#### Illinois Steel Company, Respondent, vs. Kohnke, imp., Appellant.

*November 22*

December *10, 1912.*

*Limitation of actions: Adverse possession: Ejectment against tenants: Effect as to landlord: Privity.*

An action of ejectment brought by the true owner of land against tenants occupying the same operates to interrupt the running of the statute of limitations (in this case sec. 4211, Stats. 1898) in favor of the landlord, when he is in possession only through such tenants, although he is not a party to the suit. To that extent there is privity between tenant and landlord.

Appeal from a judgment of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

*Affirmed.*

On September 10, 1897, the plaintiff herein commenced an action against the defendants William Treu and wife to recover possession of certain property, the complaint alleging an estate in fee in the plaintiff and the unlawful withholding and occupancy thereof by the defendants. On September 23, 1897, the defendants William Treu and wife answered, allege ing among other things that they were tenants of Andreas Kohnke, now deceased, and that he was a necessary and proper party defendant. On March 31, 1906, in accordance with a *411previous order of tbe court making *Christina■ Kohnlee,*wife of Andreas Kobnke, deceased, a party defendant, tbe plaintiff served an amended complaint on tbe defendants. ■ On April 13, 1906, tbe defendant *Christina Kohnlee*answered, setting up as a defense adverse possession by ber grantors and predecessors for a period of more .than twenty years immediately preceding tbe commencement of tbe action. On March 5, 1912, on leave of tbe court, tbe defendant *Christina Kohnlee*served and filed an amended answer in wbicb sbe alleged ten years’ adverse occupancy under a written instrument, and as a new defense pleaded tbe ten-year statute of limitations applicable to tbe facts set forth.

On tbe trial tbe defendants introduced testimony to show that in tbe summer of 1891 Henry Troy built a bouse on tbe property in question and took up bis residence there; that in 1892 be removed therefrom and rented tbe premises to one Obarles Tessler, who continued 'to occupy the place; that in August, 1893, Troy and wife sold tbe property to Andreas Kobnke and that Tessler continued to occupy tbe same, paying rent thereafter to Kobnke until some time in 1896, at wbicb time .William Treu became a tenant of Kobnke and resided on tbe premises with bis wife until shortly after tbe commencement of this action in 1897, and that thereafter tbe premises were occupied by various parties who were tenants of *Christina Kohnlee.*At tbe close of tbe trial judgment was entered on a directed verdict in favor of tbe plaintiff, and from such judgment tbe defendant *Kohnlee*appeals.

Eor tbe appellant there was a brief by *Fiebing & Killilea,*attorneys, and *Moritz Wittig*'and *Henry J. Killilea,*of counsel, and oral argument by *Mr. Wittig.*

Eor tbe respondent there was a brief by *Theodore Kron-shage, Jr.,*and *John H. Paul,*and oral argument by *Mr. Kron-shage.*

Barnes, *J.*

There was evidence tending to show that in 1893 one Henry Troy sold and conveyed tbe land in dispute *412to Andreas Kohnke. Troy was apparently a squatter wbo bad no title to tbe land wbicb be sold. Kohnke died in 1905 and bis widow succeeded to bis rights in tbe property and is now one of tbe defendants in tbe action. Tbe-premises were occupied by tbe Kohnkes or tbeir tenants from tbe time of tbe purchase until the action was tried in 1912. In 1897, when tbe action was commenced, William Treu and wife occupied tbe premises as tenants and tbe action was begun against them only. *Mrs. Kohnke*was not made a party defendant until 1906. She claims uninterrupted adverse possession from tbe time of tbe purchase in 1893 until she was made a defendant in 1906. She further claims that her husband took possession of tbe premises under claim of. title, wbicb claim was founded on a written instrument of conveyance, and that she now has good title by virtue of tbe ten-year statute of limitations (sec. 4211, Stats. 1898). Plaintiff traced tbe original title to itself.

As we view it tbe appeal presents but one question, and that is, Did tbe action wbicb tbe plaintiff brought against tbe tenants in possession operate to interrupt tbe running of tbe ten-year statute of limitations in favor of tbe landlord ? If this question should be answered in tbe affirmative tbe circuit court was right in directing a verdict, no matter what tbe grounds of its decision were.

