
    The Security Trust Company v. Root.
    
      Doctrine of Us pendens does not apply — To sales of land for taxes— Sections 2838 and 2880, Revised Statutes — State lien for taxes paramount to all other liens — Sale of land while foreclosure suit is pending — Lien laws.
    
    The doctrine of lis pendens does not apply to sales of land for taxes. By virtue of section 2838, Revised Statutes, the lien of the state for taxes is paramount to all other liens, and inasmuch as by force of section 2880, Revised Statutes, the lien of the state is transferred to the purchaser at a tax sale, the purchaser’s claim upon such lien is not affected by the fact that at the time of the sale a suit is pending to foreclose and extinguish the title of the owner, to which suit the purchaser is not a party.
    (No. 8740
    Decided June 27, 1905.)
    Error to the Circuit Court of Lucas county.
    The action below was brought in the common pleas of Lucas by the Security Trust Company against C. W. Root, to quiet title to certain lands situate in that county. It was shown by the petition that the title of plaintiff was acquired by sheriff’s deed made in pursuance of a judgment and decree in foreclosure of a mortgage made to the plaintiff by the then owner of the land, one Emrick. The suit was commenced December, 1902. The plaintiff herein was plaintiff in that suit. The judgment against Emrick was for $4,775.34, rendered February, 1903. The property was sold in March following for $4,001.00, and the sale having been approved the proceeds were applied first in payment of costs, and the balance upon the plaintiff’s judgment, leaving some $774.34 still due plaintiff;
    The defendant’s claim arose from a purchase by him at a delinquent tax sale inhde in January, 1903, by the county treasurer, the taxes amounting to $142.64, which sum the defendant paid and received from the county ■ auditor a certificate of purchase of the premises.
    A demurrer having-been interposed to this petition and sustained, judgment was rendered by the common pleas for the defendant. This judgment was affirmed by the circuit court and the plaintiff brings error.
    
      Mr. B. A. Hayes, for plaintiff in error.
    
      Mr. J. C. Munger, for defendant in error.
   By the Court.

The claim of the plaintiff in error is based upon the doctrine of lis pendens as expressed in section 5052, Revised Statutes, as follows: “When the summons has been served, or the publication made, the action is pending so as to charge third persons with notice of its pendency; and while pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff’s title.” Counsel argue that inasmuch as the purchaser under foreclosure proceedings takes the place of both mortgagor and mortgagee, and as the mortgagee was plaintiff in the foreclosure suit under which plaintiff acquired title, the defendant, who purchased at the tax sale while the action of foreclosure was pending, acquires no interest as against the title of the mortgagee in the premises involved in the foreclosure suit.

This is good doctrine as applied to interests in real estate generally, but the claim of defendant in error rests upon section 2880, Revised Statutes, which provides: “Upon the sale of any land or town lot for delinquent taxes, the lien which the state has thereon 'for taxes then due shall he transferred to the purchaser at such sale, ’ ’ et cetera. The lien of the state for taxes could not he ousted by a sale in foreclosure, and the state’s lien having been, by virtue of this statute, transferred to the purchaser at the sale, it was neither satisfied nor discharged by the decree in foreclosure and the sale thereunder. The taxes were a lien paramount to all other liens and claims when the foreclosure suit was commenced, and the taxes were then delinquent as shown by the treasurer’s duplicate, and before decree the auditor’s duplicate gave constructive notice that the defendant had purchased and had acquired a tax certificate. It was the duty of the plaintiff to take notice of these tax proceedings and govern itself accordingly. Not having done so it must, like other negligent parties, abide the result.

Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.  