Mariner v. Crocker

18 Wis. 251 | Wis. | 1864

By the Court,

Cole, J.

It is impossible to distinguish this case in principle from that of Cross v. Upson, 17 Wis., 618. It was there held, in effect, that the presumption that a party found in possession of demised premises was there as assignee of the lessee, was but a presumption liable to be rebutted or disproved by sufficient evidence that such person never in fact had an assignment of the lease. The action is for rent on the covenants of the lease, and it is sought to charge the appellant as assignee. The assignment is denied, and no actual assignment is attempted to be shown. But from the fact that the appellant is in possession, the law, it is said, implies an assignment, and this implication or presumption cannot be done away with except by disclosing the true state of the title. The fact of an assignment was most effectually disproved in this case. The appellant swears that he took possession of the premises as receiver of the La Crosse & Milwaukee Eailroad, under two appointments from the United States district court for this state in two certain actions pending in that court against that corporation. He says that at the time of his appointment Dow was in possession of the road and its appurtenances, including the premises in question, claiming such possession in behalf of the trustees of the second mortgage of the east division of the road. On presenting his orders of appointment to Dow, the latter surrendered to him the possession of the premises and all other property connected with the road. He further states that he did not know that the plaintiff claimed rent until April, 1861, when the plaintiff called upon him and informed him of the lease, and demanded the rent which was then due by its terms, wbicb appellant declined to pay. This testimony shows clearly and conclusively that the appellant was not in possession of the premises as assignee of the lease, bnt had gone into possession solely by virtue of his appointment as receiver of the road. It effectually disproves the fact of assignment, and overcomes the presumption arising from possession, which was relied on to render the appellant liable as assignee. Whether the appellant could be held liable for the rent under some other form of action, we shall not attempt to decide. It is sought now to hold him liable as as-signee, and in order to do this the fact of assignment becomes material and important.

The judgment of the circuit court is reversed, and a new trial ordered.