
    TAXATION — LIS PENDENS.
    [Lucas (6th.) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Haynes, JJ.
    Security Trust Co. v. C. W. Root.
    Lis Pendens Does not Apply to Purchaser at Delinquent Tax Sale.
    The doctrine of lis pendens does nqt apply to a purchaser at delinquent tax sale held during the pendency of an action to foreclose a mortgage on the same property, and the title or interest so acquired is a lien upon and-can be asserted against the title of the purchaser at the foreclosure sale, where the former title or interest was not attacked in, or the owner thereof made a party to, the action in foreclosure, notwithstanding the provision of Sec. 5055 Rev. Stat. that no interest can be acquired by third persons in the subject matter of a pending action as against the plaintiff’s title.
    Error to court of common pleas of Lucas county.
    Birchard A. Hayes, for plaintiff in error.
    'John C. Munger, for defendant in error:
    The lien of the state or purchaser at delinquent tax sale for taxes cannot be defeated by a pending foreclosure suit. The doctrine of lis pendens does not apply. Ketcham v. Fitch, 13 Ohio St. 201; Roberts v. Doren, 10 Re. 349 (20 Bull. 397) ; Bigelow, Fraud 297; State v. God-frey, 10 Circ. Dec. 31G (20 R. 649) ; State v. Godfrey, 62 Ohio St. 18 [56 N. E. Rep. 482] ; Wright v.' Walker, 30 Ark. 44; Boykin v. Jones, 67 Ark. 571 [57 S. W. Rep. 17] ; Irving v. Cunningham, 77 Cal. 52 [18 Pac. Rep. 878] ; Wilson v. Bank, 121 Cal. 630 [54 Pac. Rep. 119] ; Barelli v. Delassus', 16 La. Ann. 280; Flower v. Beasley, 52 La. Ann. 2054 [28 So. Rep. 322]; Becker v. Howard, 4 Hun (N. Y.) 359, affirmed Becker v. Howard, 66 N. Y. 5; Sec. 2880 Rev. Stat.
   PARKER, J.

In the court below a general demurrer to the petition was sustained, and plaintiff not desiring to plead further, a judgment was entered against him, and thereupon he prosecutes error to this court, so that the question presented here is, whether the petition contains facts sufficient to constitute a cause of action in favor of plaintiff and against defendant. Plaintiff sets forth in its petition that it is the owner of the westerly thirty-eight feet of lot ten, Machen’s first addition to the city of Toledo. It then sets out in detail how it came to be’the «owner of these premises. The history of the matter, in brief, is, that at one time defendant had a mortgage upon the premises; that it foreclosed the mortgage, bid the-premises in at foreclosure sale, which was confirmed and a deed made. Then it sets forth that pending these proceedings in foreclosure the premises were sold for taxes at a delinquent sale to the defendant, Root; that Root acquired a certificate such as is provided, by law showing that he was the purchaser at- this tax sale -and that Root claims to have a lien on the premises by virtue of the proceedings under the tax sale. The plaintiff contends that Root having purchased pending these foreclosure proceedings, took subject to the doctrine of lis pendens and acquired no interest that can be asserted against plaintiff’s title.

In State v. Godfrey, 10 Circ. Dec. 316 (20 R. 649), we had a similar state of facts under consideration. The real question there was as to the duty of the auditor to make a transfer upon the books, the question •arising between one who had purchased the premises at foreclosure sale and one who had acquired a tax title. Our decision there was reversed by the Supreme Court in State v. Godfrey, 62 Ohio St. 18 [56 N. E. Rep. 482]. We had occasion to discuss the question arising in this casé, and in the course of the opinion this was said:

“The lien of taxes on land, in favor of the state, and the right of the state to proceed to the collection thereof, in the mode provided by law, are paramount to the ownership or interests of private parties and are not affected by the circumstance that a suit may be pending to foreclose and extinguish the title of the owner. It is not necessary or proper to make officers, upon whom the duty devolves to- collect these revenues, or the state, or political bodies, to which these revenues go, parties defendant in the action. The government and its officers are not to be hindered, delayed or obstructed in proceeding according to-law to* collect taxes for the support of the government, by the litigation of private persons, with respect to rights and interests subordinate to the claims of the state.
“To hold otherwise would be to read into the tax laws important conditions and limitations not appearing there, and would be wholly unauthorized. Such provisions would make it easy by fictitious or long drawn out litigation to defeat the evident and proper policy of the state, that is, to make prompt collection of its revenues. That this is not permissible and is wholly obnoxious to the policy of the law, is evident from many of the provisions of the tax laws and from their general scope and obvious policy. The rights of the purchaser at a tax sale under circumstances like those set forth here, are not affected by the foreclosure of'the mortgage. We think that is a necessary conclusion to be drawn from the holding in Ketcham v. Fitch [13 Ohio St. 201] supra. As to such purchases the rules of lis pendens do not apply, and to his lien or title acquired from the state the effects of lis pendens do not attach.”

We still adhere to the views there expressed and just quoted, which views we believe are not antagonized by the reversal of the judgment by the Supreme*Court. Counsel for plaintiff in error insist that we did not upon that occasion give consideration to the provisions of Sec. 5055 Rev. Stat. upon the subject of lis pendens. That section reads:

“When the summons has been served, or 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 sub >ect matter thereof, as against the. plaintiff’s title.”

But the doctrine of Us pendens does not apply to one who obtains an interest in the subject matter of the suit through one having a superior title or lien to that asserted in the suit relied on as a lis pendens when such superior title or lien is not attacked in such suit, and the owner' thereof is not a party to the suit; therefore the doctrine of lis pendens does not apply to one acquiring an interest or lien at a tax sale. And this principle receives illustration in the case of Porter v. Barclay, 18 Ohio St. 546, 547. Counsel for plaintiff in error also cites in support of his contention the case of Crum v. Cotting, 22 Iowa 411. The fourth proposition-of the syllabus reads:

“A purchaser of real estate at a tax sale made after the commencement of an action and the filing of a petition to fofeclose a mortgage on such estate in favor of the university fund, acquires no interest in the premises as against such mortgagees which would not be cut off or bound by the decree in favor of said fund.”

But that authority is not in point here and should have no influence upon our decision for the reason that the decision was compelled by a statute of the state of Iowa, which provides:

Section 811. “That in all cases where real estate is mortgaged 'or otherwise incumbered to the school or university fund of this state, the interest of the person who holds the fee title shall alone be sold for taxes, and in no case shall the lien or interest of the state be affected by any sale of such.incumbered real estate made for taxes.” * * *

This makes the claim for taxes subordinate to the claim or interest of the state under a mortgage to the school or university founded by the state.

On the other hand, counsel for defendants in error have cited a number of cases in support of the contention that the purchaser at a tax sale is not affected by the lis pendens — decisions of courts of other states — but we have not deemed it necessary (being so fully convinced upon this point), to examine, those cases. They will be found in the brief of counsel.

The judgment of the common pleas court in this case will.be affirmed.  