Summary
In Ubbink v. Nieman Co., 265 Wis. 442, 62 N.W.2d 8 (1953) the court stated: "the actual, open, notorious, and visible possession by a tenant is notice to the purchaser of all the tenant's rights and interests in the property.
Summary of this case from Matter of FitzpatrickOpinion
December 1, 1953 —
December 30, 1953.
APPEAL from a judgment of the circuit court for Ozaukee county: W. C. O'CONNELL, Circuit Judge. Reversed.
For the appellant there was a brief by Schanen, Schanen Pauly of Port Washington, and oral argument by Erwin N. Pauly.
For the respondents there was a brief by Charles L. Larson, attorney, and Stuart G. Grady of counsel, both of Port Washington, and oral argument by Mr. Larson.
Action begun June 27, 1952, by Joseph J. Ubbink and Arnold Ubbink against Herbert A. Nieman Company to recover damages for the value of an office building and scales which plaintiffs as tenants had installed as trade fixtures on certain leased premises, of which premises the defendant was a former owner. Judgment was granted May 13, 1953, in favor of the plaintiffs in the sum of $974.48.
The case was tried to the court, and important points appear in the following facts:
On July 25, 1942, the defendant acquired the real estate on which the property claimed by the plaintiffs was situated, and the deed contained the following:
"Subject to lease of the grantors to Joe Ubbink and Arnold Ubbink, doing business as a copartnership, dated February 15, 1941, and expiring, by amendment, September 30, 1942, on a part of the above-described premises."
The lease itself was never recorded, but plaintiffs continued to occupy the premises under an oral agreement with the defendant.
The plaintiffs carried insurance upon the scales and office building and paid the taxes thereon to the city of Cedarburg continuously until the time the real estate was sold by the defendant to the Kiekhaefer Corporation on December 29, 1950, and plaintiffs were acknowledged by defendant to be owners of the scales and building.
The deed of conveyance by which the defendant conveyed the real estate to the Kiekhaefer Corporation on December 29, 1950, contained no reservations or exceptions and did not refer to the interest of the plaintiffs in the scales and building which they occupied and which were situated on the real estate.
Plaintiffs did not remove scales or building from the property, and the oral lease between them and defendant was in full force and effect on December 29, 1950, when the real estate was conveyed to the Kiekhaefer Corporation.
Although the said conveyance was made during the lease term, the Kiekhaefer Corporation refused to allow the plaintiffs to remove their said property or any of it from the premises.
The trial court concluded: "That the sale by the defendant to the Kiekhaefer Corporation during the lease term included the plaintiffs' property consisting of the building and scales in question and their right to remove it as to the Kiekhaefer Corporation because the plaintiffs' lease was not recorded in the office of the register of deeds of Ozaukee county, Wisconsin."
The conclusion just quoted contains the error which is considered in this opinion.
By reason of the several transfers of title to the real estate, the plaintiffs came under successive landlords. However, plaintiffs' relation and responsibilities to each successive landlord were practically the same. They were the tenants of the defendant until Nieman sold out to the Kiekhaefer Corporation. They became tenants of the Kiekhaefer Corporation when that corporation purchased the premises during the lease term, on December 29, 1950, and took the real estate subject to such rights as then existed in the plaintiffs. Plaintiffs were tenants in possession. That possession was "actual, open, notorious, and visible possession" by the plaintiffs and constituted constructive notice to the purchaser, the Kiekhaefer Corporation. The defendant conveyed to the Kiekhaefer Corporation only such rights as the Nieman Company possessed at the time it sold the premises. At that time the defendant ceased to bear any relation to the plaintiffs, because there was then brought into existence a superseding landlord-tenant relationship in which the Kiekhaefer Corporation and the plaintiffs were the actual parties.
The Kiekhaefer Corporation was put on inquiry by the existing physical evidence of plaintiffs' occupancy, and it became the duty of the Kiekhaefer Corporation to determine the rights of such tenants, if any, then existing in their favor, and it is bound by what it would have discovered by such inquiry.
In an early case, Fery v. Pfeiffer, 18 Wis. *510, *517, in a comprehensive statement by Mr. Chief Justice DIXON, the general rule is declared to be: ". . . the plaintiff was in possession at the time of the execution of those conveyances, and the grantees were bound to take notice of his rights." Many rulings on questions of that character have since occurred, universally holding that the actual, open, notorious, and visible possession by a tenant is notice to the purchaser of all the tenant's rights and interests in the property, and that one succeeding to ownership is charged with constructive notice of the legal and equitable rights of the tenant in the premises under a lease. Pippin v. Richards, 146 Wis. 69, 130 N.W. 872; State v. Jewell, 250 Wis. 165, 26 N.W.2d 825, 28 N.W.2d 314; Miller v. Green, 264 Wis. 159, 58 N.W.2d 704. See also 5 Tiffany, Real Property (3d ed.), p. 73, sec. 1291; 8 Thompson, Real Property (perm. ed.), p. 413, sec. 4516; 55 Am. Jur., Vendor and Purchaser, p. 1087, sec. 712, p. 1090, sec. 716; 66 C. J. S., Notice, p. 646, sec. 11(c). The obligations arising from the terms of the lease passed with the sale to the Kiekhaefer Corporation.
The question of whether plaintiffs have been unlawfully interfered with in respect to their rights or whether they have abandoned their rights is a matter for adjustment between the plaintiffs and their last-succeeding landlord, the Kiekhaefer Corporation. These matters in difference could not be determined within the limits of an action by plaintiffs against Herbert A. Nieman Company, the defendant as here, and cannot be the basis of the cause of action alleged in the complaint. It follows, therefore, that the real issue has not been tried, and that the judgment must be reversed, there being no cause of action shown to exist against the defendant.
By the Court. — Judgment reversed and cause remanded with direction to dismiss the complaint.