20 Wis. 454 | Wis. | 1866
The appellant claims that the circuit court erred in instructing the j ury, that if they found that the defendant went into possession of the premises, knowing that they belonged to Holdridge, and setting up no right to them in himself, or in any other person under whom he claimed, adverse to the rights of Holdridge, and remained in possession thereof with the assent of Holdridge or his duly authorized agent, and without setting up any claim adverse to the right of Holdridge to the premises, then the law would imply a promise on the part of the defendant to pay to Holdridge or his assigns, whatever the use and occupation was reasonably worth for the time he so held.
It is maintained that there is no evidence to warrant the instruction, and that if there was it is erroneous. It is not very clear from the evidence whether the defendant entered as a trespasser without color of title, or under Johnson, a tenant of Holdridge, and continued in possession by his permission. We are inclined to the opinion that there was evidence from which the jury might have found that Holdridge permitted the defendant to occupy the premises, and that he remained in possession under that permission until the mortgage was assigned to him. But the instruction is to the effect that if he entered as a trespasser without claim of title, and remained in possession with the assent of Holdridge, the law will imply a promise to pay rent. If this be so, then all that is necessary to convert a trespasser into a tenant is, for the owner of the premises to say to him, “ I assent to your possession,” and the trespasser be
In Henwood v. Cheesman tbe court below charged tbat if tbe defendant occupied tbe land by tbe consent and permission of tbe plaintiff, tbe jury might presume a promise to pay a reasonable rent; and tbis instruction was held correct. But it is evident from tbe whole case (tbe testimony in wbicb is not fully reported), tbat tbe defendant either entered into possession by tbe permission of tbe plaintiff, or it was a conceded fact tbat after be was in possession be held under bis permission; for tbe comt, in its opinion, say tbat “ if tbe defendant came on as a trespasser, tbe plaintiff cannot recover in an action for use and occupation.” And to tbe same effect are Stockett v. Watkins' Adm'rs, and Ryan v. Marsh, and other authorities there cited.
In tbis case tbe plaintiff alleges in bis complaint tbat Hold-ridge permitted tbe defendant to have, bold and occupy tbe premises, and 11 that the defendant, according to that permission, held and occupied," &c. Tbe defendant, in bis answer, denies tbe permission of Holdridge, and denies tbat be according to tbe permission held, occupied and enjoyed tbe premises. It
We see no error to tbe injury of tbe appellant in tbe other instructions. From tbe time of tbe assignment of tbe mortgage to tbe defendant, and bis occupation of tbe premises as mortgagee, tbe rents should have been applied to reduce tbe mortgage debt; but if tbat debt has been fully paid without applying tbe rents, no good reason is shown either by tbe pleadings or evidence why tbe plaintiff should not recover what tbe use of tbe premises. during such occupancy was reasonably worth. It may be tbat before tbe code recovery could be bad in such cases only in equity.
By the Court. — The judgment of tbe circuit courtis reversed, and a venire de novo awarded.
