Ubbink v. Herbert A. Nieman & Co.

• Decision Date: 30 December 1953
• Citation: 265 Wis. 442,62 N.W.2d 8
• Court: Wisconsin Supreme Court
• Parties: UBBINK et al. v. HERBERT A. NIEMAN & CO.

Page 8

62 N.W.2d 8

265 Wis. 442

UBBINK et al. v. HERBERT A. NIEMAN & CO.

Supreme Court of Wisconsin.

Dec. 30, 1953.

Action begun June 27, 1952, by Joseph J. Ubbink and Arnold Ubbink against Herbert A. Nieman & Co. to recover damages for the value of an office building and scales which plaintiffs as tenants had installed as trade fixtures on certain leased premises, of which premises the defendant was a former owner. Judgment was granted May 13, 1953, in favor of the plaintiffs in the sum of $974.48.

The case was tried to the court, and important points appear in the following facts:

On July 25, 1942, the defendant acquired the real estate on which the property claimed by the plaintiffs was situated, and the deed contained the following:

'Subject to lease of the grantors to Joe Ubbink and Arnold Ubbink, doing business as a co-partnership, dated February 15, 1941, and expiring, by amendment, September 30, 1942, on a part of the above described premises.'

The lease itself was never recorded, but plaintiffs continued to occupy the premises under an oral agreement with the defendant.

The plaintiffs carried insurance upon the scales and office building and paid the taxes thereon to the city of Cedarburg continuously until the time the real estate was sold by the defendant to the Kiekhaefer Corporation on December 29, 1950, and plaintiffs were acknowledged by defendant to be owners of the scales and building.

The deed of conveyance by which the defendant conveyed the real estate to the Kiekhaefer Corporation on December 29, 1950, contained no reservations or exceptions and did not refer to the interest of the plaintiffs in the scales and building which they occupied and which were situated on the real estate.

Plaintiffs did not remove scales or building from the property, and the oral lease between them and defendant was in full force and effect on December 29, 1950, when the real estate was conveyed to the Kiekhaefer Corporation.

Although the said conveyance was made during the lease term, the Kiekhaefer Corporation refused to allow the plaintiffs to remove their said property or any of it from the premises.

The trial court concluded: 'That the sale by the defendant to the Kiekhaefer Corporation during the lease term included the plaintiffs' property consisting of the building and scales in question and their right to remove it as to the Kiekhaefer Corporation because the plaintiffs' lease was not recorded in the office of the Register of Deeds of Ozaukee County, Wisconsin.'

The conclusion just quoted contains the error which is considered in this opinion.

Schanen, Schanen & Pauly, Port Washington, for appellant.

Charles L. Larson, Port Washington, Stuart Grady, Port Washington, of counsel, for respondents.

FAIRCHILD, Justice.

By reason of the several transfers of title to the real estate, the plaintiffs came under successive landlords. However, plaintiffs' relation and responsibilities to each successive landlord was practically the same. They were the tenants of the defendant until Nieman sold out to the Kiekhaefer Corporation. They became tenants of the Kiekhaefer Corporation when that corporation purchased the premises during the lease term, on December 29, 1950, and took the real estate subject to such rights as then existed in the plaintiffs. Plaintiffs were tenants in possession. That possession was 'actual, open, notorious, and visible possession' by the plaintiffs and constituted constructive notice to the...