Maeshall, J.
Counsel for appellants invoke Webster v. Pierce, 108 Wis. 407, 83 N. W. 938, in support of the proposition that the answer of Delon A. Doolittle disclaiming any interest in the premises described in the complaint, and admitting the plaintiff’s right thereto, as alleged, not being in any way falsified, entitled him to judgment dismissing the complaint with costs, notwithstanding ch. 152, Laws of 1901. It was held in that case that the constructive possession of unoccupied land by the grantee in a tax deed by reason of the recording thereof, terminates upon his transferring his tax title to another, thorrgh the instrument affecting such transfer is not recorded, and that in case an action of ejectment is commenced against him by the former owner, so called, such owner not knowing of such transfer, the answer of such grantee containing a full disclaimer, until falsified by the plaintiff, is a complete defense to the plaintiff’s cause of action and renders him liable for costs, though the dismissal of the complaint will have the effect to settle the title in the latter’s favor, as between him and the defendant. That would rule this case in appellants’ favor, if it were not for ch. 152, aforesaid, which provides that the owner of unoccupied land may maintain ejectment therefor “against the person in whom the title appears of record in the office of the register of deeds in and for the county in which said premises are located, at the commencement of the action. Every judgment rendered in any such action shall be conclusive as to [40]*40the title established therein, upon the party against whom it is rendered and upon all persons claiming from, through or under him by title accruing after the filing of a notice of the pendency of the action in the office of ‘the proper register of deeds, . . . and every purchaser whose conveyance is not recorded or filed shall be deemed to have acquired his title after the filing of such notice, and shall be bound by the proceedings in the action to the same extent and in the same manner as if he were a party thereto.”
Counsel contend that it was not intended by such a law to affect a defendant in the circumstances of this case, but that its purpose was to bind the holder of an unrecorded deed as to his claim of title the same as if he were a defendant and answered by a disclaimer.
The language of the law above quoted is not ambiguous. By its terms it clearly avoids the effect of the decision in Webster v. Pierce, and doubtless was passed for that very purpose. Taking it as it reads, and we are unable to perceive any reason why it should not be so taken, it provides in effect that, whereas prior to the enactment thereof an action in ejectment was not maintainable against a person in the circumstances of appellant Lelon A. Doolittle in this case, that may now be done. That being so, manifestly upon an action being so properly brought the defendant cannot, by a mere disclaimer, put the plaintiff in the wrong and obtain a judgment for costs against him.
The appellant Bessie W. Doolittle was properly made a defendant as the wife of Lelon A. Doolittle, but she was charged with personal liability for withholding the land from the plaintiff and was therefore required for her protection to answer the complaint. As to such personal claim, plaintiff was not warranted in charging her under the statute aforesaid, because she had no apparent record title. Consequently her answer disclaiming title contained a complete defense to the cause of action against her charging personal liability. Web[41]*41ster v. Pierce, supra. It follows tbat tb© order striking out ber answer as frivolous was wrong.
Tbe answer of appellant Lelon A. Doolittle, since, in addition to a disclaimer, it set forth facts to tbe effect tbat when tbe action was commenced be appeared to be tbe owner of tbe land by virtue of a tax deed, tbougb be bad in fact theretofore conveyed bis tax title claim to another, and tbat tbe fax deed was void, and plaintiff was entitled to recover subject to bis statutory right to protection for tax claims, — confessed tbe plaintiffs case and afforded him an opportunity to move for an order for judgment on tbe pleading, subject to •such statutory right. We fail to see bow tbe answer could be ■deemed frivolous in any sense. An answer is not frivolous merely because it admits tbe claim of tbe plaintiff, or in case ■of this kind, in addition to such admission, pleads tbe existence of facts showing tbat tbe defendant is entitled to tbe statutory protection accorded to one when another is entitled to recover land from him by reason of tbe invalidity of a tax deed. Such an answer does not purport to defend against the claim of the plaintiff, nor does it present to tbe court for •consideration anything except what is proper to be and necessarily must be considered. Therefore, tbe order of tbe ■court striking out tbe answer of defendant Lelon A. Doolittle as frivolous was erroneous.
Notwithstanding tbe foregoing, since after tbe answers were stricken out, plaintiff established bis cause of action by ■evidence as to Lelon A. Doolittle, and obtained, as to him, and also as to bis wife, so far as she was merely charged as ■such, tbe judgment which be might have secured by motion ■on tbe pleading, be was not prejudiced by striking out bis answer. The fact tbat tbe order contained a provisional requirement for tbe payment of $10 costs does not affect tbe matter, since no costs were in fact paid, nor required to be paid in order to protect any valuable rights of bis.
