Hovie v. Pleshek

Owen, J. The demurrers were based upon the proposition that the lease is void because a portion of the premises demised constituted the homestead of the plaintiff and the wife did not sign the lease. Sec. 2203, Stats., provides that “no mortgage or other alienation by a married man of his homestead, exempt by law from execution, or any interest therein, legal or equitable, present or future, by deed or otherwise, without his wife’s consent, evidenced by her act of joining in the deed, mortgage or other conveyance, shall be valid or of any effect whatever, except a conveyance from husband to wife.” In Rosenthal v. Pleck, 166 Wis. 598, 166 N. W. 445, it was held that this “statutory condemnation reaches every feature of the contract that involves the alienation of the homestead, to the end that no valid obligation for its alienation or of any interest therein, or for the incurring of any liability thereunder, can be made by the husband without the wife’s consent.” This construction of the statute was reaffirmed in Helander v. Wogensen, 179 Wis. 520, 191 N. W. 964. In view of this construction of the statute [58] quoted there can be no escape from the conclusion that the lease in this case is absolutely void. The allegation in the complaint to the effect that the wife was at all times ready and willing to sign the lease and that notice was served upon Pleshek pi'ior to his abandonment of the farm by plaintiff’s wife to the effect that she was- ready and willing to sign the lease, cannot change this conclusion. The rights of the parties were fixed by the execution and delivery of the lease, and it is apparent that these rights could not be changed by the voluntary offer of the wife, unaccepted by the lessee, to sign the lease. It has been held in other jurisdictions that a lessee who enters under a void lease is .estopped to deny the validity of the lease. Mauldin v. Cox, 67 Cal. 387, 7 Pac. 804; Grant v. White, 42 Mo. 285; Jamaica v. Hart, 52 Vt. 549; Oliver v. Gary, 42 Kan. 623, 22 Pac. 733. The leases under consideration in the California, Missouri, and Kansas cases demised the homestead and were unsigned by the wife. In this respect they are very similar to the lease in the instant case. The conclusions reached in those cases are not well fortified by principles of logic. The courts seemed to think it necessary to apply the principle in order to prevent injustice, and declared .that, as the lessee could not dispute his landlord’s title, the same principle, estopped him from denying the validity of the lease under which he held. We do not think this conclusion is either logical or necessary to prevent injustice. It is quite generally held that the entry and payment of rent under a void lease creates the relation of landlord and tenant, but that relation arises out of the occupation and' irrespective of the lease. 35 Corp. Jur. 960, and cases there cited. This doctrine prevents the tenant from denying the relation of landlord and tenant and destroys the adverse character of his occupancy. This principle is sound, well supported by authority, and prevents the injustice which the courts, adopting the principle that one who enters under a [59] void lease is estopped from denying its. validity, attempted to avoid by the application of the latter principle. The case of Vinz v. Beatty, 61 Wis. 645, 21 N. W. 787, supports the proposition that the relation of landlord and tenant arises from the entry and occupation under a void lease. It is not necessary here to consider the nature of the tenancy thus resulting. It has been held to be a tenancy at will, a tenancy from month to month, and a tenancy from year to year. Probably it depends upon the peculiar circumstances of each case. Here, however, the rights of the parties do not in any manner depend upon the character of the tenancy. The lessee was in the possession and occupancy of the premises until the 7th day of December, when that relation was terminated by his moving off and the lessor moving on the premises. Plaintiff claims no rights except for the recovery of rent during the period of occupancy. To that he is entitled, although he cannot base his claim upon the written lease. His cause of action in that behalf rests upon implied contract for the reasonable value of the use of the premises during the period of occupancy. As the plaintiff has no rights under the written lease, the demurrer of tbe defendant Pleshek to the first and second causes of action should have been sustained. As the contract or lease the performance of which was guaranteed by the defendant Wanie is void and creates no liability against the principal, Pleshek, it follows that the guaranty is also void, and that the complaint states no cause of action against the defendant Wanie. 20 Cyc. 1420. Wanie demurred to all three causes of action. Plis demurrer should have been sustained. By-the Court. — Order reversed, and cause remanded with instructions to sustain the several demurrers.