221 Wis. 152 | Wis. | 1936
Loomis contends that the court erred in a number of respects, but upon reviewing the record we find that the order appealed from must be affirmed for the following reasons: His contention that the court erred in ordering the appointment of the receiver on July 25, 1935, cannot be sustained because his appeal is limited to' a review of the order of August 17, 1935, which required him to' vacate the premises ; and because on the hearing at which the order appointing the receiver was made, he voluntarily appeared generally. Likewise, his contention challenging the court’s jurisdiction to make the order of August 17, 1935, requiring him to vacate cannot be sustained, because that order was not made until after he had again entered a general appearance, pursuant to the order to show cause why he should not be required to vacate, and had moved for an adjournment and leave to produce testimony to enable the court to “adjudge both the legal and equitable rights of the parties herein.” Even if he was theretofore a stranger to the action, because he had not been expressly joined as a piarty, by thus submitting his
It is true, as Loomis also contends, that if he entered into possession on July 5, 1935, under a bona fide and valid lease
“. . . mortgagor’s right to the possession of the mortgaged premises continues in him and his lessee until terminated by the sale on foreclosure, subject only to the appointment of a receiver in the foreclosure action for the purpose of preventing waste;” and that—
“notwithstanding ... an appointment of a receiver to function as the landlord in lieu of the mortgagor-lessor, the lessee is entitled to continue in possession until the landlord’s right of possession, which he acquired by virtue of his lease, is terminated by the sale on foreclosure. . . . ”
Zimmermann v. Walgreen Co. 215 Wis. 491, 501, 255 N. W. 534; Ottman v. Tilbury, 204 Wis. 56, 234 N. W. 325; Grether v. Nick, 193 Wis. 503, 213 N. W. 304, 215 N. W. 571. However, a lessee under a mortgagor is not entitled to continue in such possession upon the commission of waste by either him or his lessor while in possession, or upon the lessee’s breach of a covenant in his lease by reason whereof the lessor thereunder, and a representative or receiver standing in his place, became entitled to repossess the premises. In the case at bar, the evidence amply supports the court’s determination that Loomis had sold intoxicating liquor upon the premises in violation of law. His use of the premises in that manner was in violation of the covenant in his lease that “neither he nor his legal representatives will use said prem-
By the Court. — Order affirmed: