The petition in this case alleges that the, plaintiff is the owner of the one-half of two quarter sections of land under a deed conveying the same in fee to him, executed on the eighth day of July, 1895, which was duly recorded. That on the-day of-, 1898, the collector of the revenue of the county in which the land is situated, brought suit for delinquent taxes thereon; that the plaintiff was not made a party to this action; that the persons named as defendants therein had no title whatever to said land; that it proceeded to judgment and order of sale whereon, on the fifth day of October, 1899, the land was sold to the defendant for the sum of $57; that plaintiff had no notice or knowledge whatever of the pendency of said tax suit or the rendition of the judgment and order of sale therein. The petition prays that the sheriff’s sale of said land be declared void and that he be enjoined from delivering a deed to the purchaser thereunder and for general relief.
The answer admits all the allegations of the petition as to the ownership of plaintiff of said land, and his non-joinder as a defendant in the proceedings to sell the same, brought by the collector of the revenue, and sets up as an affirmative defense that the plaintiff appeared at the sale of the land made by the sheriff and participated in the 'bidding therefor and was next to the highest bidder at the time when it was struck off to the defendant, and never disclosed any interest or ownership in said land until after it had been thus stricken off, whereupon plaintiff turned to defendant and stated that he, *61plaintiff, was tbe owner of that land and bad not been made a party to tbe tax suit and that defendant would get no title by bis purchase. All of wbicb tbe answer pleads as an estoppel to plaintiff from asserting or claiming any title to said land against this defendant. Tbe ease went to trial and a decree was entered dismissing plaintiff’s petition, from wbicb be has appealed to this court.
Tbe sole object of tbe suit is to set up title to plaintiff in tbe real estate described therein. Tbe only defense is that plaintiff’s title was defeated by plaintiff’s conduct, creating an estoppel in pais. Tbe sustension of this defense by tbe lower court necessarily operates, unless reversed on appeal, to deprive plaintiff of any title to tbe land in question against tbe defendant. If tbe matters pleaded in tbe answer constitute an estoppel in law, then tbe admitted title of plaintiff to the land is invalidated as to tbe defendant. In passing on tbe sufficiency of the defense set up in tbe answer, we necessarily pass upon tbe validity or invalidity of plaintiff’s title. We do not, therefore, perceive bow tbe conclusion can be avoided, that this action involves tbe title to real estate in a constitutional sense and that tbe appeal taken herein should have been to tbe Supreme Court and not to this court. In accordance with tbe statute governing such cases (Revised Statutes 1899, section 1651), tbe ease is hereby transferred to tbe Supreme Court.
All concur.