Brown v. Cohn

95 Wis. 90 | Wis. | 1897

The following opinion was filed November 24, 1896:

Newmax, J.

The question principally argued on this appeal, and which seems to be decisive of it, is whether defendants’ title under the tax deeds is concluded by the judgment in Brown v. Lincoln County et al. The claim of the plaintiff is that they are so concluded, while the defendants claim that they are not concluded by the pendency of the action at the time of the purchase of their predecessor’s title, because no notice of Us pendens was filed in that action. This, then, is the question: Whether the mere fact of the pendency of the action, without the actual filing of a notice of lis pendens, brings the case within the doctrine of Us pendens. The object of lis pendens is not, primarily, notice, but to hold the subject of the suit, the res, within the power of the court, so as to enable it to pronounce judgment upon it. It is deemed that every person is bound to know the law, and to take notice of what is transpiring in the courts, from the time when tfíé process is served and the complaint filed until the final judgment is entered. The purchaser pendente Ute is deemed to' be represented in the litigation by his vendor, and the purchaser is just as much bound by the final judgment rendered as is the party whose right he purchases. 13 Am. & Eng. Ency. of Law, 868 et seq.; Murphy v. Farwell, 9 Wis. 102-106. This is, in effect, the law of lis pen-dens as applicable to this case, unless the common-law rules relating to the subject have been abrogated and superseded by the statute (R. S. sec. 3187). But that statute, 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 l>ona fide purchasers or incumbrancers, pendente Ute, 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. Coe v. Manseau, 62 Wis. 81-90; Wis. Cent. R. Co. v. Wis. River L. Co. 71 Wis. 94-107. The purchaser of a tax certificate or a tax title is not a bona fide purchaser. He buys under the rule caveat emptor. 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, in invitum, of his title, and that such a title is liable to be defeated by whatever irregularities or omissions may be in the proceedings. Cooley, Taxation (2d ed.), 475, 476; Hixon v. Oneida Co. 82 Wis. 515-530.

Nor can one be a Iona fide purchaser of tax certificates who takes them without legal assignment. He does not get legal title to them. It seems clear that the purchasers of these certificates were not such parties as the statute was enacted to protect, but that, on the contrary, they were parties who bought at their peril, who were bound to take notice of the pending action, in which the validity of the certificates and the tax proceedings on which they were based was in the process of adjudication. And the defendants must be held to be bound by that adjudication. The judgment in Brown v. Lincoln County et al. swept away all foundation from under the tax deeds, and left them without support in previous proceedings. They were issued entirely without the authority of the law, and' in defiance of the power of the court. They are utterly without authority. They are not tax deeds, under the statute, and are utterly incapable of supporting the statute of limitations. The effect of the judgment on this tax title is the same as it would have been if John Comstock had taken the tax deed, instead of "Winton. A purchaser from him could get no better title than he had. Lis pendens binds both parties and privies. A purchaser pendente lite is assumed to have notice of the proceedings, because he is bound to take notice of the proceedings of the courts. If Comstock had taken the deed, no defense of the statute of limitations would have been available by him; for the action was already commenced and pending, in which his tax title and the previous proceedings were annulled. The defendants are in no better predicament.

By the Oowrt.— The judgment of the circuit court is affirmed.

A motion for a rehearing was denied February 2, 1897.