[42]*42Counsel insist that Lelon A. Doolittle should have been permitted to make proof, as follows:
(a) That he had conveyed the tax title before this action was begun;
(b) That no notice of Us pendens had been filed;
(c) Of the amount of expenditures, tax certificates, tax-deed fees, recording, etc., upon which the tax deed was based..
On the first point, as we have seen, evidence was immaterial. On the second point evidence was also immaterial,, since if respondent failed to take any steps necessary to bar one not before the court that person could not be prejudiced by want of proof in the action of such failure. On the third point it is sufficient to say that the striking out of the answer did not preclude Lelon A. Doolittle from making the proof. His right to be present and participate in the ascertainment of the amount respondent should pay as a condition of relief, under the statute for the protection of the equitable claims of tire defendant in such cases, was unimpaired. The determination of that question was not a part, strictly speaking, of the trial of the issues tendered by the complainant. The statute in that regard is mandatory.
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Maeshall, J.
Counsel for appellants invoke Webster v. Pierce, 108 Wis. 407, 83 N. W. 938, in support of the proposition that the answer of Delon A. Doolittle disclaiming any interest in the premises described in the complaint, and admitting the plaintiff’s right thereto, as alleged, not being in any way falsified, entitled him to judgment dismissing the complaint with costs, notwithstanding ch. 152, Laws of 1901. It was held in that case that the constructive possession of unoccupied land by the grantee in a tax deed by reason of the recording thereof, terminates upon his transferring his tax title to another, thorrgh the instrument affecting such transfer is not recorded, and that in case an action of ejectment is commenced against him by the former owner, so called, such owner not knowing of such transfer, the answer of such grantee containing a full disclaimer, until falsified by the plaintiff, is a complete defense to the plaintiff’s cause of action and renders him liable for costs, though the dismissal of the complaint will have the effect to settle the title in the latter’s favor, as between him and the defendant. That would rule this case in appellants’ favor, if it were not for ch. 152, aforesaid, which provides that the owner of unoccupied land may maintain ejectment therefor “against the person in whom the title appears of record in the office of the register of deeds in and for the county in which said premises are located, at the commencement of the action. Every judgment rendered in any such action shall be conclusive as to [40]*40the title established therein, upon the party against whom it is rendered and upon all persons claiming from, through or under him by title accruing after the filing of a notice of the pendency of the action in the office of ‘the proper register of deeds, . . . and every purchaser whose conveyance is not recorded or filed shall be deemed to have acquired his title after the filing of such notice, and shall be bound by the proceedings in the action to the same extent and in the same manner as if he were a party thereto.”
Counsel contend that it was not intended by such a law to affect a defendant in the circumstances of this case, but that its purpose was to bind the holder of an unrecorded deed as to his claim of title the same as if he were a defendant and answered by a disclaimer.
The language of the law above quoted is not ambiguous. By its terms it clearly avoids the effect of the decision in Webster v. Pierce, and doubtless was passed for that very purpose. Taking it as it reads, and we are unable to perceive any reason why it should not be so taken, it provides in effect that, whereas prior to the enactment thereof an action in ejectment was not maintainable against a person in the circumstances of appellant Lelon A. Doolittle in this case, that may now be done. That being so, manifestly upon an action being so properly brought the defendant cannot, by a mere disclaimer, put the plaintiff in the wrong and obtain a judgment for costs against him.
The appellant Bessie W. Doolittle was properly made a defendant as the wife of Lelon A. Doolittle, but she was charged with personal liability for withholding the land from the plaintiff and was therefore required for her protection to answer the complaint. As to such personal claim, plaintiff was not warranted in charging her under the statute aforesaid, because she had no apparent record title. Consequently her answer disclaiming title contained a complete defense to the cause of action against her charging personal liability. Web[41]*41ster v. Pierce, supra. It follows tbat tb© order striking out ber answer as frivolous was wrong.
Tbe answer of appellant Lelon A. Doolittle, since, in addition to a disclaimer, it set forth facts to tbe effect tbat when tbe action was commenced be appeared to be tbe owner of tbe land by virtue of a tax deed, tbougb be bad in fact theretofore conveyed bis tax title claim to another, and tbat tbe fax deed was void, and plaintiff was entitled to recover subject to bis statutory right to protection for tax claims, — confessed tbe plaintiffs case and afforded him an opportunity to move for an order for judgment on tbe pleading, subject to •such statutory right. We fail to see bow tbe answer could be ■deemed frivolous in any sense. An answer is not frivolous merely because it admits tbe claim of tbe plaintiff, or in case ■of this kind, in addition to such admission, pleads tbe existence of facts showing tbat tbe defendant is entitled to tbe statutory protection accorded to one when another is entitled to recover land from him by reason of tbe invalidity of a tax deed. Such an answer does not purport to defend against the claim of the plaintiff, nor does it present to tbe court for •consideration anything except what is proper to be and necessarily must be considered. Therefore, tbe order of tbe ■court striking out tbe answer of defendant Lelon A. Doolittle as frivolous was erroneous.
