the prosecution as cannot be explained and appears to be inexcusable. Mere lapse of time does not indicate such neg ligence. If the cause finally goes to decree or judgment it will be presumed, in the absence of any showing that there has been a negligent intermission of the prosecution, that there has been a binding lis pendens, and that intervenors pendente lite are bound by the decree or judgment. As a general rule there will be no estoppel against the right to enforce the lis pendens, unless the plaintiff or complainant in the suit has been so negligent in its prosecution as to induce the belief that such prosecution had been abandoned: Bennett on Lis Pendens, 173, 180; 13 Am. & Eng. Ency. of Law, 889891. In the present case we find nothing in the record to show that there was any such negligence in the prosecution of the foreclosure suit as to overcome the presumption of a binding lis pendens.

It is still further insisted by the appellant that, by reason of the amended bill filed on January 17, 1870, a new lis pendens was created from that time, which could not affect the interests acquired by the grantee in the previous deed of 1868. There are cases where the lis pendens will begin with the filing of the amendment, and will 204 not relate back to the commencement of the action, so as to affect intervening rights. This, however, is only true where the amendment Bets up a new equity, or where the party making the amendment brings forward a new claim, or a different and distinct ground of relief, not before asserted: Bennett on Lis Pendens, 97, 160; Tilton v. Cofield, 93 U. S. 163; Bank v. Sherman, 101 U. S. 403; Stoddard v. Myers, 8 Ohio, 203; Gibbon v. Dougherty, 10 Ohio St. 365; S. C. Hall Lumber Co. v. Gustin, 54 Mich. 624; 1 Freeman on Judgments, sec. 199; Bradley v. Luce, 99 Ill. 234; Stone v. Connelly, 1 Met. (Ky.) 652; 71 Am. Dec. 499; Worthman v. Boyd, 66 Tex. 401. Purchasers pendente lite must take notice of every thing averred in the pleadings pertinent to the issue or to the relief sought: Center v. P. & M. Bank, 22 Ala. 757; Allen v. Poole, 54 Miss. 323; Worthman v. Boyd, 66 Tex. 401; 13 Am. & Eng. Ency. of Law, 886.

The only new matter to which counsel refer as being set up in the amended bill of 1870 is the contract between the county and Vanduzer, Smith & Co. to build a railroad through the county, etc: Kenicott v. Supervisors, 16 Wall. 452; Scates v. King, 110 Ill. 456. No relief was asked under this contract.

No new cause of action was set up different from that stated in the bills of 1865 and 1866. The contract was simply evidence of the power of the county to execute the mortgage and trust deed. The bills already filed had alleged the execution of the mortgage by the county, in pursuance of an order of the county court, for the purpose of aiding in the construction of a railroad, and had asked for a foreclosure of the mortgage. Such, also, was the scope and character and prayer of the bill of 1870. The mere pleading of a matter of evidence did not change the essential features of the case made by the bills already filed. We do not think that there was any thing in the amendment of 1870 which prevents the lis pendens from relating back to the filing of the amended bills in 1866, and subjecting the interests acquired by the deed of 1868 to the operation of the foreclosure decree.

205 Counsel for appellant urge upon our attention various reasons why the complainants in the foreclosure suit were chargeable with notice of the execution of the deed of 1868, and of the rights of those holding under it. Where there is a purchase pendente lite, not only is the purchaser bound by the decree that may be made against the person from whom he derives title, but "the litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the suit": 1 Story's Equity Jurisprudence, sec. 406. He is not a necessary party, because his vendor or grantor continues as the representative of his interests, and the plaintiff or complainant may ignore his purchase and proceed to final decree against the original parties: Edwards v. Norton, 55 Tex. 405; Smith v. Hodsdon, 78 Me. 180; Carter v. Mills, 30 Mo. 437; Steele v. Taylor, 1 Minn. 274; 13 Am. & Eng. Ency. of Law, 900, 901. It is, therefore, immaterial whether the complainants in the foreclosure suit had notice of the deed of 1868 or not.

Counsel for appellant rely upon payment of taxes and possession for seven successive years under the deed of 1868 as color of title. This statute could not be invoked against the complainants in the foreclosure suit by the county of Wayne, or its grantee, during the pendency of the suit. While the relation of mortgagee and mortgagor continues, neither party in possession can interpose the statute of limitations as a defense against the other. The statute can only commence to run after that relation has been terminated in some of the modes known to the law: Rockwell v. Servant, 63 Ill. 424.

