Buel v. Buel, 76 Wis. 413

Buel v. Buel

76 Wis. 413 | Wis. | 1890

Cassoday, J.

It is conceded that the defendant and his wife peaceably entered into the possession of the premises in question, seventeen years before the commencement of this action, under the agreement mentioned in the foregoing statement. By the terms of that agreement they were to have and enjoy the possession of such premises as a home, free and without any reservation of rent, during their lives. Upon the faith of that agreement the defendant made the improvements mentioned. The plaintiff testified, in effect, that he always regarded the buildings so put upon the place as belonging to his father; that he never leased the premises to his lather, but gave him possession for life, as stated. Had such agreement been evidenced by writing, executed in due form of law, it would have created in the defendants estates for life, and the same would have been denominated “ estates of freehold.” Sec. 2029, K. S. The same section provides that estates of a minor character, as “estates for years, shall be denominated chattels real, and estates at will or l>y sufferance shall be chattel interests.”

This is an action of unlawful detainer. It is conceded by the learned counsel for the plaintiff that such an action *416cannot be maintained unless the relation of landlord and tenant exists between the plaintiff and the defendant. In such cases the statute only authorizes such action where “ any tenant or lessee at will, or by sufferance, or for any part of a year, or for one or more years, of any real property, . . . and the assigns, under-tenants, or legal representatives of such tenant or lessee,” holds over, in the manner prescribed in see. 3358, R. S. Prior to the time when the legislature of this state borrowed that statute from New York, it was said by Savage, C. J., speaking for the whole court: “This statute is applicable between landlord and tenant only.” It “ was clearly designed to afford a speedy remedy where .the conventional relation of landlord and tenant existed, and not where that relation is created by operation of law.” Evertson v. Sutton, 5 Wend. 281; S. C. 21 Am. Dec. 219, 220. This rule has since been repeatedly sanctioned in that state. Sims v. Humphrey, 4 Denio, 185; Benjamin v. Benjamin, 5 N. Y. 383; People ex rel. Mitchell v. Simpson, 28 N. Y. 55. Another section of our statutes has extended the remedy against a mortgagor, or any person claiming under him, holding over after foreclosure of the mortgage and sale and deed thereon; and also against one working lands on shares, and holding over contrary to the agreement. Sec. 3359, R. S. With these exceptions, the rule thus stated by Savage, C. JV, prevails here. This view is strengthened by the fact that, even where the entry is forcible or unlawful, yet, if the person making such entry “continues in possession three years,quietly and peaceably, by disseisin,” he cannot be proceeded against under the statute. Sec. 3361, R. S.

It is very obvious that the summary remedy given by sec. 3358 of the statutes was never intended as a substitute for ejectment. Jarvis v. Hamilton, 16 Wis. 580. A justice of the peace has no jurisdiction to try the title to land. But the facts upon which the right of removal is based may be *417put in issue by the answer, and the issues so raised may be tried and determined in a justice’s court. Newton v. Leary, 64 Wis. 190; Dawson v. Dawson, 17 Neb. 671. Even where the facts show that the defendant has an interest in the premises which can only be fully protected in a court of equity, yet, if they are such as to disprove the conventional relation of landlord and tenant, they will be sufficient to defeat such action of unlawful detainer. Dawson v. Dawson, supra. Thus in Nightingale v. Barens, 47 Wis. 389, the main body of the instrument under which the defendant resisted such summary proceedings was in the form of a lease of the premises, in which the lessee had the privilege to purchase and was to pay taxes, etc. But it was held that as the relation between the parties, in respect to the use and possession, of the premises, “ was not merely of landlord and tenant,” the action could not be maintained. Such ruling was expressly approved in Steele v. Bond, 28 Minn. 267; Grohousky v. Long, 20 Neb. 362. If, instead of this proceeding, the plaintiff had brought an action of ejectment, there would seem to be no good reason why the defendant might not have availed himself of the facts disclosed, as an equitable counterclaim. Certainly the defendant is not to be deprived of whatever rights he has in the premises merely because the plaintiff proceeded in a summary way to eject him. Especially is this so when, as appears in the record, the plaintiff admits facts showing that he has never been in possession, and that the conventional relation of landlord and tenant never existed between him and the defendant.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.