Hopkins v. Gilman
| Citation | 3 N.W. 382,47 Wis. 581 |
| Parties | HOPKINS, Administratrix, v. GILMAN, imp |
| Decision Date | 28 November 1879 |
| Court | United States State Supreme Court of Wisconsin |
APPEAL from the Circuit Court for Milwaukee County.
A statement of the contract upon which this action was based will be found in the report of a former appeal herein (22 Wis., 476). The foregoing head notes, and the opinion, infra state the facts sufficiently for the purposes of this appeal.
The circuit court found as a fact, that the value of the improvements put by the original plaintiff upon the lot in question was, in 1868, after the return of this case from the supreme court, $ 5,700. It thereupon held that plaintiff was entitled to a judgment against the defendant Gilman for $ 5,700, with interest thereon at seven per cent. from one year after the date of filing the remittitur from the supreme court in the office of the clerk of said circuit court; and that plaintiff was entitled to retain the possession of the property until the judgment should be paid, without prejudice to Gilman's right to sue for rent, or for use and occupation; and that the action should be dismissed as to the defendants Bedford B. and Edward C. Hopkins.
From a judgment in accordance with these determinations, the defendant Gilman appealed.
The original plaintiff, Otis B. Hopkins, having died before the judgment was entered, his administratrix was substituted as plaintiff.
Judgment reversed and cause remanded.
Joshua Stark, for the appellant, after arguing at length as to the amount to be allowed for the improvements, contended, among other things, 1. That plaintiff, having continued in possession, was not entitled to interest on the value of the improvements, never liquidated before the findings filed and judgment entered on the last trial of the case. Marsh v Fraser, 37 Wis., 149; Davis v. Louk, 30 id., 308, 316; Holliday v. Marshall, 7 Johns., 211; Case of Second St., 66 Pa. St., 132. 2. That full relief against all the parties should have been granted in this action, in accordance with the supplemental pleadings and the proofs, and the appellant should not have been turned over to other courts and actions for relief. 1 Story's Eq. Jur., §§ 74 b, 64 k, 455-7; Prescott v. Everts, 4 Wis., 319; Kelley v. Sheldon, 8 id., 258; Peck v. School District, 21 id., 516; McIndoe v. Morman, 26 id., 588; Akerly v. Vilas, 15 id., 401; Morgan v. Hammett, 34 id., 512, 520; Turner v. Pierce, id., 658; Winslow v. Crowell, 32 id., 662; Blodgett v. Hitt, 29 id., 169. 3. That, in granting such relief, the court should have charged plaintiff with the rent of the lot from the time (May 1, 1865) when he ceased payment of rent. Between the expiration of the lease under which he entered, and the former decision of this court, he was clearly a mere tenant from year to year upon the conditions of the lease (Gilman v. Milwaukee, 31 Wis., 563); and this relation of landlord and tenant has never ceased. The former decision herein did not destroy that relation and make him a mere licensee of the court, but affirmed his equitable right, under the provisions of the lease, to retain his possession until paid for his improvements. See Van Rensselaer v. Penniman, 6 Wend., 569; Holsman v. Abrams, 2 Duer, 435; 17 N. J. Eq., 51; Davis v. Louk, 30 Wis., 308. Until the tenant yields possession to the landlord, he remains liable for rent. Noel v. McCrary, 7 Coldw., 623; Taylor's L. & T., sec. 372. This accords with the rule in other and analogous cases. Thus, where the mortgagee of land, after a breach of the mortgage, has obtained peaceable possession, notwithstanding the legal right of the mortgagor to the possession, under our statute, until foreclosure and sale, equity protects the mortgagee in that possession until he is paid in full (Gillett v. Eaton, 6 Wis., 30; Tallman v. Ely, id., 244; Stark v. Brown, 12 id., 572; Hennesy v. Farrell, 20 id., 42); but it holds him to account to the mortgagor for the rents and profits, and apply them to the mortgage debt. Lupton v. Almy, 4 Wis., 242; Green v. Wescott, 13 id., 606; Ackerman v. Lyman, 20 id., 454. The same principles have been applied under the "Improvement Act" in this state. Pacquette v. Pickness, 19 Wis., 219; Blodgett v. Hitt and Davis v. Louk, supra. See also McIndoe v. Morman, supra. To the point that plaintiff should be charged for the use of the premises "the rent and taxes stipulated for in the original lease," counsel cited Taft v. Kessel, 16 Wis., 273; Livingston v. Livingston, 4 Johns. Ch., 291; Hinsdale v. White, 6 Hill, 507; Holsman v. Abrams, 2 Duer, 435; 13 Johns., 240; 25 N. J. Law, 293. 4. That the court should have rendered judgment in appellant's favor against his codefendants, annulling their tax deeds, and requiring them to execute deeds of release.
