Hill v. Sidie

WiNslow, J. The sole question in this case is as to the legal effect of that clause in the land contract which provides that in case of default in payments the vendee shall hold the premises as “tenant of sufferance” of the vendor. The plaintiff claims that this clause operates to change the relation of the parties, so far as possession of the land is concerned, into that of landlord and tenant, and relies upon Wright v. Roberts, 22 Wis. 161. The defendant, on the other hand, claims that the principle stated in Wright v. Roberts has been completely overruled by the later ease of Diggle v. Boulden, 48 Wis. 477, 4 N. W. 678. There is certainly a direct conflict in principle between the two cases. Wright v. Roberts was a case where the exact point in the case at bar was presented, and it was held, under a precisely 'similar contract, that upon default an action for use and occupation could be maintained, because by the clause in question the parties had created the relation of landlord and tenant, with all the remedies which were incident to that relation. On the other hand, it is held in Diggle v. Boulden, where, under a similar contract, the vendor upon default brought an action in equity to foreclose the contract, that the objection that the vendor had an adequate remedy at law, by proceeding against the vendee as a tenant at sufferance, could not be maintained, because the vendee “had rights and equities under his contract of purchase which would defeat an action at law against him as a mere tenant at sufferance; and such an action would not lie [605] in such a case where the appellant is in possession as purchaser, having paid part of the purchase money.” In both of the eases cited, as in the case at bar, the vendee was in possession under the contract of sale. The first case goes upon the principle that the clause in question is effective to change-the relationship of the parties, so far as possession of the real estate is concerned, to the relationship of landlord and tenant, and the other upon the principle that it does not change-such relationship so long as the vendee has any equity under his contract. There is no way of reconciling the two cases, and the difficulty is increased, rather than diminished, by the-fact that the former case is not referred to in the later case, although it was cited in the briefs and relied upon as authority. Another fact is of some significance, namely, the-fact that Wright v. Roberts has not been affirmed or even cited in any subsequent opinion in this court. It certainly is important that the rule in such cases be definitely and certainly settled. It is not so important how it be settled, as it is-that there should be no doubt about it. It is in the lull sense-a rule of property, and should not be -subject to changes. Viewed in this light, it seems that the rule as laid down in Biggie v. Boulden should be followed. It has stood upon the-books for nearly twenty-three years as the last authoritative-utterance of this court upon the question. It must be presumed that it has been regarded as stating the position of' this court, and also that contracts which have been made since-that time have been made with reference to it. It has support in the general and familiar doctrine that the law does-not favor forfeitures of valuable rights, and will endeavor to-avoid them. It finds support, also, in the following cases:. Chicago, B. & Q. R. Co. v. Skupa, 16 Neb. 341, 20 N. W. 393; Ellsworth v. McDowell, 44 Neb. 107, 62 N. W. 1082. By the Court. — Order reversed and action remanded, with directions to sustain the demurrer.