Gray v. Tyler

40 Wis. 579 | Wis. | 1876

Lyon, J.

If the plaintiff has an adequate remedy at law, he must necessarily fail in this equitable action. This rule is too well settled to be disturbed or questioned. ¥e think he has such a remedy. The circuit judge failed to find who is in possession of the lot in controversy, but an examination of the testimony in the bill of exceptions has satisfied us that a store upon the lot (and whether it covers the whole lot the record does not inform us) is in the actual possession of one Thompson, who holds the same under a lease from Robert Gray (the common source of title), and that Thompson has never attorned to either party, but holds the possession of the store against both of them. Thompson testifies that he paid rent to the plaintiff, but did so by direction of Robert Gray; that he made but one agreement for the premises, and that was with Robert G-ray; that he has been in possession thereof ever since July 24, 1871; that the plaintiff never specially informed him that he was the owner of the lot; that he never agreed to hold the premises as the tenant of the plaintiff, or for him; and that on one occasion, after the death of Bobert Gray, and after this action was commenced, the plaintiff wanted some corn of the witness on account of rent, but the latter refused to let him have it on such account, but did let him have it under an agreement that the plaintiff should pay cash for it if this suit should be declared against him. Ve see no reason to doubt the truth of this testimony. Of course, it fails entirely to prove an attornment by Thompson to the plaintiff, but it proves the opposite.

Clearly the plaintiff, if he owns the lot, can maintain ejectment against Thompson to recover it; and, should the latter at-torn to the defendant, the plaintiff may, under the statute, make the defendant a party to such action, and compel her to litigate therein her claim of title or abandon it. E. S., ch. 141, sec. 3; Laws of 1871, ch. 52, sec. 1; Tay. Stats., 1666, §4; Pier v. Fond du Lac, 38 Wis., 470, and cases cited. It cannot alter the case, that the tenant in severalty of a certain office in the store building has attorned to the plaintiff. That fact does not destroy the. plaintiff’s right to maintain ejectment against Thompson and the defendant.

¥e affirm the judgment of the circuit court on the sole ground that the plaintiff has an adequate remedy at law. We express no opinion on the merits. The findings of the court adversely to plaintiff’s claim of title are not Tes adjudicates on that question, and will not prevent a recovery of the lot by him in an action at law.

This is a controversy between a brother and sister for property which their aged father, now deceased, attempted in his lifetime to give to each of them. It is doubtful which of them is legally entitled to it. The value of the property is not large, and there ought not to be any further litigation over it. If the parties cannot agree on. terms of compromise, they should eall upon discreet friends to do so for them, and thus close the controvei'sy.

By the Oowt. — Judgment affirmed.