D. G. Hooker, for the plaintiff, contended, inter alia, 1. That the allowance of interest from April 15, 1869, was no error. The agreement was to pay for the improvements at the end of the term, May 1, 1863. As the tenant held over with the consent of the landlord till May 1, 1865, Gilman's liability was to pay the value of the improvements as of that date, and he has been Hopkins' debtor for the amount ever since, and should, in strict right, have been required to pay interest from that time. Atkinson v. Richardson, 15 Wis., 594. True, during this time plaintiff has had possession of the improvements, which belonged to Gilman; but Gilman, during the same time, has had possession of the money which belonged to plaintiff. Plaintiff did not retain possession of the property as owner, but held it merely as security for the payment of the debt, as any creditor holds collateral security. His occupation of the premises should not prevent his recovery of interest, because the possession could not be retained except by occupation; and it does not appear that the improvements have deteriorated in consequence of the occupation, nor that such occupation has in fact been a benefit to the plaintiff. 2. That the matters set up in the supplemental answer were properly disposed of by the judgment. (1) A cause of action, to be set up by way of counterclaim, must have existed at the commencement of the action (R. S., sec. 2656, subds. 1, 2; Richard v. Kohl, 22 Wis., 506; Scheunert v. Kaehler, 23 id., 523; Orton v. Noonan, 30 id., 611); and a cause of action accruing in favor of defendant after suit brought, cannot be made available by supplemental answer. Orton v. Noonan, 29 Wis., 541. (2) Facts cannot be set up by supplemental answer, which are not consistent with and in aid of the original defense. Noonan v. Orton, 21 Wis., 283. (3) The plaintiff is under no liability upon the lease for the payment of the rent or taxes in question, because the lease had terminated before such rent and taxes accrued. Tenant holding over thereby renews his tenancy only when he holds over with consent of the landlord; and Gilman, having refused his consent, cannot now claim that plaintiff is in as his tenant. Birch v. Wright, 1 D. & E., 378; Featherstonhaugh ads. Bradshaw, 1 Wend., 134; Lloyd v. Hough, 1 How., U.S., 153, 159. 3. That the supplemental answer contained no averment of insolvency of the plaintiff, nor of any other special matter which could justify the entangling of this suit with the litigation between Gilman and the other defendants. Hiner v. Newton, 30 Wis., 640; Noonan v. Orton, 21 id., 283. 4. That the only question not adjudicated by the former appeal was the value of the improvements. Reed v. Jones, 15 Wis., 40.
J. J. Orton, for the defendant B. B. Hopkins, argued, 1. That this court, on the former appeal, sent the cause back simply for a determination of the amount due plaintiff for his improvements, and with a direction to the court below that he be permitted to retain possession until that amount was paid; and that the circuit court properly followed this direction. 2. That Gilman, not consenting to plaintiff's holding over, could not, by his laches in respect to the payment of the amount due plaintiff, create any new contract relation between himself and plaintiff, while the latter retained possession of the premises, in accordance with the judgment of this court, as security for that amount. Van Rensselaer v. Penniman, 6 Wend., 569; Holsman v. Abrams, 2 Duer, 435; 2 B. & C., 147, note; R. S., sec. 2187. 3. That as plaintiff was not liable for rents or taxes, there was no ground upon which B. B. and E. C. Hopkins could properly be made parties to this action; that their rights as against Gilman were entirely independent of plaintiff's right to recover the value of his improvements, and the former question ought not to be litigated at plaintiff's expense; and that new defendants can be brought in by order of the court, on the first defendant's petition, only when their presence is necessary to a complete determination of the controversy, or when they have some interest to be protected therein. 1 Van Santv. Pl., 123, 132, 150, 151, 155, 672; R. S., secs. 2610-11, 2834. 4. That the respective rights of the several defendants as affected by the tax deed to B. B. Hopkins had been determined in an action by B. B. against Otis B. Hopkins; and that Gilman was bound by the judgment in that action. [1]
It could hardly have been anticipated, when this case was here on a former appeal (22 Wis. 476), that a decade would elapse before the cause would be brought to a hearing on the issues sent down from this court for trial; and, as both parties are more or less responsible for this delay, their obligations and duties in the mean time cannot be ignored in the final decision of the cause. The only relief which this court thought could be consistently granted on the former appeal was to send the...
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