105 Wis. 607 | Wis. | 1900
The following opinion was filed December 15, 1899:
This is an action of ejectment, commenced IVIarch 27, 1896. The plaintiffs claim title in fee under patent from the United States. The complaint is in the statutory form. The answer alleges ownership in fee and right to possession under a quitclaim deed to Peter Peterson, deceased, executed November 13,1894, and recorded January 11, 1895, from one J. P. Mork, and three tax deeds •from the county to Mork, one dated May 21,1887, based on the sale of 1884 for the taxes of 1883, and recorded May 21, 1887, and two other deeds, dated July 3,1889, one based on the tax sale of 1885 for the taxes of 1884, and recorded Oc-tober 19,1889, at 2:50 p. m., and the other based on the tax sale of 1886 for the taxes of 1885, and recorded October 19, 1889, at 2:50 p. m.; and further alleges that, at the time of the execution and delivery of each of such tax deeds, the land in question was wholly vacant and unoccupied, and so remained until the defendant, Peter Peterson, took possession, March 23, 1896; that the defendant purchased the land for a full consideration, in good faith, believing that Mork had a complete and undisputed title to convey; and pleads the three-years statute of limitations as to each of such tax deeds, claiming the benefit of sec. 1188, Stats. 1898, and all other statutes of limitation applicable to the facts.
A jury being waived and trial had, the court found as matters of fact, in effect, that the three tax deeds and the quitclaim deed mentioned in the answer were executed, delivered, and recorded as therein stated; that the land was wholly vacant and unoccupied for more than three years after October 19,1889; that June 15,1889, the then owners of the patent title to the land commenced an action against €r. P. Mork, intending thereby to sue-J. P. Mork, and served
And as conclusions of law the court found, in effect, that the plaintiffs herein are the owners in fee of the premises, and entitled to the possession thereof; that the judgment of October 24, 1889, against Mork, was conclusive as between the parties to this action; that Mork had no title to the land by virtue of any tax deed he then held upon it, and could' acquire none by virtue of any tax certificates then held by him .on the land; that Mork had no title to the land at the' time he attempted to convey the same to Peter Peterson,, and that Peter Peterson acquired no title thereto by his conveyance from Mork; that Peter Peterson wrong!ully withheld possession of the premises from the plaintiffs; that the-plaintiffs were entitled to judgment adjudging them to be the owners in fee simple of the premises, and that they recover from Peter Peterson, since deceased, the possession thereof, with six cents damages and costs. From the judgment entered thereon accordingly, Peter Peterson, since deceased, brought this appeal.
The principal question discussed is whether the defendant’s intestate, claiming title by deed from Mork, is es-topped by the judgment in ejectment against Mork, entered October 24, 1889, to claim title to the land by virtue of either of the tax deeds issued to Mork prior to the entry of' that judgment. As indicated, one of those tax deeds was-issued two years prior to the commencement of that action, and the other two deeds were issued eighteen days after the commencement of that action, and more than three months prior to the time when Mork served his answer to the complaint in that action. It was held by this court, more than twenty-five years ago, in effect, that, in order to recover, a plaintiff in ejectment was only required to prove title and.
