#### McIntosh, Appellant, vs. Bowers and wife, Respondents.

*April 26*

May *24, 1910.*

*Courts: Holding county, court in another county: Judges disqualified, by interest: Consent: Void orders: Collateral attack: Appeal: Matters considered: Judgment in another case: Possession of land: Notice of rights: Mortgages.*

*1.*Proceedings in the county cqurt of one county, conducted entirely in another county, are invalid.

2. Orders made in violation of sec. 2579, Stats. (1898) — providing' that a judge of a court of record who is interested in an action or proceeding shall not hajve power to hear and determine the same or to make any order therein, except with the consent of' the parties, — are absolutely void and hence subject to collateral attack.

3. As to the interests of minor parties in such a case there could' be no consent tos the making of an order by a disgualified judge..

4. A judgment declaring void certain proceedings could not be considered on an appeal from an earlier judgment rendered in an earlier action in which, though the same proceedings were involved, their invalidity did not appear.

5. Actual possession of land by one claiming under a land contract is notice of his rights to one obtaining a conveyance from the heirs of the vendor in such contract, and to one taking a mortgage executed jointly by such grantee of the heirs and by a holder of tax deeds of the land; and the mortgage is subject to. those rightSi

Appeal from a judgment of the circuit court for Shawano county: JohN GoodlaNd, Circuit Judge.

*Reversed.*

Action by mortgagee to quiet title to a forty-acre tract of land in Yilas county. Defense, ownership in fee. The plaintiff’s mortgage was executed October 25, 1904, by Kate Pier and E. G. Comstock jointly to secure a promissory note given to the plaintiff by Kate Pier. Kate Pier’s title consisted of three tax deeds issued to her by Oneida county May 16, 1891, May 23, 1892, and September 29, 1893, respectively. E. G. Comstock’s title consisted of a deed executed October 24, 1904, by Hattie P. Kathan, as special *75guardian of Eleanor .Nathan and others, minor children of’ Joseph E. Nathan, deceased, who obtained title to the premises from the state in 1884. This deed was executed in the course of proceedings taken in the circuit court for Vilas, county, under sec. 3503 *et seq.,*Stats. (1898), in October, 1904, for the sale of this and twenty-one other tracts of land in Vilas county, in which the minor heirs of Joseph E. Nathan had some interest.

Neither Nate Pier nor E. G. Comstock had ever had possession of the land in question. The plaintiff claimed and introduced evidence tending to prove that it had always been unoccupied land, but defendant claimed that he had occupied it since 1891 by cutting wood thereon annually and raising, potatoes upon a part thereof, and by maintaining a building, thereon since 1892 which he occupied while cutting timber and cultivating the land. Defendant further claimed that he purchased the land for $150 from Nathan in 1892 and that his occupation was under claim of title, but that he obtained only a contract from Nathan, and in March, 1904, after Nathan’s death, the land with other lands was sold in the course of proceedings in the county court of Vilas-county under said sec. 3503 *et seq.,*Stats. (1898), to one-D. H. George, who deeded the same to the defendant in June, 1904.

The circuit court found the facts in accordance with the defendants’ contentions and dismissed the complaint, and the plaintiff appeals.

The cause was submitted for the appellant on the brief of *O. H. Tan Alstine,*and for the respondents on that of *Wall-rich, Dillett <& Larson.*

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 *78there 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.