## Facts

- John Hinton died in 1910, leaving a will that devised a 324-acre farm in Camden County, North Carolina; the will was probated in Pasquotank County and a certified copy was recorded in Camden County.
- In 1910, R.I. Hinton (a devisee and executor) acquired the other devisees’ interests and recorded his deed in Camden County.
- In 1918, Ada Whitehurst and other heirs of J.C. Hinton filed a caveat in Pasquotank County challenging the will for lack of capacity and undue influence.
- No notice of lis pendens was filed in Camden County, and the caveat was not recorded or indexed there to give constructive notice in the land’s county.
- In 1919, while the caveat was pending, R.I. Hinton conveyed the farm to T.G. McPherson, who had actual knowledge of the caveat and attended the proceedings.
- In 1920, the court entered judgment declaring the will void; the judgment was not certified to Camden County and no notation was made on the recorded will copy there.
- In 1923, McPherson conveyed the farm to H.D. Abbott, who asserted he purchased for value without notice based on Camden County records.
- The heirs sued for partition; the trial court found McPherson and Abbott were purchasers for value without notice and denied relief.

## Issues

1. Whether a will caveat is an “action” within North Carolina’s lis pendens statute requiring filing in the county where the land lies to bind third parties.
2. Whether McPherson and Abbott qualified as bona fide purchasers for value without notice, given McPherson’s actual knowledge and the absence of a lis pendens filing and certified judgment in Camden County.
3. Whether a recorded certified copy of a will in the land’s county can support title after the will is judicially declared void.
4. Whether later-enacted statutes could retroactively validate or alter property rights that accrued before enactment.

## Decision

- The Supreme Court of North Carolina held that a will caveat is an “action” for purposes of the lis pendens statute because it directly affects title to devised land.
- The Court ruled that, for land in another county, the pending caveat does not provide constructive notice unless a lis pendens notice is filed in the county where the land is located.
- The Court held McPherson was not a bona fide purchaser because he had actual notice and bought pendente lite; he was bound by the judgment invalidating the will.
- The Court concluded Abbott could not obtain better title than McPherson where McPherson’s title was defective in light of the caveat and the judgment voiding the will, and later statutes could not impair previously accrued rights.
- The Court rejected the trial court’s finding of bona fide purchaser protection as applied to McPherson and reversed in material respects, remanding for further proceedings consistent with its rulings.

## Legal Principles

- A will caveat is an “action” within the lis pendens statute when the proceeding will determine whether title passes under a will or by intestacy.
- For land in a different county, constructive notice of a pending action affecting title exists only if lis pendens is filed in the county where the land lies.
- A purchaser pendente lite with actual (or legally chargeable) notice is bound by the judgment affecting title and cannot claim bona fide purchaser protection.
- A party asserting bona fide purchaser status bears the burden of proving purchase for value, good faith, and lack of notice.
- A judicial determination that a will is void defeats reliance on recorded copies of the will as a foundation for title against heirs whose rights are established by the judgment.
- Statutes enacted after rights accrue cannot constitutionally operate retroactively to divest or alter those accrued property rights.

## Conclusion

The court treated a will caveat as an action triggering lis pendens requirements, held that McPherson’s actual notice during pending litigation prevented bona fide purchaser status, and ruled that Abbott could not rely on a chain of title rooted in a will later declared void or on later statutes to defeat the heirs’ claims.


Whitehurst v. Abbott, 225 N.C. 1, 33 S.E.2d 129 (1945)