states the distinction between the jurisdictions of law and of equity has been done away with to a greater or less degree; and in part to a difference in views as to whether, or under what circumstances, the mere absence or inadequacy of a remedy at law will give jurisdiction to equity,-questions which are, of course, much broader in their scope than the particular subject of this annotation, and which, consequently, it is not proposed to consider herein except incidentally. So, too, although the decision of many cases set out herein turns upon whether the creditor had or had not a remedy by attachment or by action at law in an

(1915) 142 C. C. A. 70, 227 Fed. 374; Bank of Commerce & Trusts v. McArthur (1919) 167 C. C. A. 326, 256 Fed. 84, reversing (1918) 248 Fed. 138.

California. First Nat. Bank v. Eastman (1904) 144 Cal. 487, 103 Am. St. Rep. 95, 77 Pac. 1043, 1 Ann. Cas. 626; Lyden v. Spohn-Patrick Co. (1909) 155 Cal. 177, 100 Pac. 236.

Colorado.-SHUCK V. QUACKENBUSH (reported herewith) ante, 259; Hanscom v. Hanscom (1895) 6 Colo. App. 97, 39 Pac. 885; Livingston v. Swofford Bros. Dry Goods Co. (1898) 12 Colo. App. 320, 56 Pac. 351.

V.

District of Columbia.-Droop Ridenour (1896) 9 App. D. C. 95; Supplee Hardware Co. v. Driggs (1898) 13 App. D. C. 272.

Georgia.-Pope v. Solomons (1867) 36 Ga. 541.

Illinois. Greenway V. Thomas (1853) 14 Ill. 271.

Indiana. Kipper v. Glancey (1830) 2 Blackf. 356; Shaw v. Aveline (1854) 5 Ind. 380; Quarl v. Abbett (1885) 102 Ind. 233, 52 Am. Rep. 662, 1 N. E. 476.

Iowa.--Taylor v. Branscombe (1888),

74 Iowa, 534, 38 N. W. 400; Corn Exch. Bank v. Applegate (1894) 91 Iowa, 411, 59 N. W. 268; Gates v. McClenahan (1904) 124 Iowa, 593, 100 N. W. 479; First Nat. Bank v. Eichmeier (1911) 153 Iowa, 154, 133 N. W. 454; Ratekin v. Droge Elevator Co. (1920) 190 Iowa, 596, 180 N. W. 654.

Kansas. Parmenter V. Lomax (1903) 68 Kan. 61, 74 Pac. 634.

Kentucky. Scott v. M'Millen (1822) 1 Litt. 302, 13 Am. Dec. 239; Anderson v. Bradford (1830) 5 J. J. Marsh. 69. Michigan.-Earle v. Grove (1892) 92 Mich. 285, 52 N. W. 615; Coffey v. McGahey (1914) 181 Mich. 225, 148 N. W. 356, Ann. Cas. 1916C, 923.

Missouri. Pendleton v. Perkins (1872) 49 Mo. 565; Lackland v. Smith (1878) 5 Mo. App. 153; Webb v. Midway Lumber Co. (1896) 68 Mo. App. 546; Heaton v. Dickson (1910) 153 Mo. App. 312, 133 S. W. 159; De Field v. Harding Dredge Co. (1914) 180 Mo. App. 563, 167 S. W. 593; Wilkinson v. Harding Dredge Co. (1914) 180 Mo. App. 571, 167 S. W. 595.

Nebraska. - Kennard v. Hollenbeck (1885) 17 Neb. 362, 22 N. W. 771; Kimbro v. Clark (1885) 17 Neb. 403, 22 N. W. 788; Weaver v. Cressman (1887) 21 Neb. 675, 33 N. W. 478.

New York.-McCartney v. Bostwick (1865) 32 N. Y. 53, reversing (1860) 31 Barb. 390; Howarth v. Angle (1900) 162 N. Y. 179, 47 L.R.A. 725, 56 N. E. 489; Patchen v. Rofkar (1896) 12 App. Div. 475, 42 N. Y. Supp. 35; Patchen v. Rofkar (1900) 52 App. Div. 367, 65 N. Y. Supp. 122; Bateman v. Hunt (1905) 46 Misc. 346, 94 N. Y. Supp. 861.

Ohio.-Marion Deposit Bank v. McWilliams (1859) 2 Ohio Dec. Reprint, 142.

Rhode Island. Merchants' Nat.

75 Vt. 273, 54 Atl. 959. Virginia. Kelso v. Blackburn (1831) 3 Leigh, 299; Peay v. Morrison (1853) 10 Gratt. 149.

In a considerable number of cases, equity has refused to entertain a creditors' suit against a nonresident or absent debtor, where the claim had not previously been reduced to judgment, but the refusal has been based upon the possibility that the creditor might have had relief at law,-a position which, if not directly supporting the rule laid down supra, is, at least, not necessarily in conflict with it.

