FARRAND et al. v. LAND & RIVER IMP. CO. et al., 86 F. 393

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. Without further mention of the name of Bright, the case will be considered as if Hayes had been the sole attorney for Porter, and alone responsible for what was done. It is entirely clear that if he 'was guilty of wrong towards Porter or the complainants it was a purely constructive and unintended wrong. He was employed to collect a note, not to “perfect or defend a particular title to land;” and down to the entry of the judgment no dereliction of duty is alleged.

Whether it was his duty to see that the judgment was properly docketed may be doubtful under the decision in Hesse v. Mann, 40 Wis. 560, but, if he was at fault in that respect, the extent of his liability for the negligence was the injury done, which would be the value of the lien which was lost, if there was no other property subject to levy; and in no event could the liability exceed the amount of the judgment.

Such negligence is cause for an action at law, and affords no, basis whatever, in principle or by authority, for the assertion that Hayes was precluded from ae- , quiring an interest in or title to the land on which the judgment, by proper docketing, would have been made a lien. There is manifestly the same objection to the kindred proposition that Hayes was precluded from acquiring title to land in which, while Porter was living, he knew Ray had an interest which he ought to have subjected to the payment of the judgment.

For that negligence, too, if he was guilty of it, he was liable at law to the extent of the injury done, not exceeding the amount of the judgment; and his right thereafter to deal with land, on which a lien might have been, but was not, established, was in no sense affected. And, indeed, if the judgment had been from the begin-king, or had been made, a lien upon the land, the only restriction upon his right to acquire the tille or an interest would have been that he must take subject to the lien.

His duty, on that supposition, would have forbidden any act which would impair his client’s right, but it did not make him “a trustee for the entire title,” of whatever value it should become, beyond the amount of the lien. In order to fasten the alleged trust upon the entire title and interest in the land, it was necessary to show that the title was in fact in Forter.

Anything short of that, as that there was no lien when there ought to have been one, or that there was a lien which ought to have been made a title, is not enough, for the reason, already stated, that the injury, if attributable to the negligence of Hayes, was remediable at law, or at most could have had the effect only to make the title acquired by Hayes subject to the lien, if lien there was. That the title to the land was never in Porter is clear, even if the lien of the judgment and execution upon the land, the title of Kay, and the validity of the execution be conceded.

The doctrine is elementary that there must be a grantee before a grant can take effect, and that a patent to one who is dead passes no title. Galloway v. Finley, 12 Pet. 264. “A patent to a fictitious person is, in legal effect, no more than a declaration that the government thereby conveys the property to no one.” Moffat v. U. R, 112 U. S. 24, 5 Sup. Ct. 10.

There is nothing to change the rule in the Wisconsin statute, which, when a judgment plaintiff shall have died, authorizes the issue of execution “in the same manner and with like effect as though tlie person in whose favor the same was rendered was still living.” Porter had no title. He had no lien, because a judgment in the county court did not become a lien unless docketed in the circuit court.

This we think clear upon the statutory provisions which bear upon the question; but if it were conceded that such docketing was not necessary, and that the judgment became a lien from the date of rendition and entry in the county court, the lien was devested hv the tax deed to Kiley. In the absence of proof of irregularities in the tax sale, the corrected deed, though not recorded, was effective to convey title. State v. Winn, 19 Wis. 323; Hewitt v. Week, 59 Wis. 444, 18 N. W. 417.

It is urged that Hayes had in his possession money with which lie should have redeemed from the sale, and prevented the issue of the deed to Kiley; but that is a clear mistake. Porter’s death terminated all agency, and whatever money nayes was chargeable with, actually or constructively, he held for the use of the executor or administrator of Porter’s estate, and had no right to use it in the manner suggested.

But, even if it had been within his authority and duty to redeem from the sale, his failure to do it was at most the subject of an action at law for damages, the measure of which conld not have exceeded the amount of the judgment, and affords no ground for asserting an estoppel against Hayes to deny the existence of a lien which in fact had been extinguished years before. Aside, therefore, from the doctrine of laches, which we agree was such as ought to bar the suit, there is not, and never has been, ground for the relief sought.

The pending of litigation between other parties oyer the land afforded these complainants no excuse for delaying to bring their suit. The decree below is affirmed.