Bates v. Campbell

25 Wis. 613

• Court: Wisconsin Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Paiíte, J.

It may be that the complaint fails to show a title in the plaintiff, but it does show possession and a right to the possession as against the defendant. And the authorities cited by the appellant’s counsel, and others that might be cited, show that possession is sufficient to enable a party to recover in ejectment, against a wrong-doer intruding upon su'dh possession. In the case of Hoey v. Furman, 1 Pa. St. 295, it was held that a plaintiff who was himself a wrong-doer, and had wrongfully entered upon land and disseized the rightful owner, might still recover in ejectment against a subsequent wrong-doer who entered upon his possession, although such plaintiff had not yet acquired any prescriptive right as against the real owner. The same rule prevails in respect to actions to defend the possession of personal property. The wrong-doer who, without any right, invades the peaceable possession of another, cannot defend successfully by showing that such other had not a perfect title. , The actual-, possession is sufficient evidence of title against every one who cannot show a better right.

There seems ncr reason why the same rule does not prevail in respect to real estate. It is reasonable, and tends to promote justice and preserve the peace and good order of society. For the opposite rule would encourage wrong-doers to invade the peaceable possession of others, in all cases where the title was imperfect..

The only doubt we have had upon the subject has arisen upon the language of our statute, which declares that no person can recover in an action for real estate, “unless he has, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the same or to recover the possession thereof,” and also that the complaint shall set forth that the plaintiff has an estate or interest, particularly stating the nature and extent of such estate or interest, and whether “in fee, in dower, for life, or a term of years.” R. S., chap. 141, sections 2 and 4. It might be claimed, perhaps, that the statute did not recognize any other estate or interest in land than those specifically named. But it has always been held that tare possession constitutes the first degree of title. Gfreenleaf’s Cruise on Real Property, vol. 3, p. 312. And although the statute does not specifically mention this as one of the degrees of title which may be specified in the complaint, we do not think that circumstance is sufficient to show any intention to abrogate that which had so long been the settled rule of law, that bare possession was sufficient title to sustain a possessory action against a mere wrongdoer. We think, therefore, that when a complaint shows an actual possession by the plaintiff under a claim of right, and an invasion of that possession by a wrong-doer, it does show a valid existing interest entitled to protection, under the statute, so far as such wrong-doer is concerned.

By the Court. —The order sustaining the demurrer is reversed, and the cause remanded for further proceedings.