Nightingale v. Barnes
| Decision Date | 14 October 1879 |
| Citation | 2 N.W. 767,47 Wis. 389 |
| Parties | NIGHTINGALE v. BARENS |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Jefferson County.
This was a proceeding commenced in justice's court, under the statute, as for an unlawful detainer, to remove the defendant from certain premises, which he was alleged to hold as plaintiff's lessee, on the ground that he had made default in the payment of rent. Defendant having obtained a verdict and judgment in the justice's court, plaintiff appealed to the circuit court. The case made on the trial there will sufficiently appear from the opinion.
Defendant appealed from a judgment of the circuit court in favor of the plaintiff.
Judgment reversed and cause remanded.
For the appellant, there was a brief by Priest & Carter, and oral argument by Mr. Priest and Wm. F. Vilas.
A. M Blair, for the respondent.
This is a proceeding under the statute of forcible entry and unlawful detainer, before a justice of the peace, to obtain restitution of the possession of certain lands held under a pretended lease, on account of the nonpayment of rent.
The facts in evidence, stated most favorably to the respondent are substantially as follows:
The respondent obtained a judgment in foreclosure of a mortgage upon the lands in question, against the appellant, in March 1875, for about the sum of $ 4,400, principal and interest, and an appeal therefrom had been taken to and was pending in this court, and, no stay of proceedings having been obtained, the respondent proceeded to the sale of the mortgaged premises, and became the purchaser for the amount of the judgment, and was partially placed in possession by a writ of assistance. The parties then entered into an arrangement by which the amount of the judgment and interest at ten per cent. thereon, and of two other judgments and interest thereon amounting to about $ 1,000, was computed, and the total sum of $ 6,600 found due, and $ 1,000 was paid thereon by the appellant, and his appeal in this court was dismissed by stipulation, and he was let back into the possession of the premises under the instrument in writing claimed to be a lease, upon which this proceeding was brought and predicated.
The main body of this instrument is drawn in the form of a lease, from the respondent to the appellant, of the premises, for three years from the first day of April, 1876, at the yearly rent of $ 565 (five dollars being for insurance), the lessee to pay all the taxes and assessments during the term; and then follows this stipulation: "And the said party of the second part, his heirs and assigns, has the privilege to purchase said premises on the first day of April, 1879, if he shall so desire, by paying for the same the sum of $ 5,600."
From this evidence and the character of this instrument the following inferences may properly be drawn: First. $ 5,600 is the balance left due after deducting the $ 1,000 payment, and the rent is ten per cent. per annum on this amount, the same as the interest on the original mortgage, with the addition of five dollars for insurance. Second. Notwithstanding the sale of the mortgaged premises to the respondent, he still recognized the existence and continuance of the mortgage debt, by receiving from the mortgagor the payment of the $ 1,000 upon a total amount which included the whole of such judgment and interest up to that time. Third. The sum of $ 5,600 named as the purchase money and consideration of the last clause of the instrument was nearly if not the exact sum then due upon the judgment of foreclosure, and this is the exact sum finally to be paid at the end of the term, and without interest, and each interest is presumably the ten per cent. reserved as annual rent in the lease. Fourth. The stipulation on the part of the appellant to pay all of the taxes and assessments during the term on such valuable property, in excess of ten per cent. rent, indicates that he was to pay such taxes and assessments, not as rent, but as one of the conditions of the purchase.
We think it is the legal effect of this instrument under the circumstances, and that it was clearly the intention of the parties, that the appellant should reenter into the possession of the premises, not as a mere lessee, but with other rights in the same (and whether as the prospective purchaser or as mortgagor, we do not decide); and that the relation between the parties in respect to the use and possession of the same was not merely of landlord and tenant; and therefore we must hold that this proceeding under the statute will not lie. In all the elements and particulars of this transaction, there could not well be a stronger case presented of a conditional sale or contract of purchase, or of the keeping alive and continuance of a mortgage, under the form of a lease or the assumed relation of landlord and tenant. It was decided in Plato v. Roe, 14 Wis. 453, that where an absolute deed and a contract of defeasance or to reconvey were executed, and the consideration was a loan of money, and the grantee also at the same time gave the grantor a lease of the premises, the transaction constituted a mortgage, and the pretended lessor could not have this statutory remedy as against a tenant holding over.
In Ott v. Rape and another, 24 Wis. 336, it was held that where a purchaser at sheriff's sale of land accepted part of the purchase money for which the land was sold, from the judgment debtor, he waived his right to enforce a forfeiture of the equity of redemption according to the terms of his certificate of sale, and thereby converted the certificate, and his interest in the land under it, into a mere lien or security for the payment of the balance of the purchase money.
In Ragan and another v. Simpson and another, 27 Wis. 355, it was held, in effect, that where, after default in the payment of a mortgage, and after the mortgagee had commenced a suit of foreclosure, he received an absolute conveyance of the mortgaged premises from the mortgagor, and at the same time gave back to the grantor a lease of the premises, in which it was stipulated that the lessor should, at the expiration of the lease, sell the premises to the lessee, in case he should tender a certain sum--which was the amount of the mortgage--and demand a deed, the transaction made the deed a mortgage, and the instrument called a lease was not such, and this remedy under the statute as against such lessee holding over could not be made available.
In Roach v. Cosine, 9 Wend. 227, it was held that where, in consideration of a payment of a certain sum of money, and also the payment of certain encumbrances upon the premises, a deed was executed with an agreement that the grantor might remain in possession of a part of the premises for two years rent free, and that if, at the expiration of that time, he should repay such advances, the grantor should reconvey, the deed was a mortgage, and this proceeding could not be entertained to dispossess the grantor as a tenant holding over.
In Davis v. Hemenway, 27 Vt. 589, where an absolute deed was taken in consideration of certain advances, and the grantee gave to a trustee of the original owner a contract in writing, by which he promised to quit-claim the premises to him in three years, if he paid the amount of such advances, and sixty dollars annually, and the rent upon certain dower estate in the premises, and the taxes during each year up to that time, it was held that the deed was a mortgage, and that the relation of lessor and lessee did not exist so as to allow the summary dispossession of the former owner by this proceeding.
In Hay v. Connelly, 8 Ky. 393, 1 A.K. Marsh. 393, it was held that a person in possession of lands under a contract of purchase is not a tenant, so as to subject him...
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