112 Wis. 260 | Wis. | 1901
It appears from the record that in 1894 the land in question was owned by the defendants Abbie A. and Archie McYicar; that in the summer and autumn of that year the plaintiff obtained three tax deeds thereon, each of which was thereupon recorded; that January 24, 1895, the McYicars conveyed the land to the defendant Doolittle, who claims to have taken the title thereof in trust for two of his clients, Washington Churchill and Eliza N. De Lance; that Nov. 4, 1895, Doolittle and wife conveyed the land by quitclaim deed to Churchill and De Lance, and that deed was recorded October 29, 1897; that April 20, 1897, this action of ejectment was commenced against the McYicars and Doolittle, and notice of lis 'pendens filed; that upon the complaint being amended a new notice of Us pendens was filed May 18, 1897. The McYicars answered, disclaiming all right, title, or claim to any part of the premises, and alleged that they had absolutely disposed of the same long prior to the commencement of the action. The defendant Doolittle answered, and disclaimed all right, title, interest, or claim to any part of, the premises.
On January 29, 1898, Gunder Berge — not a party to the suit — entered into a written contract with Washington Churchill for the purchase of the land in question, and the same was executed and acknowledged in the presence of and before the defendant Doolittle. June 28, 1900, the plaintiff, having waived all claim for damages and costs, took
The facts stated aró not disputed. The only claim is that at the time of the commencement of the action the plaintiff had no knowledge or information that Doolittle had conveyed the lands to Churchill or any other person, but supposed he still held whatever title or interest had been conveyed to him by the McVicars, and that he had no knowledge or information that Churchill or De Lance had or claimed any interest in the premises. The motion seems to have been'decided on the theory that the apj>ellant ought to be put to his separate action, and that the court ought not to
“ The judgment is good only against the defendant and those claiming under him, or in privity with him. And where another person is in possession, claiming under a paramount title, it cannot be executed as against him. This has frequently been held not only in respect to the writ of possession issued to enforce decrees in chancery, but also as to executions in ejectment.”
In support of such statement the learned justice, among other cases, cited Clark v. Parkinson, 10 Allen, 133, where it was held that “it is not the duty of an officer who serves a writ of possession to expel from the premises any persons who were in possession, claiming title in themselves, at the time when the suit was commenced in which the writ issued, and who do not claim under the person against whom the writ runs, nor resist the officer in his attempt to remove the latter and those claiming under him.” Certainly the trial court had power to control its own process, and it would be repugnant to the entire spirit of the law for the court to allow its process to be enforced against one who had been
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.