Cassoday, -7.
It appears to be undisputed that in 1865-the Milwaukee & Chicago Railroad Company was in possession of the premises in question; that Prank Mangan, then in the employ of that company, asked the road master of that company to give him permission to build a house and make a garden thereon; that such permission was thereupon granted to Mangan; that Mangan thereupon constructed a-house thereon, and moved into it with his' family, and cultivated a garden; that after continuing to occupy the house for about three year's he sold the house to the defendant that he then moved out and took- a part of the fence away. In his deposition taken under sec. 4096, R. S., the defendant, concedes that he only bought the house from Mangan; that. *399lie got a paper from Mangan,— merely a conveyance of the-liouse; that be got Mangan’s title, — bis permit to build tbe bouse. Tbis evidence indicates pretty clearly that tbe defendant’s entry was under Mangan, and tbe same as bis bad been; that is to say, under and in subordination to tbe Milwaukee & Cbicago Eailroad Company.
Where a person enters upon tbe lands of another' under an agreement with him, , tbe nature of tbe agreement necessarily determines tbe character of tbe entry. But where be-enters without any such agreement, tbe question whether1 such entry is an ouster of tbe legal possession arising from tbe title depends upon tbe intention with which such entry is made. “ If made under claim and color of right it is an ouster; otherwise it is a mere trespass. In legal language, tbe intention guides tbe entry %nd fixes its character.” Probst v. Trustees, 129 U. S. 191; Hacker v. Horlemus, 74 Wis. 25. Whether such entry is an ouster, or merely in subordination to tbe plaintiff’s title, is therefore usually a question of fact for tbe jury. Ibid.
It seems to be conceded that tbe evidence is sufficient to-sustain a verdict to tbe effect that tbe North Chicago Boll-ing Mill Company became tbe owner of thé whole or at least a fractional part of tbe premises in question in 1885; but it is contended that tbe subsequent conveyance from that company to tbe Illinois Steel Company must be regarded as a nullity, for tbe reason that tbe evidence fails to show that tbe last-named company was ever in fact duly incorporated. However that may be, tbe evidence seems to be sufficient to support tbe contention that tbe Illinois Steel Company, upon receiving such conveyance, took possession of tbe property therein described, and claimed tbe premises in question. Tbis court has held that “ one who executes a deed to a body claiming to be a corporation is estopped from denying its corporate character to defeat tbe instrument.” Whitney v. Robinson, 53 Wis. 309" court="Wis." date_filed="1881-11-03" href="https://app.midpage.ai/document/whitney-v-robinson-6603611?utm_source=webapp" opinion_id="6603611">53 Wis. 309. Tbis principle would *400seem to estop the North. Chicago Rolling Mill Company from asserting title. “ Where there has been a body corporate defacto for a considerable period of time, claiming at least to be such, and holding and enjoying property as a corporation, it will be presumed that every mere formal requisite to the due creation of the corporation has been complied with.” Whitney v. Robinson, 53 Wis. 316, and cases there cited. Assuming that.the Illinois Steel Company was a mere de faeto corporation, yet, under the evidence in this case, we think it may be regarded as having acquired through the foreclosure mentioned, and the conveyance from the North Chicago Rolling Mill Company, the same contractual right to the premises in question that the Milwaukee & Chicago Railroad Company had at the time it gave Mangan the privilege of building the house thereon which he sold to the defendant, and as having transferred such right to the plaintiff by the deed of August 1, 1890. Especially is this so, in view of the agreement entered into between the plaintiff and the defendant, November 20,1890, set forth in the foregoing statement, wherein the defendant expressly agreed, in effect, to hold the said house and premises then occupied by him under the plaintiff as “ the owner thereof,” and “ as his tenant,” and to vacate the same at any time on six months’ notice, and upon such notice being given to ha/oe the right to remove said building within six months. That agreement secured mutual benefits, and was signed by the plaintiff as well as the defendant; hence was mutually binding upon both parties. It certainly estopped the defendant from claiming that the plaintiff had no authority to make such contract or was not the owner of the land. Skinner v. Richardson, Boynton & Co. 76 Wis. 464" court="Wis." date_filed="1890-04-08" href="https://app.midpage.ai/document/skinner-v-richardson-boynton--co-8183356?utm_source=webapp" opinion_id="8183356">76 Wis. 464; Tondro v. Cushman, 5 Wis. 279" court="Wis." date_filed="1856-07-01" href="https://app.midpage.ai/document/tondro-v-cushman-6597470?utm_source=webapp" opinion_id="6597470">5 Wis. 279. In fact the case of Jackson v. Bryan, 1 Johns. 322" court="N.Y. Sup. Ct." date_filed="1806-05-15" href="https://app.midpage.ai/document/jackson-ex-dem-livingston-v-bryan-5471939?utm_source=webapp" opinion_id="5471939">1 Johns. 322, goes to the extent of holding, in effect, that the defendant would have been estopped even had the agreement of November 20, 1890, not been made. Under *401.any view, we think thé evidence was sufficient to take the <case to the jury.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.