Warner v. Trow, 36 Wis. 195

Warner v. Trow

36 Wis. 195 | Wis. | 1874

Cole, J.

For the purpose of establishing his title to the lands upon which the alleged trespass was committed, the plaintiff in the first instance introduced in evidence a tax deed embracing those lands, with others, which deed was recorded September 30, 1871. He then proposed to put in evidence a judgment of the circuit court of Outagamie county, dated November 26, 1872, rendered in an action brought upon this tax deed under the provisions of ch. 22, Laws of 1859, in and by which the plaintiff was adjudged to have an absolute title in the lands therein described. This judgment was objected to on the part of the defendants as immaterial, and was excluded by the court. And the only question we shall consider is this ruling of the circuit court. It was objected in the court below, and substantially the same point is relied on here, that this judgment was inadmissible in the present action, because it was dated subsequent to the commission of the alleged trespass, and subsequent to the commencement of this suit, and also for the further reason that the judgment was not against these defendants.

It cannot be denied, however, that this judgment was against *200Henry Hewitt, Jr., Henry Sherry, W. D. Reynolds, and others, former owners of the land, under whom the defendants claimed the right of building their logging camp and cutting the timber in question. The defendants claimed that they had purchased the stumpage on section 8, November 15, 1871, of Sherry, who had bought the -land of Hewitt in January previous. Now why were not the defendants bound by the judgment obtained against the parties from whom they purchased ? In order to give full effect to the rule that the judgment of a court of competent jurisdiction is final and conclusive upon the rights of the parties touching the subject matter of the suit, not only the parties themselves are held to be bound, but also all persons who are represented by the parties, and claim under them, or in privity with them, must be equally concluded by it. 1 Greenl. Ev., § 523. The learned counsel for the defendants does not controvert a principle so well settled; and therefore we do not well understand upon what ground it can be successfully claimed that the defendants, standing in the relation they do to the parties in that litigation, and identified with them in interest, are not bound by the judgment. The defendants purchased of Sherry the standing timber ; that is an interest in the land. Strasson v. Montgomery, 32 Wis., 52. At the time of the filing of the lis pendens in that action, there was nothing upon record to show that they were interested in any of the lands conveyed by the tax deed, and consequently they must be deemed subsequent purchasers, under sec. 7, ch. 124, R. S., and bound by the proceedings in that suit to the same extent and in the same manner as if they had been made parties thereto. And now suppose this action of trespass were brought against Sherry, or Hewitt: would not this judgment have been admissible in evidence, and would they not have been concluded by it ? It seems to us the question must be answered in the affirmative. And if this were so, is it not apparent that the judgment was admissible against the defendants, who are privies in interest, and who are equally bound by it ?

*201As to the other objection, that the judgment was incompetent evidence because dated subsequent to the alleged trespass, and subsequent to the commencement of this suit: it seems to us that circumstance is quite immaterial. It is said that no proofs were made to show that the action on the tax deed was commenced before the cutting of the timber, and that the rule is, that a party cannot be made a trespasser by relation. But it is not denied that the trespass was committed after the execution and recording of the tax deed. This deed was really the foundation of the plaintiff’s title, and not the judgment upon it. Doubtless the judgment barring the former owner or owners, and those claiming under them, of all right and interest in the lands conveyed by the tax deed, must have proper effect given to it. That action, under the statute of 1859, is in the nature of a suit to quiet title. It is founded upon the assumption that the title is divested by the tax proceedings, as it undoubtedly is where the requisites of the statute upon the subject have been complied with. But if there have been irregularities in the tax proceedings, the former owner has an opportunity of attacking the tax deed, and invalidating it if he is able to do so. If, however, he does not impeach the deed in that action, we suppose he is concluded from afterwards questioning its validity. ■ But still the title passes by the execution and recording of the tax deed, and all questions as to its validity and as to the regularity of the proceedings in imposing the tax and selling the land are conclusively settled and put at rest by the judgment in favor of the grantee, under the provisions of the law of 1859. And, it being admitted that the trespass was committed after the tax deed was recorded, the fact that the action to foreclose that deed was commenced subsequent to the time this suit was instituted, seems to us quite an immaterial circumstance. For these reasons we think the circuit court improperly excluded the judgment offered on the part of the plaintiff.

By the Court. —The judgment of the circuit court is reversed, and a new trial is awarded.