The mortgagor cannot defeat the mortgagee's right of action by retaining possession and paying taxes for seven successive years; and it is as much the duty of a grantee of the mortgagor, receiving his possession from the mortgagor, to pay the taxes upon the property as it is the duty of the mortgagor himself to do so. The limitation law of 1839 has no application to such a case: Hagan v. Parsons, 206 67 Ill. 170; Palmer v. Snell, 111 Ill. 161. Nor does the statute of limitations run in favor of a purchaser pendente lite. Such a purchaser in possession of land so purchased will not be regarded as holding it adversely to the parties to the suit during the litigation: Lynch v. Andrews, 25 W. Va. 751. In the present case the sale under the decree of foreclosure was not made until September 18, 1877, and the time of redemp. tion did not expire until December 18, 1878. Not until the latter date was the purchaser under the foreclosure decree entitled to a master's deed, nor until that date could the mortgagor or his grantee assert an adverse possession: Emmons v. Moore, 85 Ill. 304; Lehman v. Whittington, 8 Ill. App. 374. The proof does not show a payment of taxes for seven successive years after December 18, 1878, or after September 18, 1877, by the grantee in the deed of 1868, or by any of the parties holding under that deed. We cannot discover that appellant, or any of his grantors, have acquired title under the limitation law, which provides for possession and payment of taxes for seven successive years under color of title.

The considerations already presented dispose of the claim that title was acquired under the first section of the limita tion law in regard to possession for twenty years. Whatever possession the grantee in the deed of 1868, or those holding thereunder, may have had during the period of ten years from 1868 to 1878, whether such possession is claimed under the seven years' limitation or under the twenty years' limitation, was not adverse to the mortgagees prosecuting the foreclosure suit against the county, but was subordinate to their rights. After deducting the time during which the foreclosure suit was pending there was no adverse possession for twenty years by appellant, or any of his grantors, near or remote. The proof does not show any such possession as meets the requirement of the statute in regard to twenty years' possession. Where the possession of land alone 207 is relied upon for any legal purpose, in the absence of paper title, it should be a pedis possessio, an actual occupancy of the premises in

question, and not a mere constructive possession: Webb v. Sturtevant, 1 Scam. 181; Illinois Mut. Fire Ins. Co. v. Marseilles Mfg. Co., 1 Gilm. 236; Medley v. Elliott, 62 Ill. 532; City of Champaign v. McMurray, 76 Ill. 353; Schneider v. Botsch, 90 111. 577. Under the first section of the limitation law, which provides that real actions for the recovery of land must be brought within twenty years, etc., no deed or paper title is necessary; it is sufficient to take possession under a claim of ownership: Weber v. Anderson, 73 Ill. 439; Shaw v. Schoonover, 130 Ill. 448.

The judgment of the circuit court is affirmed.

LIS PENDENS-RIGHTS OF PURCHASERS.-One who purchases of either party to a suit the subject of the litigation, after the court has acquired jurisdiction, is bound by the judgment or decree: Houston v. Timmerman, 17 Or. 499; 11 Am. St. Rep. 848; Green v. Rick, 121 Pa. St. 130; 6 Am. St. Rep. 760; Cheever v. Minton, 12 Col. 557; 13 Am. St. Rep. 258, and note; Henderson v. Pickett, 4 T. B. Mon. 54; 16 Am. Dec. 130; Williams v. Kerr, 113 N. C. 306.

LIS PENDENS WHEN BEGINS.-Under the Kentucky statute an equi. table lis pendens is acquired in a suit to subject specific property to the payment of a debt by filing a petition and serving summons: Rothschild ▼. Kohn, 93 Ky. 107; 40 Am. St. Rep. 184, and note with the cases collected. See, also, Kellogg v. Fancher, 23 Wis. 21; 99 Am. Dec. 96, and note.

LIS PENDENS-WHAT CONSTITUTES VALID.-To constitute a valid lis pendens, the property sought to be affected must be such that its title will be immediately affected by the judgment; the court must have jurisdiction both of the person and the property, and the property must be sufficiently described in the proceedings: Leavell v. Poore, 91 Ky. 321. To the same effect, see Houston v. Timmerman, 17 Or. 499; 11 Am. St. Rep. 848.