It was tbe general rule at common law that in actions of ejectment tbe only necessary parties defendant were those in tbe actual occupancy of tbe premises over wbicb tbe controversy arose. Under this rule it was held that tbe tenant in possession was a necessary party and that bis landlord was not. 15 Oyc. 82-84; 10 Am. & Eng. Ency. of Law (2d ed.) 526; 7 Ency. PL & Pr. 301, 304. Tbe existence of this rule of law was probably one of tbe reasons for tbe passage of sec. 18 of cb. 91, R. S. 1858, now sec. 2197 of our Statutes, by which it is made tbe duty of tbe tenant to notify tbe landlord of any proceeding brought for the recovery of tbe leased property or tbe possession thereof.

*413Tbe statutory action of ejectment may be brought for tbe recovery of real property or for tbe recovery of tbe possession thereof. Sec. 3073, Stats. (1898).

If tbe premises are actually occupied, such actual occupant must be made n defendant. Sec. 3075, Stats. (1898). Treu and wife were tbe actual occupants of tbe premises in suit when tbe action was commenced .and were necessary parties to tbe suit under this statute.

Tbe plaintiff may join as defendants with tbe occupants those claiming title, but be is not obliged to do so if the party who makes tbe claim is not in possession and plaintiff seeks to recover possession only. See. 3076, Stats. (1898). Plaintiff is entitled to judgment if he succeeds in proving right of possession. Sec. 3079, Stats. (1898). These statutes, as well as secs. 3084 and 3086, Stats. (1898), clearly show that an action of ejectment may still be maintained when recovery of possession only is sought.

Tbe appellant insists that there was no privity between tbe landlord and tbe tenant, and that neither tbe commencement of tbe action against tbe tenant nor tbe final judgment against him could affect tbe landlord who was not a párty to tbe suit, and that tbe action was not commenced against *Mrs. Kohnke*until tbe summons was served on her in 1906. The following cases, among others, are cited and relied on to support her contention: *Levy v. Wilcox,*96 Wis. 127, 132, 70 N. W. 1109; *Webster v.*Pierce, 108 Wis. 407, 418, 83 N. W. 938; *Wis. River L. Co. v. Paine L. Co.*130 Wis. 393, 396, 397, 110 N. W. 220; *Kent v. Lasley,*48 Wis. 257, 261, 4 N. W. 23; *Mariner v. Chamberlain,*21 Wis. 251; *Smith v. Pretty,*22 Wis. 655, 657; *Pewaukee v. Wis. Lakes I. & C. Co.*110 Wis. 67, 85 N. W. 660; *Cypreanson v. Berge,*112 Wis. 260, 87 N. W. 1081; and *Prahl v. Rogers,*127 Wis. 353, 106 N. W. 287.

Without undertaking to discuss these cases in detail, it may be said that they are to tbe effect that a judgment in an action of ejectment against a tenant who is a party does not operate *414to deprive a landlord who is not a party of either bis title or of bis future right of possession. They do not hold that the commencement of an action against the tenant does not interrupt the running of the statute of limitations in favor of the landlord. The authorities passing upon this question directly are not numerous. The Texas court has passed upon it and held that where one person was holding possession of lands by his tenant, that possession ceased to be peaceable when the tenant was sued for possession. Continuing, the court said:

> “A claimant of land who brings his action against the party whom he finds in possession thereby stops the running of limitation in favor of that party’s landlord. There is such privity between the tenant and landlord that, for the purpose of stopping limitation, the suit against the tenant is as effectual as if brought against the landlord also.” *Read v. Allen,*56 Tex. 180, 181.

Other cases to the same effect are *Read v. Allen,*58 Tex. 380; *Allen v. Read,*66 Tex. 13, 17 S. W. 115; *Stout v. Taul,*71 Tex. 438, 9 S. W. 329; *Galbraith v. Howard,*11 Tex. Civ. App. 230, 32 S. W. 803, 807.

