RES JUDICATA AND RECORDING ACTS: DOES A JUDGMENT CONCLUDE NON-PARTIES OF WHOSE INTERESTS THE PLAINTIFF HAS NO NOTICE?

Authors

Edgar Noble Durfee, University of Michigan Law School
Austin Fleming, Of the Detroit Bar

Abstract

The problem indicated by our title arises in various ways, but we may put it in the form of a type case which will serve as the center of the whole discussion. 1927, mortgage of land, A to B, recorded; 1928, deed of conveyance, A to C, not recorded, possession not taken by C; 1929, without actual notice of the conveyance to C, B sues A and obtains a decree of foreclosure. What effect has the judgment as against C? This we may call the "type case." But variations of this case suggest themselves. While the suit is pending, C may record his conveyance or take possession of the land, or actual notice of his interest may be brought home to B. Are any of these things material? Again the case may be varied with respect to the nature of the transfer to C. This may be any known type of transfer, whether by act of the parties or by operation of law, including such as involve carving a lesser interest out of the estate of A. Are all these cases subject to the same rules? So far we have pictured cases involving a suit by B to foreclose a mortgage but similar questions arise in other actions, e.g., equitable suit to foreclose any variety of lien; suit for specific performance of contract; suit to enforce a trust, express, resulting, or constructive; judgment creditor's bill; bill to quiet title or remove cloud from title; the action of ejectment or its statutory equivalent; in short any action which directly affects the title to land. We are not concerned with any action to recover a mere money judgment. Though it may collaterally affect the title to land by way of judgment lien or execution sale, such suit does not, even between the record parties, involve an adjudication of any question affecting the title. Neither are we concerned with actions in rem which conclude all the world. We are, however, concerned with those proceedings, characterized as quasi in rem, which are actions in rem in the sense that personal service of process is dispensed with, but are actions in personam in the sense that they run against particular persons who are named or described as parties to the action. We also confine ourselves to cases concerning land, and exclude from consideration the effect of the Torrens system of title registration. Even so the subject is sufficiently complex.

Recommended Citation

Edgar N. Durfee & Austin Fleming, RES JUDICATA AND RECORDING ACTS: DOES A JUDGMENT CONCLUDE NON-PARTIES OF WHOSE INTERESTS THE PLAINTIFF HAS NO NOTICE?, 28 Mich. L. Rev. 811 (1930).
Available at: https://repository.law.umich.edu/mlr/vol28/iss7/3