79 Wis. 484 | Wis. | 1891
The action is ejectment, and the complaint is in the usual form. The defendant answered in substance that, in 1858, the parties made an oral agreement to exchange lands,— the plaintiff to let the defendant have certain lands in Waukesha county (of which the premises in dispute is a part), and the defendant to let the plaintiff have certain lands in Rock and Jefferson counties; and that the plaintiff put the defendant in possession of the premises at that time, in part performance of the agreement, and he has been in such possession ever since, and has made improvements and paid taxes thereon, and he prays for a conveyance thereof.
On the trial the defendant, as a witness, testified to such an oral agreement, and the plaintiff, as a witness, testified that no such agreement was ever made, and that the defendant had been in possession of said premises as his tenant only. The court found that the defendant moved on the premises in 1858, and has since lived thereon, and has made some improvements, and paid a portion of the taxes thereon since that date; and further found that the defendant’s proofs are insufficient to establish the making of the verbal contract alleged; that there was no adequate consideration paid or given, or agreed to be paid or given, by the defendant, for a conveyance of the premises, described in the complaint, by the plaintiff to- him. The court further found in favor of the plaintiff, and that at the time of the commencement of the action the plaintiff was the owner of the premises, and that he was then and is now entitled to the possession thereof, and rendered judgment accordingly, and the defendant has appealed therefrom.
The learned counsel of the appellant contends (1) that a preponderance of the testimony establishes the oral agreement as testified to by the defendant. The learned counsel urges with considerable force that the following circumstances corroborate the clear and intelligent testimony of
(2) The point made by the learned counsel, that there was sufficient part performance of the oral agreement to take it out of the statute of frauds, would seem to be well taken, but it is impertinent and immaterial until the fact is established that there was such an agreement.
(3) The only other question raised by the learned counsel is whether under the pleadings it was necessary for the plaintiff to prove title to the premises in order to recover. It is conceded that the plaintiff introduced no evidence of his title, and yet the court found that he was the owner, and entitled to the possession. The rules, supported by so many authorities in the brief of the appellant, are indispu
The defendant is estopped by his answer from denying the title of the plaintiff. He alleges, in effect, that he purchased the premises of the plaintiff, and went into possession under his title, and still holds it, and prays for a conveyance from the plaintiff. Wanzer v. Howland, 10 Wis. 8; Denton v. White, 26 Wis. 679; Kaehler v. Dobberpuhl, 60 Wis. 256; Zielke v. Morgan, 50 Wis. 560. In Lawton v. Howe, 14 Wis. 241, the principle is laid down, and authorities cited to support it, “ that the purchaser who comes into possession of real estate by recognizing the title of another, will not be permitted, while so possessed, to dispute that title.” In this case the defendant not- only alleges that he purchased the premises of the plaintiff, and went into possession under such purchase, and still holds it, and prays for a conveyance, but the fact was proved by his own testimony, and that he is still in possession is conceded on both sides. By the authorities, a purchaser admits the title of the vendor, the same as the lessee admits the title of the lessor. The principle is the same. But the following case is precisely in point, and settles the question. In Miller v. Larson, 17 Wis. 624, the action was in ejectment.
By the Court.—The judgment of the superior court is affirmed.