Lathrop v. Millar

WiNsnow, O. J. The only contention made by the appellant is one of fact, namely, that the evidence does not support the court’s finding to the effect that the agreement claimed by the defendant (except that part pertaining to the monthly salary) was in fact made. Much space might be used in reviewing the evidence pro and con upon this question, but it would be mere wasted space; it must be sufficient to say that we have carefully examined the evidence and find it entirely sufficient to support the finding. With this fact established, namely, that the defendant went into possession under an agreement with the owner that he might retain possession without payment of rent during the life of the owner in consideration of services and support, it is quite certain that the action of unlawful detainer cannot be maintained, because, if the agreement be valid and enforceable, then the defendant being not in default is entitled to insist that it be carried out. If, on the other hand, it be void under the statute of frauds, ejectment and not unlawful detainer is the proper remedy, because the conventional relation of landlord and tenant does not exist, but only a tenancy at will or by sufferance resulting by implication of law. Buel v. Buel, 76 Wis. 413, 45 N. W. 324; Maxham v. Stewart, 133 Wis. 525, 113 N. W. 972. So in either event the judgment of dismissal of the complaint must be affirmed. 85 This affirmance, however, is not to be construed as affirming tbe correctness of tbe legal conclusion stated by tbe trial court in its findings to tbe effect that tbe oral agreement is valid or can be enforced. There may be doubt upon that proposition. It was not argued, and we -do not find it necessary -either to approve or disapprove of it. In affirming tbe judgment that question is left open and may be litigated in any future litigation between tbe parties without embarrassment resulting from this decision. This affirmance simply decides tbe proposition that an unlawful detainer action cannot be brought by tbe plaintiff whether tbe agreement be valid or not, and determines nothing as to its validity. By the Court. — Judgment affirmed.