McIntosh v. Bowers

WiNsnow, O. J. The trial court held that Nate Pier’s tax deeds were invalid because the evidence showed that the defendant, Bowers, had actual possession of the land during the three years after the issuance of each of her tax deeds [76] •and bence ber title was barred by limitation. We are urged to reverse the court’s finding as to Bowers’s possession, but find ourselves unable to say that it is against the clear preponderance of the evidence. The trial court also held that ‘Comstock’s title was invalid because by the proceedings in the county court of Yiles county ’in the spring of 1904 the Nathan title was conveyed to George and by him to Bowers in June following, thus leaving no title to pass under the cir•cuit court proceedings which took place in October, 1904. This holding we consider erroneous. The evidence is undisputed that these proceedings were conducted before Judge •ColMAN, county judge of Vilas county, entirely in Shawano •county from beginning to end, and, further, that Judge Col-matt was interested as a stockholder in a brick company which it was agreed should receive, and did in fact receive, from George (the purchaser) the title to one tract of the lands sold. The county court is required by law to be held at the ■county seat, except in the case of county courts possessing •civil jurisdiction. Sec. 2440, Stats. (1898). We know of ¡no authority, however, for holding any county court outside of the county. Were it to be admitted that this objection could not be raised collaterally, still the fact that the county judge was pecuniarily interested in the proceeding would be fatal. Our statute wisely provides that a judge of a court of record who is interested in any action or proceeding “shall not have power” to hear and determine the action or proceeding, or make any order therein, except by consent of the parties. Sec. 2579, Stats. (1898). There was no consent here, and could be none as to the interests of the minors. This statute deprives the judge of power, and orders made in violation of it are not only irregular but absolutely void, and hence subject to collateral attack. Case v. Hoffman, 100 Wis. 314, on page 356, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945; 1 Freeman, Judgments (4th ed.) § 146; Horton v. [77] Howard, 79 Mich. 642, 44 N. W. 1112. So tbe proceedings by which the land in question was deeded to Comstock in October appear to be valid so far as the evidence in this action discloses; but the respondent attacks them now by saying-that they are the same proceedings which were attacked and declared void in the case of Kathan v. Comstock, 140 Wis. 427, 122 N. W. 1044, which was an action brought by the-Kathan heirs against Comstock, Kate Pier, and the plaintiff, McIntosh, for the express purpose of setting aside and vacating said proceedings and the deed to Comstock based thereon. This seems to be true, but the difficulty is that the last-named action was not brought until after the present action,, and the judgment therein was not rendered until after judgment in the present action; hence that judgment was not pleaded nor was it capable of being considered in the present action. It is equally plain that we cannot consider it upon this appeal. Inasmuch, however, as it is settled in the case that Bowers was in possession, claiming title under a land contract from Kathan, when Comstock obtained his title as well as when the Pier tax deeds were executed, Comstock took the title and McIntosh the mortgage charged with notice of Bowers’s rights under his purchase, and the mortgage would be subject to those rights. First Nat. Bank v. Chafee, 98 Wis. 42, 73 N. W. 318. So while there must be a reversal upon the pleadings and facts shown by the evidence in this case, no judgment can be ordered, but the case must be sent back for completion of the trial. If there be no application for leave to plead the judgment in the other case by way of supplemental answer, then the only question upon which evidence will be necessary or allowable will be the question of the defendant Bowers’s interest under his contract of purchase at the time of the Corn-stock deed. If he had fully paid the purchase price and was-entitled to his deed the mortgage could have no effect, but if [78] there was a part of the purchase money still unpaid the mortgage would attach to that interest. If there he application to plead the judgment in the other ■action by supplemental answer, the question whether such plea shall be allowed or not will rest in the sound discretion •of the trial court. As the question whether such a plea ■should be now permitted and the question of the effect of such a plea, if allowed, have neither of them been presented to this court, we indicate no opinion upon them. By the Court. — Judgment reversed, and action remanded for further proceedings according to law. Timlin and BaRNes, JJ., took no part.