14 Wis. 458 | Wis. | 1861
By the Court,
We think the complaint in this case was substantially defective in not averring that the defendant took possession of and occupied the premises by virtue of the assignment. The plaintiff’s counsel conceded that the right of action must be based upon the occupation of the premises under the instrument assigned. There certainly can be no doubt of that, inasmuch as this action is against the assignee, and the instrument itself was but a deed poll, without any covenants by the lessee. The complaint avers the assignment to the defendant and that he af-terwards entered and occupied the premises. But it does not say that he entered under or by virtue of the assignment or of the deed poll. For aught that appears in the complaint he may have abandoned this instrument altogether, and have entered under a claim of title derived from some other source. If such was the case he would not be liable to the plaintiff for rent. Everything alleged in the complaint therefore being taken as literally true, it does not necessarily follow that the plaintiff has any cause of action against the defendant. And we suppose that wherever a complaint is sufficient, that must necessarily appear. It may be said that when an assignment is alleged, and it is then averred that the assignee afterwards entered into possession, it may be inferred that he entered by virtue of the assignment. But such an inference is not necessary; and if a material allegation can ever be sufficiently made by in
It is usual in such cases to aver that the assignee entered by virtue of the lease. Turner vs. Richardson, 7 East, 159. Such an averment would undoubtedly have been necessary under the old system of pleading, and we do not think the Code intended to dispense with the necessity of averring every fact essential to a complete cause of action.
The judgment is affirmed, with costs.
