FOLLETT, Ch. J.

A pending action brought to establish title to, or a lien upon, land does not of itself, nor does a duly recorded notice of its pendency, make the title defective or create a lien on the land. ( Mahaiwe Bk. v. Culver, 30 N.Y. 313; Wilsey v. Dennis, 44 Barb. 354; Osbaldeston v. Askew, 1 Russ. 160; Bull v. Hutchins, 32 Beav. 615; 1 Dart on Vendors [6th ed.] 564; 1 Sugden on Vendors [7th Am. ed.] 592, pp. 50, *520.) In Bull v. Hutchins, Sir JOHN ROMILLY, the learned master of the rolls, discussing this question, said: "It (the registered notice) was notice of the existence of a suit in chancery, and required all persons dealing with the property to look at the proceedings to see whether it did affect the property or not. Here the lis pendens was no incumbrance if Pratt had no right against the property, for it depended on the validity of his claim, for, if his claim were idle, it could not create any incumbrance on the property. A man might file a bill claiming property, alleging that sixty years ago his ancestor was seized in fee; and that, although he had sold the property, yet he had no right to do so. The plaintiff might register this as a lis pendens, but could anybody say that this was an incumbrance on the property, or a reason why a purchaser should not complete his purchase? All that the registration of a lis pendens does is to require persons to look into the claims of the plaintiff who registers it."

The record before this court is barren of evidence, except such as is contained in the papers filed in the suit in chancery, tending to show that the complainants in that suit ever had an interest in or lien upon the lots. Nevertheless, this case will be decided upon the assumptions: (1) that all of the allegations in the bill were true at its date; (2) that the facts there alleged were found by the referee in this action upon competent and sufficient evidence; and (3), that those facts were sufficient to have entitled the complainants, in 1836, when their bill was filed, to a judgment requiring Mary Kemble, then the owner of the legal estate, to receive the remainder of the purchase-price from the complainants and convey to them the lots. Were it material, the defendant might well complain of these assumptions, for while the admissions made by Mary Kemble in her answer to the bill in chancery, when she was the owner and in possession of the lots, are evidence against the defendant, the unadmitted allegations of the complainants in their bill, on which the assumptions are based, are not evidence against him; and, besides, the assumed facts were not found by the referee.

Resting upon these assumptions, could the complainants, if living, or if dead, their successors in interest, in March, 1885, have compelled the defendants in this action to accept of the remainder of the purchase-price and convey the lots? If the answer to this question be doubtful in a legal sense, by reason of resting on a disputed state of facts, or on unascertained facts, the plaintiff was not bound to take the title. Whether, in actions brought to enforce the specific performance of executory contracts for the sale of land, courts should determine doubts respecting the title which depend solely on an unsettled question of law, and decree performance when the unsettled question is decided in favor of the validity of the title, seems not to have been definitely settled. ( Abbott v. James, 111 N.Y. 673; Osborne v. Rowlett, L.R., 13 Ch. Div. 774; Fry on Spec. Per. [3d Am. ed.] 435, § 871; Pom. on Spec. Per. 281, § 202.) But it is unnecessary to enter into this controversy, for the determination of the validity or reasonableness of the vendee's doubt in the case at bar does not depend upon the decision of an unsettled legal question.

It is assumed, without deciding the question, that a vendee may recover money paid on an executory contract for the sale of land, by proving the title so doubtful that a court would not compel him to take it. Upon this question see, Burwell v. Jackson ( 9 N.Y. 542); O'Reilly v. King (2 Robt. 587); Methodist E. Church Home v. Thompson (20 J. S. 321); Bayliss v. Stimson (21 id. 225); 1 Darton Vendors (6th ed. 222). A vendee in an executory contract for the purchase of land has not an absolute right to a specific performance of the contract, but such relief is granted or refused according to the circumstances of each case. ( Peters v. Delaplaine, 49 N.Y. 362; Day v. Hunt, 112 id. 191; Fry on Spec. Per. [3d Am. ed.] 10, § 25; Pom. Spec. Per. p. 4, § 4, p. 47, § 35.) The fact that all of the heirs of Arthur McGeer were infants at the date of his death, May 25, 1825, and that the youngest did not become of full age until 1843, is not a legal excuse in an action to enforce a specific performance of the contract, for their failure to perform the contract of their ancestor; and the laches which would have barred such an action by him will bar a like action prosecuted by them. ( Havens v. Patterson, 43 N.Y. 218).

Paulding having purchased without actual notice of the suit or of the alleged claim of the McGeers, he was a purchaser in good faith and acquired a perfect title unless he was bound by the bill in equity and the accompanying notice of the pendency of the suit. His grantee (the defendant herein) succeeded to all of his rights, and a purchaser from the defendant, though purchasing with notice of the suit and of the claim of the McGeers, would acquire a perfect title free from their claims. ( Bumpus v. Platner, 1 Johns. Ch. 213; Varick v. Briggs, 6 Paige, 323; affirmed, 22 Wend. 543; Griffith v. Griffith, 9 Paige, 315; Webster v. Van Steenbergh, 46 Barb. 211; Wood v. Chapin, 13 N.Y. 509; 1 Story's Eq. Juris. § 410; 2 Pomeroy's Eq. Juris. § 754.) Paulding's title and the title of purchasers subsequent to him, not being weakened or affected by actual notice of the suit, it becomes important to inquire as to the effect of these papers found on file; or for how long a dormant suit and a statutory notice of its pendency binds subsequent purchasers for value and without actual notice?

