Sherman v. Bemis

58 Wis. 343 | Wis. | 1883

Oassoday, J.

The practice pursued in this case was, to say the least, anomalous. The only issue ever tried in the base was that formed by the complaint and the answer of disclaimer by the defendant Gilmore. The complaint alleged the possession in Gilmore, and that he unlawfully withheld it from the plaintiff, and had, since May 17,1880. The answer denied each of these allegations, and alleged that Gilmore had conveyed to Bemis by deed before the commencement of the action, and the court found that the answer and complaint were both true. After the close of the testimony from which the trial judge made these remarkable findings, he ordered Bemis to be made a defendant for the purpose of controverting the plaintiff’s claim of title and right to possession, upon the testimony taken on the trial of the issue made by the complaint and Gilmore’s answer of disclaimer. The complaint was never amended so as to make the action against Bemis, and he put in no answer, and it would seem that he could not under the limitation imposed. The only finding having any reference to Bemis is that he claimed to be the owner of the land by virtue of the quitclaim deed mentioned in Gilmore’s answer, but which deed was not recorded until after the suit was commenced. Thus it appears that Bemis was only permitted to defend his title upon Gilmore’s answer disclaiming title, and then only upon the evidence which Gilmore had.adduced to establish his disclaimer.

As the action was commenced, and the notice of listen-dens filed in tbe register’s office for Marathon county, where the land was situated, before Bemis had recorded his deed, it is urged, in effect, that Bemis had no rights which the •court was bound to respect, because, under sec. 3187,E- S., and sec. 3088, E. S., the plaintiff was entitled to judgment barring the title of Bemis without making him a party at all. Had Gilmore actually defended the title in behalf of Bemis as his grantee, there might have been some plausibility in the argument. But to hold that a grantee claiming title is barred by the action of his grantor in disclaiming title, is to hold that a party may be deprived of his property without process, and without any opportunity for trial or hearing. Besides, the argument proves too much. Gilmore succeeded on his disclaimer and obtained judgment against the plaintiff, and yet the plaintiff was allowed to take judgment against Bemis. Had the plaintiff succeeded in obtaining judgment against Gilmore, instead of being defeated, his claim to bar the title of Bemis would not have been any less. So, according to the argument, it became wholly immaterial, so far as Bemis was concerned, whether the issue between the plaintiff and Gilmore was decided in favor of the one or the other, for in either event the plaintiff would, according to his contention, be entitled to a judgment terminating the rights of Bern,is. That is to say, the real owner or claimant of the land would have his right to it forever barred without being made a party, and without any hearing or trial of the questions involving his right to the property, and without any issue ever being formed upon which those questions could be tried.

But there are other difficulties in the way of the plaintiff’s contention. Sec. 3187, E. S., referred to by counsel, authorizes the Us pendens to be filed at the? time of filing the complaint, or any time afterwards before judgment. Until the filing of the complaint, the notice of lis pendens, though duly filed, is inoperative. Olson v. Paul, 56 Wis., 30. Here there is nothing in the record indicating that the complaint was ever filed with, the clerk of the circuit court in Marathon county. If it was not, then, manifestly, the notice of lis pendens never became operative at all. If it was never operative, then we apprehend counsel would not claim that Bemis could be bound by a judgment in an action to which he was not a party, and hence the argument for making him a defendant, and in the same order preventing him from defending, would fall to the ground. But there is a possibility that the complaint was attached to the summons which purports to have been filed with the clerk, April 8, 1881; and if it was, then the notice of lis pendens, under the authorities cited, only became operative from that date. But even if that were so, yet, long prior to that time, the defendant Gilmore had served his answer disclaiming all right to the land under the tax deed, and alleging, in effect, that whatever right, title, or interest he had acquired in the land by virtue of the tax deed, he had, prior to the commencement of the action, conveyed by deed to Bemis. Thus the plaintiff was fully informed, long prior to the time when the Us pendens became operative (assuming that the complaint was, in fact, filed with the summons), that Gilmore was not in possession, and did not withhold the same at the time of the commencement of the action, but that prior to that time he had conveyed by deed'to Bemis whatever right, title, or interest he had acquired by virtue of the tax deed. Gilmore, having thus disclaimed, was forever bound by such disclaimer. Manifestly it became the duty of the plaintiff upon receiving such disclaimer and information, and especially as his Us pendens was at that time wholly inoperative, to proceed against Bemis, if he desired to contest any right, title, or claim which Bemis might have or make under the tax deed, and the deed from Gilmore. Having at his peril chosen not to do so, he elected to stand or fall upon the issue formed, and upon that issue he could only succeed by proving Gilmore’s answer to be false. But the court found it was true.

The statute expressly provides that where the premises are actually occupied, the action must be against the occupant. R. S., sec. 3075. If they are not so occupied, then the action must be against the person exercising acts of ownership •on the premises, or claiming title thereto, or some interest therein, at the time of the commencement of the action. Ibid. The court having found Gilmore’s answer to be true, in effect found that he was doing none of the acts mentioned in that section at the time of the commencement of the action, and hence that the plaintiff had no right to commence the action against him at the time he did; and it was upon this ground that judgment was ordered and rendered in favor of Gilmore and against the plaintiff. The plaintiff simply misconceived the person against whom to bring the action. The statute only made the Us pendens constructive notice to such purchaser or incumbrancer as obtained his conveyance or incumbrance after both the complaint and notice had been filed. Sec. 3187. Nor does sec. 3088, R. S., cited by counsel, aid his client in this respect. That simply provided that the judgment rendered in such action of ejectment shall be conclusive, as to the title established therein, ■upon the party against whom it is rendered, and upon all persons claiming from, through, or under him, by title accruing after the filing of a notice of the pendency of the action in the office of the register of deeds. Had Bemis not been made a party he would not have been bound under that sec•tion, for that only made the judgment conclusive upon the plaintiff against whom it was rendered, and those claiming from, through, or under him. Bemis did not claim from, through, or under the plaintiff, but under Gilmore, in whose favor the judgment was rendered. Besides, the title or claim of Bemis did not accrue “ after ” the filing of the lis -pendens, but before the commencement of the action; — much less after the filing of-the complaint in Marathon county, assuming that it was so filed. It is unnecessary to consider the exceptions to the numerous findings of fact entirely outside of the only issue tried. They are simply so many more additional facts indicating that the case went off upon a mistrial.

For the reasons given,' that portion of the judgment appealed from must be reversed, and the cause remanded for further proceedings according to law.

JBy the Court. — It is so ordered.