Whatever may be the rule in ordinary actions of ejectment, yet, after careful consideration, we have reached the conclusion that whenever a plaintiff is entitled to recover by reason of a defective tax deed or tax proceeding, under which the defendant claims title, as prescribed in sec. 3081, and such defendant is entitled to an allowance for or on account of taxes, as therein prescribed, or has, during the pend-ency of such action, acquired the title or right to the possession of the premises, then, as to such defendant, the word “ may,” in sec. '3074 of the statute quoted, is to be construed as “must;” in other words, Mork, claiming title under the tax deed of 1887, could not, after the action was commenced against him June 15,1889, and during its pendency, acquire new tax certificates and new tax deeds, and hold them until after the trial of that action and his tax deed of 1887 had been adjudged therein to be void, and then assert title and the constructive possession of the land by virtue of such new tax deeds. On the contrary, when his tax deed of 1887 was thus challenged, and he thereupon acquired such new tax certificates and new tax deeds, during the pendency of that action he was bound, in order to make them available in support of his claim of title, to present them for determination “ according to the rights of the parties ” in that action, as prescribed by the statute quoted; and, failing to do so, he was estopped from acquiring any title or right to possession by virtue of such new tax deeds. As said in a recent
The defendant’s intestate, Peter Peterson, claiming title under a quitclaim deed from Mork dated November 13,1894, is bound by the judgment in the suit against Mork, notwithstanding no notice of lis pendens was filed in that action. Brown v. Cohn, 95 Wis. 90. Sec. 3187, said Mr. Justice NewmaN in that case, “ evidently was intended to apply to only a part of the cases to which the doctrine of Us pendens applies. It has no negative words or repealing clause. It was evidently intended to be supplemental to the common law, and not to repeal it. So the common law will govern in all cases not covered by the statute. It has been held by this court that the object of that statute is to conclude subsequent bona fide purchasers or incumbrancers pendente lite by a constructive notice. The filing of the notice is not necessary where the subsequent purchaser has actual notice, or ■where he is not a bona fide purchaser. . . . The purchaser of a tax certificate or a tax title is not a bona fide purchaser. He buys under the rule cmeat empior. He takes the title subject to its infirmities. He knows that such a title grows out of proceedings hostile to the real owner, by which it is sought to divest him, m wivitum, of his title, and that such title is liable to be defeated by whatever irregularities or omissions may be in the proceedings. . . . Lis pendens binds both parties and privies. A purchaser pen-
The mere fact that in the complaint against Mork there was a mistake as to one of the initials of his name is without significance. He raised no question as to his being the rightful defendant, but answered upon the merits, and hence waived the technical misnomer. Sec. 2654, Stats. 1898. The court properly disregarded it, and entered judgment, and subsequently corrected it. Sec. 2829, Stats. 1898.
The defendant invokes the familiar rule that in this action of ejectment the plaintiffs must recover, if at all, upon the strength of their own title, and not upon the weakness of the defendant’s title. It is contended that in the chain of title from the United States to the plaintiffs there is the record of a deed from the Sturgeon Bay & Lake Michigan Ship Canal & Harbor Company to Spencer A. Coleman, purporting to have been executed and recorded in April, 1880, but which was defectively executed, or at least defectively acknowledged, so that the record was not properly admitted in evidence, even if the original deed would have been admissible. But, without determining that question, we think the judgment of October 24,1889, against Mork and in favor of Bartels and Rosenberry, is res adjudicata as to their title at that time. In that case the court found, as matters of fact, that Bartels, and Rosenberry were, and ever since December 9, 1881, had been, the owners in fee of the premises described, and that Mork had wrongfully withheld the possession thereof since the date last mentioned; and, as conclusions of law, that Bartels and Rosenberry -were entitled to judgment that they recover from the defendant the possession of the premises, with costs. The judgment therein was to the effect that Bartels and Rosenberry do have and recover from the defendant, Mork, the possession of the premises described, with costs. True, that did not expressly
By the Gourt.— The judgment of the circuit court is affirmed.
I yielded reluctant assent to that part of •the opinion in Cook v. McComb, 98 Wis. 526, which held that a defeated tax-title claimant in an ejectment action must bring in and surrender tax certificates held by him other than those involved in the deed set aside. It may be rather late now to express any dissent from that conclusion. The application of that decision to the facts in this case, however, leaves me at liberty to enter such protest as my sense of duty suggests. ’ In the former action, referred to in the opinion, the plaintiffs recovered because of the invalidity of the Mork tax deed. At the time the action was •commenced, Mork had no claim against the land except his tax deed. At a later date he purchased, as he had a perfect right to do, two outstanding tax certificates. These
A motion for a rehearing was denied February 27, 1900.