The rule that a purchaser, pendente lite, of the subject of the litigation, if he buys in good faith and without actual notice of the claims of the litigants, is not affected by the suit pending or by the notice of its pendency, unless the suit has been prosecuted with due diligence, was first formulated by Lord BACON.

"12. No decree bindeth any that cometh in bona fide by conveyance from the defendant before the bill exhibited and is made no party neither by bill nor the order, but where he comes in pendente lite and while the suit is in full prosecution and without any color of allowance or privity of the court, there regularly the decree bindeth; but if there were any intermission of suit or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice." (Ord. 12 in Chancery; 15 Bacon's Works, 353.) The learned editors of Bacon's Works, Spedding, Ellis and Heath, say that the main body of these ordinances must have existed previous to the time of Lord BACON in some shape or other, written or unwritten. (14 Bacon's Works, 160.) It may be safely asserted that this rule is as ancient as the earlist reported decisions of the Court of Chancery, and it continued to be the rule of the English courts until 1839. ( Preston v. Tubbin, 1 Vern. 286; Sorrell v. Carpenter, 2 P. Wms. 482; Kinsman v. Kinsman, Taml. 399; 1 Russ M. 617; 2 Sugd. on Vendors [7th Am. ed.] 544, 1045*, p. 24; 2 Fonbl. on Eq. 153.) In 1839 it was enacted (Chap. 11 of 2 and 3 Vict., amended by chaps. 15, 18 and 19 Vict.) that a lis pendens should not bind a purchaser or mortgagee pendente lite without express notice thereof, unless a notice of the pendency of the suit should be registered, and that the registered notice should become void at the expiration of five years unless it should be re-registered. Since the passage of this statute the effect upon purchasers and incumbrancers, pendente lite, of a lack of diligence in prosecuting suits, has ceased to be, in England, a living question, and only occasional reference to the subject will be found in modern English law books. We do not find that this rule has ever been questioned in this state; but, on the contrary, it has been approvingly cited and applied. ( Murray v. Ballou, 1 Johns. Ch. 566; Hayden v. Bucklin, 9 Paige, 512; Myrick v. Selden, 36 Barb. 15; Will. Eq. Juris. 251.) The courts of other states have asserted and followed the rule. ( Herrington v. McCollum, 73 Ill. 476, 483; Watson v. Wilson, 2 Dana, 406; Clarkson v. Morgan, 6 B. Monroe, 441, 448; Debell v. Foxworthy, 9 Id. 228; Erhman v. Kendrick, 1 Metc. [Ky.] 146; Petree v. Bell, 2 Bush. [Ky.] 58; Ashley v. Cunningham, 16 Ark. 168; Mann v. Roberts, 11 Lea [Tenn.] 57; Bybee v. Summers, 4 Oregon, 354.)

The text writers state the rule as laid down in the cases cited. (2 Pom. Eq. Juris. §§ 634, 640; Wade on Notice, §§ 357, 359; Bennett on Lis Pendens, § 418.)

The right of a plaintiff to revive and continue an action against the successors in interest of a deceased defendant may be lost by long delay in making the application, and especially if the successors are purchasers in good faith and if the condition and value of the property have greatly changed, and the only witnesses by which the facts in issue could be established are dead. ( Coit v. Campbell, 82 N.Y. 509; Lyon v. Park, 111 id. 350.) For sixty-one years prior to April 15, 1885, the date fixed for the performance of the contract of sale, the defendant and his grantors had been in the exclusive possession of the lots, claiming to own the entire estate by virtue of recorded deeds, which, in terms, conveyed the entire estate. No move has been made in the chancery suit adverse to the defendants therein since April 26, 1838, sixteen years before Paulding became a purchaser in personal good faith, and more than forty-six years before the plaintiff in this action purchased. Gertrude Kemble Paulding, one of the defendants, died May 25, 1841, forty-four years before the plaintiff's purchase; her husband died April 6, 1860, twenty-five years before the plaintiff's purchase; Gouverneur Kemble died September 18, 1875, nearly ten years before the plaintiff's purchase, and William Kemble died November 5, 1881, nearly four years before the plaintiff's purchase. It is apparent that the condition and value of the property have greatly changed. It was contracted to be sold in 1819 for $1,200; and it sold to the plaintiff for $26,100. It is alleged in the bill, and is conceded in the answer in the chancery suit, that the business between Arthur McGeer, the vendee, and Peter Kemble the vendor, was transacted by William Kemble, who is dead. On the 25th day of March 1885, the complainants in the suit in chancery, if living, and if dead, their successors in interest, were, by well settled rules of law, effectually barred from reviving and continuing their suit against the defendant in this action, who then had a good title to the lot; and the plaintiff had no valid reason, in law or in equity, for failing to perform her contract. Having held that the suit in chancery, and the papers filed in connection therewith, created no defect in the title, or lien upon the property, it is unnecessary to discuss the failure of the defendant to disclose their existence to the purchaser.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except BRADLEY and HAIGHT, JJ., who dissent.

Judgment reversed.