California. Lupton v. Lupton (1853) 3 Cal. 120; Roberts v. Buckingham (1916) 172 Cal. 458, 156 Pac. 1018; James v. Schafer (1924) App., 233 Pac. 70.

Cal.

District of Columbia.-Hess v. Horton (1893) 2 App. D. C. 81.

Illinois. Greenway v. Thomas (1853) 14 Ill. 271; Bigelow v. Andress (1863) 31 Ill. 322; Dewey v. Eckert (1871) 62 Ill. 218; Detroit Copper & Brass Rolling Mills v. Ledwidge (1896) 162 Ill. 305, 44 N. E. 751; Ladd v. Judson (1898) 174 Ill. 344, 66 Am. St. Rep. 267, 51 N. E. 838.

Kansas. Knox v. Farguson (1916) 97 Kan. 487, 155 Pac. 929. Missouri.-Dodd v. Levy (1881) 10 Mo. App. 121.

len (1860) 59 N. C. (6 Jones, Eq.) 17.

Rhode Island.-First Nat. Bank v. Randall (1897) 20 R. I. 319, 78 Am. St. Rep. 867, 38 Atl. 1055.

A few cases have taken the position that the nonresidence or absence of the debtor does not, in any degree, relieve the creditor of the necessity of reducing his claim to judgment before filing a creditors' bill or instituting a suit to set aside a fraudulent conveyance. Reese v. Bradford (1848) 13 Ala. 837; Sanders v. Watson (1848) 14 Ala. 198; Smith v. Moore (1859) 35 Ala. 76; Ladd v. Judson (1898) 174 Ill. 344, 66 Am. St. Rep. 267, 51 N. E. 838; Bethell v. Wilson (1837) 21 N. C. (1 Dev. & B. Eq.) 610; Evans v. Monot (1858) 57 N. C. (4 Jones, Eq.) 227.

Thus, in Sanders v. Watson (1848) 14 Ala. 198, the court said: "The rule, in the absence of statute law, seems to be universal that, if a creditor comes into a court of equity to reach real property fraudulently conveyed, he must show a judgment at law. ... I have not been able to find any case where the mere absence of the debtor from the country has been held to give a court of equity jurisdiction, independent of statute provisions; and, according to the general rule on the subject, if the matter was cognizable in equity, but the defendant was not within the jurisdiction of the court, no suit could be entertained, or relief afforded. .

And if a court of equity must look to statute aid to enable it to proceed against an absent defendant, when the subject-matter is properly within the jurisdiction of a court of equity, it would follow that the mere absence of a defendant from the jurisdiction could not enable a court of equity to take jurisdiction of a matter of pure legal cognizance, as the collection of a simple contract debt."

And in Reese v. Bradford (Ala.) supra, it was held that, in the absence of statute authorizing a court of equity to take cognizance of a mere legal demand and enforce the collection of it against property liable on execution at law, on the ground of the absence or nonresidence of the defendant, a simple contract creditor cannot

maintain a suit to set aside a conveyance as in fraud of creditors, unless he can show either a lien or that he has obtained a judgment at law the collection of which he cannot enforce without the aid of the court of equity.

And in Smith v. Moore (1859) 35 Ala. 76, where a bill was filed by a simple contract creditor having no judgment or lien, for the purpose of subjecting for the satisfaction of a promissory note certain moneys and property in the hands of a third person as trustee for the maker, the court said: "The law is settled in this state that the equity of the bill cannot be maintained upon the ground that the debtor resides in another state."

And so in Bethell v. Wilson (1837) 21 N. C. (1 Dev. & B. Eq.) 610, the court said: "A mere creditor cannot, in equity, pursue his debtors' property in the hands of a third person. In some states, we understand the attachment laws have been so modified as to authorize their courts of chancery to help creditors, before execution or judgment, to reach moneys due to, or property held for, nonresident debtors. Our state has not thought proper, and probably never will think proper, to confer this large and dangerous jurisdiction."

And in Evans v. Monot (N. C.) supra, where the plaintiff's bill was filed against a nonresident debtor and a domestic corporation in which the debtor was a stockholder for the purpose of discovering the number and value of shares of stock held by him, and subjecting them to the payment of the plaintiff's claim, it was stated that, independent of statute, the plaintiff would not be entitled to relief in the courts of equity of the state or any other state, since his was a mere legal demand; but it was intimated, although the court avoided expressly so holding, that he might have a remedy under a statute which amended the attachment law so as to give relief to a crea..or who was a citizen of the state, by enabling him to bring his bill in equity against a debtor residing beyond the limits of the state, and entitled to any personal estate or effects, or for the use thereof, in the hands of