Neubauer v. Gabriel

Cassoday, J. It is pretty clearly established that the father, Ohislain, raised $800 by mortgaging his farm, and then, through the agency of his daughter, Mary, purchased the property in question for*himself, but with the purpose of leasing the same to his son, John, and thus starting him in the hotel business, as mentioned in the foregoing statement. Soon after the property was so purchased, the father procured an insurance thereon for his own benefit. The lease was given, as stated, and is in the ordinary form. The lease runs to the son directly, and to no one else. By its terms the son was expressly required to keep the prop- . erty leased in repair, and was expressly prohibited from underletting the same without the consent of the father; and the father was thereby expressly authorized to terminate and cancel the lease, and to take the property covered by it from the possession of the son and from the hotel, upon any failure of the son to pay the rent at the time expressed in the contract, or in case he should underlet the property so leased without the consent of his father. The father did enter and take such possession of the prop [204] erty, and thus terminated the lease, and held the same for more 'than thr'ee months prior to the commencement of this action, as mentioned in the foregoing statement. True, the son had given the chattel mortgage to the plaintiffs prior to the time his father had so taken possession; but the lease gave to the . son no power, right, or authority to sell or mortgage the property therein described, or any part of it. Assuming that such mortgage was, in legal effect, an assignment of the son’s interest in the lease, yet such assignees were compelled to take such assignment subject to all the equities between the original parties, and were bound to perform all the agreements thei’ein contained and annexed to the property so leased. Martineau v. Steele, 14 Wis. 272; Wittman v. M., L. S. & W. R. Co. 51 Wis. 91; Gordon v. George, 12 Ind. 408; McDowell v. Hendrix, 67 Ind. 518; Patten v. Deshon, 1 Gray, 325. But, if the plaintiffs be regarded as assignees of the lease, then, they were bound to know the terms and contents of the lease, and were subject thereto, and were thereby estopped from disputing the.father’s title as such lessor. Barroilhet v. Battelle, 7 Cal. 450. But the plaintiffs have not claimed the possession of the property under the lease, as assignees thereof, but as legal owners of the property, entitled to the absolute possession thereof as such owners. The cause of action alleged and sought to be maintained ignores any title to the property in the father as lessor, and predicates the right to recover on the theory that the son, by virtue of his possession, had the right to transfer to the plaintiffs the absolute and complete title to the property, discharged of any right or claim of the father thereto, as such lessor. Certainly, the son had no authority to make such transfer by virtue of such lease. Counsel for the plaintiffs contend that the father is es-topped by his conduct from claiming the property, independent of the lease. Certainly, the father, as lessor, lost [205] none of his rights by merely allowing his son, as lessee, to go into possession; otherwise, any lessor of chattels would, be in danger of losing his property. One of the objects of .every lease is to secure possession to the lessee. The only other matter calling for consideration is the fact that at the time the father, through the agency of his daughter, Mary, bought and paid for the furniture and goods to be placed in the hotel and to be leased to the son, the son was present and selected the same. The good faith and genuineness of the whole transaction, so far as the father is concerned, are abundantly established by the evidence and findings of the court. The mere fact that such purchase was made by the father just before giving the lease gave the son no more right to dispose of the property than if the father had owned the property for months or years prior to giving the lease. The father neither said nor did anything to mislead the plaintiffs or either of them, or to induce them or either of them to give credit to the son. The case is entirely unlike one where the person in possession of chattels or goods is clothed with the apparent authority to sell and give an absolute title to the property. We must hold that such mere presence of, and selection by, the son, at the time of the purchase, and his subsequent possession of the property so purchased, under and by virtue of the lease, did not estop the father, as lessor, from claiming the property, as against the son’s subsequent creditors and mortgagees. We fully recognize the equitable rule invoked by counsel for the plaintiffs, to the effect that he who has been silent as to his alleged rights when he ought, in good faith, to have spoken, shall not be heard to speak when he ought to be silent. That doctrine, however, always presupposes mistake or error on the one side, and fault, deceit, or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage. In the case at [206] bar, it does not appear that the father was ever silent as to his alleged rights, when he ought, in good faith, to have spoken. Morgan v. Pierron, 64 Wis. 523; Walker v. Grand Rapids F. M. Co. 70 Wis. 92. In Johnson v. Crofoot, 53 Barb. 574, seemingly relied upon by counsel, the property in controversy belonged to the lessee, and the only claim the lessor’s assignee had to the same was by virtue of a clause in the lease in the nature of a chattel mortgage; and it was • held that as the lease was never filed as a chattel mortgage, as required by the statute, he had thereby lost his security, as against an execution creditor of the lessee. Of course, a lessee may sell or incumber his own property. Colville v. Miles, 127 N. Y. 159. By the Ooiort.-— The judgment of the circuit court is affirmed.