68 Wis. 505 | Wis. | 1887
In many respects this case is similar to that of Lamson v. Moffat, 61 Wis. 153, on the authority of which, doubtless, the question of the intention of the parties in executing the instrument of April 19, 1881, was submitted to the jury. The evidence is sufficient to support the special finding that such instrument, under which the plaintiff claims title to the wheat, is what on its face it purports to be, a lease, and hence not a mere security for a debt. Being a lease, there can be no doubt, we think, that the crop of wheat growing upon the leased premises when the instrument was executed, and which matured during the term of the lease, became the property of the lessee,— the same not having been reserved by the lessor. This must necessarily result from the rules of law that the tenant is vested with all the rights incident to possession, and the use and enjoyment of all the privileges appurtenant to the leased premises, and may maintain an action against any person who
The case was tried throughout by both parties on the theory that if the instrument of April 19th was a lease, the plaintiff must recover. The plaintiff having succeeded in establishing it a lease, if that theory be adhered to the judgment should not be disturbed. Yet a point has been raised and argued in this court by counsel for defendants outside this theory, which will now be noticed.
The plaintiff, on his direct examination, testified that, as agent of his intestate in her life-time and at the time the lease was executed, he employed Pampauch to put in the crops on the leased premises. On his cross-examination he further testified that the agreement was that if Pampauch did the work faithfully he was to receive one fourth of the crops for his services. On redirect examination he stated that Pampauch was to receive one fourth the value of the crops for such services. On this testimony counsel maintains that Pampauch was tenant in common of the crop with plaintiff’s intestate, owning an undivided one fourth thereof, and hence, if the plaintiff can recover in the action, the recovery should be limited to the value of three fourths of the wheat in controversy.
It is very doubtful, to say the least, whether the wheat then growing on the farm was included in this contract, conceding it to be as stated in such cross-examination. That con
By the Court.— The judgment of the circuit court is affirmed. - ..