Moore v. Smead

• Decision Date: 05 March 1895
• Citation: 89 Wis. 558,62 N.W. 426
• Parties: MOORE v. SMEAD.
• Court: Wisconsin Supreme Court

89 Wis. 558

62 N.W. 426

MOORE

v.SMEAD.

Supreme Court of Wisconsin.

March 5, 1895.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Action of ejectment by M. B. Moore against Samuel M. Smead. From a judgment for defendant, plaintiff appeals. Modified.

It appears from the record: That May 12, 1858, Robert A. Baker obtained the legal title, by deed of conveyance, duly witnessed, acknowledged, and recorded, of a part of two certain lots in the city of Fond du Lac,--less than one-quarter of an acre,--and thereupon went into the possession and occupancy of the same, with his family, and occupied the same as a homestead. That May 17, 1881, said Baker failed in business, and made a voluntary assignment for the benefit of his creditors. That in the summer of 1881 he and his family moved from said premises to Chicago, where he and his family have continued to reside ever since. That August 12, 1881, one Henry Blythe recovered a judgment against said Baker in the circuit court for Fond du Lac county, and the same was docketed in said court on that day. That September 9, 1881, Charlotte M. Clark obtained another judgment against said Baker in the circuit court for Fond du Lac county, and the same was docketed with the clerk on that day. That May 24, 1882, the city of Fond du Lac recovered a judgment against said Baker, said Moore, and four other persons, for the sum of $39,707, in the circuit court for Rock county, and the same was docketed in Fond du Lac county July 13, 1882. 58 Wis. 170, 15 N. W. 782. That February 18, 1888, the said Baker and wife conveyed said premises to the defendant in this action. That January 7, 1891, executions were issued on the said judgment in favor of said Blythe, and also on the judgment in favor of the said Clark, to the sheriff of Fond du Lac county; and he thereupon levied upon the premises described, and February 28, 1891, sold the same to Kate Pier for $1,139.54, and June 9, 1892, said sheriff executed to the said Kate Pier a sheriff's deed of said premises, on account of said sale. That under date of June 6, 1892, the said Kate Pier, by a quitclaim deed under seal, duly witnessed and acknowledged, conveyed said premises to Edward S. Bragg, who thereupon leased said premises to the defendant in this action. That May 13, 1887, the plaintiff in this action commenced a suit against said Baker and others for contribution, and to be subrogated to the rights of said city in the said judgment in favor of the city. That said suit was removed from the state court to the circuit court of the United States for the Eastern district of Wisconsin. That upon the hearing therein a decree was entered therein, February 1, 1892, against said Baker and others, for such contribution, to the amount of $5,940.35, and that the same was a lien on said homestead from May 13, 1887, and that the circuit court for Rock county was at liberty to issue execution on said judgment in favor of the city for that amount. That said decree was docketed March 3, 1892, and that such execution was issued March 16, 1892, from the circuit court of Rock county. That said premises were sold thereon to the plaintiff, Moore, May 7, 1892, for $1,400. That a sheriff's deed was issued thereon to said Moore, September 21, 1893, and the same was recorded September 22, 1893. That September 28, 1893, the said Moore commenced this action of ejectment against the defendant, the complaint being in the statutory form. That the defendant answered by way of admissions and denials, and alleged that his occupation and possession of the said premises were lawful, rightful, and peaceful, under title paramount to any and all of said plaintiff's supposed title, upon which he founded his supposed claim in this action. That a jury trial was thereupon waived, and the cause was tried by the court. That at the close of the testimony the defendant, by leave of the court, amended his answer by adding thereto a counterclaim alleging the title and right of possession in his lessor, Edward S. Bragg, of the property in question, at the time of the commencement of this action, and averred that the title interposed by the plaintiff was without force and effect, and that the record of the same in the register's office of Fond du Lac county was a cloud upon the defendant's title, and therefore prayed judgment that such title might be declared and adjudged of no force and effect, and that the record thereof be canceled. That the plaintiff thereupon, by way of reply, denied each and every allegation of said counterclaim. That at the close of the trial the court found, in addition to the facts stated, in effect, that from the time of said Baker's removal to Chicago, in the summer of 1881, and from thence to the time of the trial of this action, said Baker had, and has had, no definite intention of ever returning to occupy said premises by himself or with his family, but abandoned his residence and home thereon when he first left the same, in 1881, and has never resumed his home and residence in Wisconsin since such original abandonment, nor has he ever had any intent or purpose so to do; that the Blythe judgment and the Clark judgment mentioned, both at the respective dates of the docket thereof, became liens on the premisesin question; that the defendant in this action possesses and claims the right to occupy and enjoy the said premises as tenant under the said Bragg; that May 7, 1892, the sheriff of Fond du Lac county, upon an execution upon the said judgment so recovered by said city, sold to the plaintiff in this action all the interest, right, and title which the said Baker had in the premises described, July 13, 1882, and also all the homestead rights which Baker had therein, May 13, 1887; that said Baker had no homestead right or homestead claim in said premises, or in any part thereof, May 13, 1887, nor at any time prior thereto, and after his abandonment of the same, in the summer of 1881, as found; that the plaintiff claims title under the sheriff's deed of September 21, 1893, and has ever since claimed title and right of possession of the said premises under and by virtue thereof; that both parties claim title from said Baker, and neither claims any other or different title than such as is vested in him by conveyances respectively to each hereinbefore stated. And as conclusions of law the court found that at the time of the commencement of this action the plaintiff was not the owner in fee of the premises described, nor of any part or parcel of said premises, nor was he entitled to the possession thereof, or of any part thereof, and that the defendant is entitled to a judgment dismissing the plaintiff's complaint in this action upon the merits, with his taxable costs and disbursements; that at the time of the commencement of this action the defendant was lawfully possessed of said premises, and of every part thereof, under the title of Edward S. Bragg, his lessor, who was then, and still is, the owner in fee simple of said premises, and of every part thereof; that the sheriff's deed of September 21, 1893, vested no title in the plaintiff to the said premises, or any part thereof, the same being inferior and subordinate to the title of said Bragg, as found; that the record of said sheriff's deed of September 21, 1893, with the plaintiff's claim under it, is a cloud upon the title to said premises, and the defendant, as lessee, is entitled, in equity, to have such record expunged and canceled, for the protection of himself and the title under which he holds; that the defendant is entitled to judgment as prayed in his counterclaim. From the judgment entered thereon accordingly, the plaintiff brings this appeal.

