Hussman v. Wilke

By the Court, Wallace, C. J.: This is an action of ejectment. The plaintiff was non-suited at the trial, and the appeal is taken from the judgment and an order subsequently entered denying the plaintiff a new trial.

1. The action was brought in 1869, and Hayes, the landlord of the defendant Wilke, was joined with the latter as a defendant in the action. Hayes, among other defenses, pleaded the general issue, and there being no proof that at the time of the commencement of the action he was in pos- . session of any part of the premises sued for, the nonsuit was proper as to him.

2. As to the defendant Wilke, the material facts are, that in 1861, one Rix, being at the time in charge of the premises for the benefit of the plaintiff, agreed with the defendant Wilke to let the latter into possession, to hold for the protection of the plaintiff, and that in pursuance of this agreement, and for the purpose of carrying it into effect, he, Rix, subsequently delivered to the defendant Wilke a lease, in which lease, however, Rix purported to be the lessor and Wilke the lessee, and that upon the delivery of the lease, the latter took possession of the premises, and has ever since remained in their possession. In this condition [253]of tilings, and in 1863, the defendant Wilke released to Bix his interest in the premises by quitclaim deed, without any consideration in fact, and subsequently, in the same year, Bix, at the request of the defendant Wilke, conveyed the premises to the defendant Hayes, without consideration.

The record does not disclose the particular grounds upon which the plaintiff was nonsuited, but they are supposed to be the same which were adverted to by the learned judge below in denying the motion for a new trial: “That the plaintiff had not shown a title in fee in the land described in the complaint, or any possession or right of possession of said land, in him, or his predecessors or grantor.”

If Wilke entered into the possession of the premises by permission of the plaintiff, he is, upon familiar principles, estopped, while remaining in possession, to deny the title of the plaintiff. Bix was agent of the plaintiff, and at the time in charge of the premises for the plaintiff’s benefit. The defendant Wilke was admitted into possession by Bix, as he states, upon his express agreement to hold the premises for the protection of the plaintiff. Under such circumstances, it is not for him to question the plaintiff’s title.