Notwithstanding tbe foregoing, since after tbe answers were stricken out, plaintiff established bis cause of action by ■evidence as to Lelon A. Doolittle, and obtained, as to him, and also as to bis wife, so far as she was merely charged as ■such, tbe judgment which be might have secured by motion ■on tbe pleading, be was not prejudiced by striking out bis answer. The fact tbat tbe order contained a provisional requirement for tbe payment of $10 costs does not affect tbe matter, since no costs were in fact paid, nor required to be paid in order to protect any valuable rights of bis.
[42]*42Counsel insist that Lelon A. Doolittle should have been permitted to make proof, as follows:
(a) That he had conveyed the tax title before this action was begun;
(b) That no notice of Us pendens had been filed;
(c) Of the amount of expenditures, tax certificates, tax-deed fees, recording, etc., upon which the tax deed was based..
On the first point, as we have seen, evidence was immaterial. On the second point evidence was also immaterial,, since if respondent failed to take any steps necessary to bar one not before the court that person could not be prejudiced by want of proof in the action of such failure. On the third point it is sufficient to say that the striking out of the answer did not preclude Lelon A. Doolittle from making the proof. His right to be present and participate in the ascertainment of the amount respondent should pay as a condition of relief, under the statute for the protection of the equitable claims of tire defendant in such cases, was unimpaired. The determination of that question was not a part, strictly speaking, of the trial of the issues tendered by the complainant. The statute in that regard is mandatory. It provides that when a plaintiff shall establish his right to recover “unless it shall bo made to appear affirmatively by the plaintiff that the premises claimed were not liable to taxation for the taxes for which they were sold, or that such tax was paid prior to the sale, or the land was redeemed from such sale, the court shall order that the amount for which such land was sold, and the cost of executing and recording such tax deed, and the amount paid by the defendant for taxes assessed upon such premises subsequent to said sale, with interest on all such sums at tire rate of fifteen per cent, per annum for the time so paid until the date of the verdict, shall be set off against the damages awarded to the plaintiff by the verdict; and if there be any excess, that the plaintiff as a condition of judgment, shall pay the same, with interest from the date of the verdict, with[43]*43in ninety days.” Sec. 3087,,Stats. 1898. So, strictly speaking, it will be seen the proceedings in execution of the statute properly take place after the preliminary question of whether plaintiff is entitled to recover subject thereto, shall, have been determined.
As to the defendant, Bessie W. Doolittle, counsel contend that her position is different from that of her husband because there was no allegation in the pleadings as to her wife-hood, and she was charged as a wrongdoer the same as her husband. True, she was so charged, but she was properly-joined with her husband by reason of the inchoate right of dower which she possessed in the land, contingent upon her husband having title thereto. It clearly appeared by the-pleadings, regardless of the body thereof, that she is the wife-of Lelon A. Doolittle. She is so described in the title to the action in the complaint, she so describes herself in her answer and her husband likewise describes her in his answer. If she-had been simply made a defendant in her capacity as wife,, she would not have been required to answer in order to protect herself from danger of a judgment for. costs. Not sor however, in view of the fact that she was charged with a personal liability and was required to answer. As the situation-created by her disclaimer, and the want of any falsification, thereof, was not affected by the law of 1901, there being no-claim that she had any apparent title to the land in question-when the action was commenced, why the rule in Webster v. Pierce, supra, does not condemn the order striking out her-answer 'as frivolous, and the judgment denying costs to her against the respondent, is at least a debatable question.
If the appellant Bessie W. Doolittle was entitled to recover costs from the respondent by prevailing on her disclaimer, notwithstanding the recovery against her in her capacity as wife of her codefendant, the authority therefor-exists in sec. 2920, Stats. 1898. That provides that unless-plaintiff is entitled to recover costs under' the two preceding; [44]*44•sections, where there are several defendants “not united in interest and making separate defenses by separate answers :and the plaintiff recovers against one or more, but not all of -such defendants, the court may award costs to such of the defendants as have judgment in their favor, or any one of ¿them.” It is considered that since the plaintiff here would have been entitled in any event to recover against Mrs. Doolittle as to any apparent right of dower, the fact that she was «entitled to prevail as to the personal liability charged against her does not sufficiently satisfy the calls of such section as to permit of her recovering costs. ' The writer of this opinion «•does not join in that view. They are the views of the court. His views on this subject will be stated briefly in an independent opinion.
By the Court. — The judgment is affirmed.