LIS PENDENS DESCRIPTION OF PROPERTY.-SUFFICIENCY OF: See the note to Newman v. Chapman, 14 Am. Dec. 779.

LIS PENDENS AMENDMENT OF COMPLAINT-EFFECT OF.-The effect of a notice of lis pendens is not ordinarily destroyed by an amendment to the complaint: Brock v. Pearson, 87 Cal. 581. An entirely new lis pendens is created by an amendment of the petition by which new matter is brought into the suit, and such lis pendens is not permitted to relate back to the commencement of the action so as to affect intervening rights: Stone v. Connelly, 1 Met. 652; 71 Am. Dec. 499. See, also, the note to Pearson v. Keedy, 43 Am. Dec. 164.

LIS PENDENS-EFFECT OF LACHES IN PROSECUTION OF SUIT.-The institution of suit by a creditor gives a specific lien upon the property which he seeks to subject to his judgment; but, to entitle him to the benefit of the rule, he must use something like reasonable diligence in the prosecution of the suit: Watson v. Wilson, 2 Dana, 406; 26 Am. Dec. 459, and note; Trimble v. Boothby, 14 Ohio, 109; 45 Am. Dec. 526, and note. The benefit of the rule relating to lis pendens may be lost by such long continued inaction as amounts to gross negligence in the party prosecuting to the preju dice of innocent persons: Fox v. Reeder, 28 Ohio St. 181; 22 Am. Rep. 370.

A purchaser pendente lite is not affected by a suit pending, unless it has been prosecuted with due diligence, if he buys in good faith, and without notice of the claims of the litigants: Hayes v. Nourse, 114 N. Y. 595; 11 Am. St. Rep. 700. In Gossom v. Donaldson, 18 B. Mon. 230; 68 Am. Dec. 723, it was held that the benefit of lis pendens is not lost by failure to prosecute a suit with even ordinary diligence, but it can only be lost by un usual and unreasonable negligence in its prosecution.

JUDGMENTS IN FORECLOSURE PROCEEDINGS AS RES JUDICATA: See O'Brien v. Moffitt, 133 Ind. 660; 36 Am. St. Rep. 566, and note; and Jones v. Vert, 121 Ind. 140; 16 Am. St. Rep. 379, and note.

FIRST NAT. BANK v. NORTHWESTERN NAT. BANK

[152 ILLINOIS, 296.]

PRACTICE. THE STATUTE AUTHORIZING PARTIES TO SUBMIT WRITTEN PROPOSITIONS OF LAW TO THE COURT to be accepted as law in the decision of the case does not contemplate that, under cloak of submit. ting such propositions, a litigant shall have the right to call upon the court to find in his favor on the special or particular facts involved in the evidence, but the court may be asked to rule that, as a matter of law, the judgment should be in favor of the party asking such rul. ing. To request such a ruling is equivalent to demurring to the evidence.

BANKING.-A CHECK PAYABLE TO ORDER is a bill of exchange payable to order on demand.

BANKING-FORGED CHECKS.-THE DRAWEE OF A BILL OF EXCHANGE OR OF A BANK CHECK is conclusively presumed to know the signature of the drawer, and if he accepts or pays in the usual course of business a bill or check whereon the signature of the drawer is a forgery, he and the person to whom payment is made are both estopped to afterward deny the genuineness of such signature.

AN ESTOPPEL MUST BE MUTUAL. It must bind both parties, and one who is not bound by it cannot take advantage of it. BANKING-FORGED INDORSEMENTS.-The drawee of a check is bound to know the signature of his own customers, but is not bound to know any other signature thereon, and by accepting or paying a bill or check does not admit the genuineness of any indorsement of it. BILLS OF EXCHANGE-FICTITIOUS PARTIES.-The fact that a check or bill of exchange is made payable to a person who does not own it, but is merely an officer or agent of the corporation or person entitled to its proceeds, does not constitute it a bill or check payable to a fictitious person, nor render it any the less forgery to indorse the name of the person designated therein as payee without anthority so to do. BANKING.-A BANK INDORSING AND COLLECTING A CHECK WARRANTS THE GENUINENESS OF ALL THE PRE-EXISTING INDORSEMENTS thereon, including the indorsement of the res] ective payees named in such check, and is answerable for moneys received by it if any of such indorsements are forgeries.

BANKING.-A BANK PAYING A CHECK ON A FORGED INDORSEMENT I ENTITLED to recover the money so paid from the person receiving it,