A question closely akin to the one under discussion was before this court. The action was one to quiet title, plaintiff claiming to have been in possession of an interest in the premises by virtue of the occupancy of the land by a tenant. An action of ejectment had been commenced and prosecuted to judgment against the tenant by another claimant to the land, the landlord not being made a party to such suit. The plaintiff recovered judgment and the tenant against whom the action was brought then leased the premises from such plaintiff. The effect of the judgment was considered, and it was held that the possession was adversely and completely changed by virtue of the judgment, and that “the landlord is, so far, bound by the judgment, notwithstanding the want of notice, though he is not bound as to the title, or future right of possession. The tenant who neglects to give notice violates his *415allegiance to bis landlord, but that is only a matter between him and his landlprd, and not one which, can affect the party who has recovered possession from the tenant, except the recovery be collusive, or obtained by tampering with the tenant. It is the same as if the tenant had-delivered over the possession wrongfully to another person. The landlord must bring an action of ejectment to recover it.” *Stridde v.*Saroni, 21 Wis. 173, 178. The court holds in this case that the judgment operates to change the possession from the landlord to the plaintiff in the action, although it is not conclusive as to title or future right of possession. ~ If such is the effect of a judgment where the tenant only is made a party defendant, it would seem to follow logically enough that the commencement of the action to recover possession would interrupt the running of th,e statute of limitations in favor of the landlord.

The general rule is of course well settled that judgments are binding only on parties and their privies. It is also laid down as a general proposition that there is no privity between landlord and tenant, because the landlord does not derive his title from, through, or under him. “No one is privy to a judgment whose succession to the rights of property thereby affected occurred previously to the institution of the suit.” 1 Freeman, Judgments (4th ed.) § 162.

But it is not correct to say here that there was no privity between Andreas Kohnke and his tenants. The deed which he obtained to the premises apparently did not convey a shred of title. It only served to shorten the period of adverse possession that would be necessary to acquire good title in that manner. The only possession which Kohnke or his wife had up to the time the action was commenced against *Mrs. KoJinlce*was the possession obtained by virtue of the occupancy of the premises by their tenants. It was solely through this possession that they could claim the 'benefit of the statute of limitations. The defendant *XoTinlce*would not be entitled to the protection of such statute if an action were brought against *416her or her husband during the ten-year period. The Kohnkes having possession through their tenants only, any challenge of the possession of the tenant was necessarily a challenge of the possession of the landlord.

Where the owner of a parcel of land finds some person in the actual occupancy thereof and commences an action to oust such occupant and recover possession, this is a pretty substantial assertion on the part of the owner of intention to claim what belongs to him. We have and can have no exact definition of what a disseised owner must do in the way of reclaiming his property in order to interrupt the running of the statute. It is said in *Ill. S. Co. v. Budzisz,*115 Wis. 68, 87, 90 N. W. 1019:

> “The most essential element in such a case is the *‘animus clamandi/*and that may be inferred from circumstances. It is not necessary that it should be made manifest by any formal declaration to anybody. The necessary purpose being clear, if the element of notoriety is sufficient to bring the situation home to the attention of the adverse occupant, if he is paying such heed to his possession as a person under the circumstances would ordinarily pay, that is sufficient.”

Mere verbal denials of the right of the adverse occupant by the owner, or loose claims of title in himself, or ineffectual protests short of a disturbance of the rights of the adverse claimant in a legal sense and short of an assertion of right in himself, will not interrupt the running of the statute. 1 Cyc. 1069; *Ill. S. Co. v. Budzisz, supra.*But challenging the right of the occupant by bringing him into court is as direct and as positive an assertion of right as could well be made.

Our statutes of limitation deal quite liberally with the invader who hoists a hostile flag over that which does not belong to him. Where the true owner finds the intruder and proceeds to assert his rights by taking the necessary legal steps to evict such intruder, we think it should be held that there*417after the statute of limitations ceases to run either in favor of the actual occupant or one who occupies the relation of landlord to such occupant. It follows from what has been said that the judgment appealed from is correct.

*By the Court.*— Judgment affirmed.