George E. Sutherland, for appellant.

E. S. Bragg, for respondent.

CASSODAY, J. (after stating the facts).

It is contended by counsel for the appellant that the defendant must stand or fall by the deed he received from Baker, February 18, 1888, and the possession he acquired under it. In other words, the contention is that by accepting that deed he is estopped from claiming possession under one who has since acquired all the right, title, and interest in the land which his grantor possessed prior to the making of that conveyance. We are constrained to hold that such contention cannot be maintained. Even had the defendant entered into possession under a lease from Baker, instead of a deed, yet he would not have been estopped thereby from showing that his landlord's title had expired, and that he was rightfully in possession under a paramount title. England v. Slade, 4 Term R. 682; Doe v. Edwards, 5 Barn. & Adol. 1065; Doe v. Barton, 11 Adol. & E. 307; Nellis v. Lathrop, 22 Wend. 121;Lamson v. Clarkson, 113 Mass. 348; Elliott v. Smith, 23 Pa. St. 131; Smith v. Crosland, 106 Pa. St. 413. This principle and some of these authorities have been expressly sanctioned by this court. Chase v. Dearborn, 21 Wis. 61. The two cases in this court cited by counsel as holding to the contrary are clearly distinguishable. Quinn v. Quinn, 27 Wis. 168;Watts v. Owens, 62 Wis. 512, 22 N. W. 720. The reason why a tenant cannot question the title of his landlord is very obvious. There is a contractual relation between them. Whatever rights and interest the tenant has in the premises are necessarily under and by virtue of the contract. The contract is an implied acknowledgment of the landlord's title. For the tenant to deny such title is to assert that he acquired no right or interest in the premises by virtue of his lease; but this does not bar the tenant from showing that since the making of the lease the landlord has transferred the same to...