22 Wis. 161 | Wis. | 1867
There is a conflict of authority upon the question, whether, where one is put into possession of real estate on a contract to purchase it, which he afterwards refuses to comply with, an action for use and occupation can be maintained against him for the time during which he held possession. The cases on both sides are collected in chapter 33, 2 Hilliard on Vendors, which is devoted especially to this subject. We do not deem it necessary to determine which side has the better reason, in cases where there is nothing in the contract of purchase providing for the relation of land
The appellant’s counsel contends that this provision should be construed as having been intended only to enable the vendor to remove the purchaser in case of default, by the proceeding ordinarily used against tenants holding over. But we do not think it can be restricted to this one purpose. There are other provisions in the contract, clearly contemplating'the possible failure of the contract of purchase, and designed for the protection of the rights of the vendor in that event. Among these are the covenants by the vendee to pay the taxes, and keep the buildings, fences and improvements in good repair. These are subjects in which the vendor would have no interest, except on the failure of the vendee to comply with his contract. When therefore the vendor has taken tire precaution to guard his rights by inserting provisions of this character in the contract under which he admits the vendee to possession, there seems no reason for saying that the explicit declaration that the purchaser holds as a tenant at sufferance, will not create the relation of landlord and tenant, not only for the purpose of removal but for the purpose of sustaining any other remedy to which the existence of that relation is essential.
It is true, that in such cases, the primary object of the contract is not to lease the property, but to sell it. But as human affairs are proverbially uncertain, it is not only competent but reasonable for the parties to anticipate the possible failure of the principal object, and to provide for the relation wl^ich they shall hold to each other contingent upon that event. In this contract they have done so. And however it might have been determined in the absence of such a
This conclusion being arrived at, it follows that there was no error in admitting proof of the value of the use and occupation. That was precisely what the action was brought to recover.
Neither was there any error in permitting proof of the expense of repairing the fences damaged by defendant. He had expressly agreed to keep them in repair, and the complaint shows a violation of that agreement.
But the objection of the'defendant to the admission of any evidence under the second cause of action stated in the complaint, should have been sustained. This merely states, in addition to the facts stated in the first, that the defendant had cut large amounts of timber and wood on the premises. It would not be waste for him to cut wood for his own use, so long as the tenancy continued, nor to cut timber to repair the fences and buildings which he had agreed to keep in repair. But there is nothing in the complaint to show that the wood and timber he cut, might not have been cut for these purposes.- It is true, the proof was of timber cut and sold to a school district, and this may have been waste. But if it was, there is not enough stated in the complaint to show a cause of action for it. And as the evidence was objected to for that reason, it should have been excluded.
The only witness upon this point stated that the value of the timber cut, after deducting the expense of cutting, “ was about forty dollars.” ¥e shall be compelled therefore to reverse the judgment, unless the plaintiff remits the sum of forty dollars and pays the costs of the appeal, in which event it will be affirmed.
By the Court. — Ordered accordingly.
