Hunter v. Maanum

Cass okay, J. Eor the purposes of tbis appeal we shall assume that the plaintiff’s exception to the portion of the charge quoted in the foregoing statement was taken in time. The verdict for the defendant resolved all disputed questions of fact in his favor and against the plaintiff. The effect of that verdict is therefore that the facts were not as contended by the plaintiff, but were as contended by the defendant. From a careful reading of the printed case, we are forced to hold that there is sufficient evidence to support the verdict. The question, therefore, recurs whether the facts so submitted to and found by the jury authorized the maintenance of this action of unlawful detainer. There is no claim that the facts bring the case within the remedy given by sec. 3359, R. S. The contention is, however, that they do bring the case within the provisions of sec. 3358, R. S. 1 This court has repeatedly held that such an action cannot be maintained under that section unless the conventional relation of landlord and tenant exists at the time between the plaintiff and the defendant. Buel v. Buel, 76 Wis. 413; Menominee R. L. Co. v. Philbrook, ante, p. 142 ; and cases cited in the opinions. Such an action is a summary remedy given by statute, but was never intended as a substitute for ejectment or a bill in equity. “ A justice of the peace has no jurisdiction to try the title to land. But the facts upon which the right of removal is based may be put in issue by the answer, and the issue so raised may be tried and determined in a justice’s court. . . . Even where the facts show that the defendant has an interest in the premises 660 which can only be fully protected in a court of equity, yet, if they are such as to disprove the conventional relation of landlord and tenant, they will be sufficient to defeat such action of unlawful detainer.” 76 Wis. 416, 417. The question to be determined, therefore, is whether the facts found by the jury in the portion of the charge quoted in the foregoing statement, were such as to create the conventional relation of landlord and tenant between the plaintiff and the defendant. Such facts were to the effect that the quitclaim deed was given to the plaintiff by the defendant and wife in pursuance of an arrangement and agreement that the defendant should retain an interest in the land with the privilege of selling the same, within the time named, for a price exceeding the amount due on the contract, and, in case of such sale, retain such excess; that, in case the plaintiff should sell during said period for an amount more than his due, then he should turn such excess over to the defendant; that if the defendant paid the amount due on the contract during said period, then the plaintiff should reconvey the land to the defendant. In accordance with numerous adjudications of this court, we must hold that the agreement thus found left in the defendant an equity of redemption in the land, and of course disproved the conventional relation of landlord and tenant. A few of these cases only are cited. Starks v. Redfield, 52 Wis. 349; Rockwell v. Humphrey, 57 Wis. 410; Schriber v. LeClair, 66 Wis. 579; and cases cited in the opinions. It is contended, in effect, that the absence from the arrangement of any express personal agreement on the part of the defendant to repay the money barred him of all equity of redemption in the premises. But that fact is not always conclusive, as shown by numerous authorities in the cases cited. Once a mortgage, always a mortgage, is the rule generally recognized in the cases. Ibid. When the facts and circumstances of the transaction are equivocal, the 661 question whether it constitutes a pledge, security, mortgage, or a conditional sale is one of intention. Ibid. .Whenever the relation of debtor and creditor is created by the transaction, or joreviously existed, and by express language or fai/r wnpUeaUon continues, and the possession is retained by the grantor, the transaction is usually held to be a pledge, security, or mortgage, especially if the value of the prop-perty conveyed is considerably in excess of the price allowed. Ibid. But the cases cited so fully discuss the questions here involved as to require nothing additional in this opinion. It is enough to say that the facts found negatived the existence of the conventional relation of landlord and tenant between the parties. Buel v. Buel, 76 Wis. 413; Menomonie R. L. Co. v. Philbrook, ante, p. 142. By the Court.— The judgment of the circuit court is affirmed.