Textor v. Estabrook

187 N.W. 998, 177 Wis. 135, 1922 Wisc. LEXIS 246

• Court: Wisconsin Supreme Court
• Decided: May 9, 1922
• Status: Published

Opinion

RoseNberry, J.

The court found that the plaintiff was the owner in fee simple of the premises in question. The admissibility of the evidence to sustain this finding is challenged by the defendant, and the defendant sought to show a superior, title in himself. The court also found, and there is abundant competent evidence to support the finding, that the defendant, during all the times in question, was the tenant of the successive owners of the premises. Being a tenant, the defendant was estopped from denying the title of his landlord. Pulford v. Whicher, 76 Wis. 555, 45 N. W. 418; Emerick v. Tavener, 9 Gratt. 220, 58 Am. Dec. 217. See, also, Ill. Steel Co. v. Budzisz, 139 Wis. 281, at p. 295, 119 N. W. 935, 121 N. W. 362.

The rule is applicable in ejectment as well as in equitable and unlawful detainer actions. Jones v. Reilly, 174 N. Y. , 66 N. E. 649; Card v. Deans, 84 Neb. 4, 120 N. W. 440; City Council of Charleston v. Terry F. Co. 113 S. C. 247, 102 S. E. 13.

It being found upon sufficient evidence that the relation of landlord and tenant existed between the plaintiff and the defendant, we dismiss from further consideration assignments of error relating to the evidence offered and received to establish the plaintiff’s title.

The defendant claims title under two tax deeds referred to in the statement of facts. The defendant derived title to the tax certificates upon which these deeds were based by virtue of an assignment of the tax certificates by Annie R. Estabrook, administratrix of the estate of D. J. Estabrook. The assignment was made by the administratrix indorsing upon the back of each certificate the following: “Annie R. Estabrook, Administratrix of the Estate of D. J. Estabrook, deceased.” There was no other attempted assignment of these certificates. We think this assignment was ineffectual to pass the title to these certificates under the rule laid' down in Eaton v. Manitowoc Co. 44 Wis. 489, and Madler v. Kersten, 170 Wis. 424, 175 N. W. 779. We are urged to overrule these decisions, but, as stated, in Madler v. Ker-sten, they havejsecome a rule of property, and the reasons urged here for overruling them were urged in the case of Madler v. Kersten.

The defendant therefore had no title to the certificates and took no title to the premises by virtue of the tax deeds issued to him. His claim to a superior title by virtue'of the tax deeds therefore fails.

The conclusion we have reached renders unnecessary a discussion of the other questions raised.

By the Court. — Judgment affirmed.