Gunsolus v. Lormer

• Decision Date: 05 April 1882
• Parties: GUNSOLUS AND OTHERS v. LORMER AND OTHERS.
• Court: Wisconsin Supreme Court

54 Wis. 630

12 N.W. 62

GUNSOLUS AND OTHERS

v.LORMER AND OTHERS.

Supreme Court of Wisconsin.

Filed April 5, 1882.

Appeal from circuit court, Dane county.

Lamb & Jones, for respondents.

R. M. Bashford and L. K. Luse, for appellants.

ORTON, J.

The plaintiffs complain that they were entitled to the possession, and lawfully possessed, of a certain lot in the village of Stoughton, on which was situated a small building and a platform, owned by the Northwestern Mutual Life Insurance Company, and that the defendants unlawfully broke and entered said premises, and unlawfully hold possession thereof. The defendants answered by a general denial, and giving notice that they would prove on the trial that they entered and held possession of said premises by virtue of a lease from said insurance company. The plaintiffs, on the trial, proved their lease by correspondence with J. J. R. Pease, of Janesville, the pretended agent of the insurance company, and particularly by a letter of theirs dated February 3, 1881, making a proposition to rent the premises, and a letter from said Pease to them, dated February 4, 1881, accepting said proposition. There was evidence tending to prove that at that time one John Daws was in possession of said premises, under a lease, and paying rent, and had been for some time; and that soon after the fifth day of February the plaintiffs called upon said Daws, and said Daws testified in relation to that interview as follows:

“I occupied the building in question; used it for storing stoves. Gunsolus saw me early in February about the building; said he had rented it. I told him I could get out any day. He told me that he would let me know when to vacate, and that he would charge me no rent while I remained. I paid rent up to February 5th.” M. V. Gunsolus, one of the plaintiffs, testified, in relation to that interview, as follows: “On receiving the letters I went to Mr. Daws and showed him Mr. Pease's postal, and he said he would give me possession at once; that he would move out the next day. I told him he need not hurry. Daws was to stay there until we told him to go. Mr. Daws had told me there was no key, but said he would deliver me possession then and there, as he had a postal from Mr. Pease ordering him to do so. I told Daws that I would pay rent from that time.”

It appears, also, that Daws continued and was in the actual occupancy of the premises until and when the defendant entered, as complained of.

It is very clear from this evidence that Daws was the tenant at will of the plaintiffs, and in the actual possession of the premises, and that the plaintiffs were not when the trespass was committed.

Under such circumstances can the plaintiffs maintain against the defendants this action of quare clausum? The learned counsel of the respondents refer us to the statute, (section 4216, Rev. St.,) which provides that the possession of the tenant shall be the possession of the landlord until the expiration of 10 years from the termination of the tenancy, or from the time of the last payment of rent, notwithstanding such tenant may have acquired another title. This statute was not made to establish a general rule of law, but the rule merely in respect to adverse possession. This statute would prevent Daws from setting up adverse possession of these premises against the plaintiffs, and that is as far as it has application to these parties.

It is objected that Daws is in no sense a tenant at will of the premises, but a mere servant or agent to keep and hold the same for the plaintiffs, and that he had surrendered up the possession to them. But Daws had been a tenant under a lease, paying rent, and enjoying and using the premises for certain purposes. He was allowed by the plaintiffs to continue in the possession and actual occupancy of the premises for the same purpose, until he should receive notice to vacate them or surrender them to the plaintiffs.

The case of Stoltz v. Kretschmar, 24 Wis. 283, is very much in point. There the plaintiff was the lessee, and he put another in the possession who had the use of the premises for an indefinite time. The present chief justice said, in the opinion: “This is an action of trespass quare clausum. Of course, the gist of the action is an injury done to the possession. Unless a person is in possession of real estate, active or constructive, he cannot maintain the action. This principle is elementary.” And, again: “Precisely what Klein's estate was under the agreement--whether he was a tenant at will or for years--we need not determine.” “So, as the plaintiff had not the actual possession of the premises when the injury was committed, he cannot maintain this action. There is no doubt that he could maintain an action on the case for an injury to his reversion as lessee.” The case of Clark v. Smith, 25 Pa. St. 137, is cited in the opinion, and the following language of Chancellor Kent, (4 Kent, 114:) “If the tenant be placed upon the land without any terms prescribed, or rent reserved, and as a mere occupier, he is strictly a tenant at will.”

Daws, as a tenant at will, could have brought this action. 1 Chit. Pl. 197; Wood. L. & T. 30; Cross v. Upson, 17 Wis. 623;Bartlett v. Perkins, 13 Me. 87; Homer v. Seely, 19 Wend. 507;Herrell v. Sizeland, 81 Ill. 457.

No one can bring this action except the person in actual possession, if there is any one in possession. Bracken v. Preston, 1 Pin. 597;Hungerford v. Redford, 29 Wis. 345;Oatman v. Towler, 43 Vt. 462;Addleman v. Way, 4 Yeates, 211; 1 Add. Torts, §§ 442, 426. That constructive possession which, in the absence of any actual possession, will warrant the bringing of this action, is that of the owner of the premises alone. Edwards v. Noyes, 65 N. Y. 125;Wickham v. Freeman, 12 Johns. 183; 6 Waite, Actions & Def. 76-77; Stean v. Anderson, 4 Harr. (Del.) 209. See, also, Revett v. Brown, 5 Bing. 7; Reeder v. Purdy, 41 Ill. 289. These questions are really elementary, and have been long settled beyond dispute by the courts. It has been unnecessary to cite scarcely any authorities outside of the brief of the learned counsel of the...