#### Lathrop, Appellant, vs. Millar, Respondent.

*March 16*—

April *5, 1911.*

*Landlord and tenant: Unlawful detainer: Ejectment.*

An action for unlawful detainer cannot be maintained against one who went into possession of a dwelling house under an oral 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, and who is not in default. If such oral agreement is void, ejectment, not unlawful detainer, is the proper remedy, because the conventional relation of landlord and tenant does not exist.

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

*Affirmed.*

This is an action of unlawful detainer for the nonpayment of rent. The defendant denied that the relation of landlord and tenant existed, and alleged that he went into possession of the dwelling house in question in May, 1905, under an oral agreement with Jason Lathrop (the then owner) that he (Millar) should live in the house rent free during said Jason’s life, and have the charge and management of said Jason’s property and furnish him a room and support during his life, for all of which services *Millar*was to receive, in addition to the use of the dwelling, $100 per month. The defendant further claimed that Jason Lathrop lived with him under this arrangement until the latter part of 1906, when he left without cause and did not return, and that he (plaintiff) stood ready at all times to receive said Jason back in pursuance of his contract. Trial by jury was waived. It appeared on the trial that Jason Lathrop, the original owner of the premises, was very old and infirm in 1905 and was without immediate family, but was living on the premises in dispute with the family of a tenant; that the defendant *Millar*had married his granddaughter and was living in Milwaukee; that as a result of some negotiations *Millar*came to reside in *83Kenosba in May, 1905, and moved into tbe premises witb Latbrop’s consent, and tbey lived together till tbe =fall o£ 1906, when Latbrop left and went to reside witb a friend at Twin Lakes, Kenosba county. In February, 1907, La-tbrop deeded all of bis property, including tbe dwelling bouse in question, to tbe plaintiff, bis son, and in April following tbe plaintiff commenced tbis action of unlawful detainer, claiming to recover on account of tbe nonpayment of rent.

Tbe trial court found as matters of fact, in substance, that about April 1, 1905, an oral agreement was entered into by and between Mr. Jason Latbrop and tbe defendant *Millar,*by which it was understood that tbe defendant should receive from Jason Latbrop tbe use and occupancy of tbe premises in question without tbe payment of rent or other charges during tbe lifetime of Jason Latbrop, tbe defendant to give tbe old gentleman suitable board and lodging during such time at tbe dwelling bouse on said premises, and that the defendant was to attend to Mr. Latbrop’s business and receive compensation for such services, but not a fixed sum of $100 per month; that Jason Latbrop left tbe defendant’s borne late in tbe year 1906 or tbe fore part of 1907, without just cause, and that so long as defendant is ready and willing to comply witb bis part of tbe agreement said agreement is in full force and effect, and tbe defendant cannot be ousted from tbe possession of said premises; that by tbe terms of said agreement a room was reserved in tbe dwelling bouse on said premises for tbe use of said Latbrop; and that said *Millar*thus far bad pen-formed his part of the agreement and was ready, willing, and able to continue to do so.

As conclusions of law tbe court found that tbe agreement was and still is in force and effect; that tbe defendant cannot be ousted from possession nor compelled to pay money rental for tbe premises provided be faithfully performs said agreement, or stands ready, willing, and able to do so; that whatever right tbe plaintiff has acquired, tbe same is subordinate *84to that of the defendant; and that the defendant is entitled to judgment of dismissal on the merits.-

The cause was submitted for the appellant on'the brief of *Wallace Ingalls,*and for the respondent on that of *Peter Fisher.*

Counsel for the respondent cited 1 Taylor, Land! & T. (8th ed.) § 24; *Kerrawis v. People,*60 N. Y. 221; *Haywood v. Miller,*3 Hill (N. Y.) 90; *Oakley v. Schoonmaher,*15 Wend. 226; *Buel v. Buel,*16 Wis. 413; *Nightingale v. Bar-ens,*41 Wis. 389; *Maxham v. Siewart,*133 Wis. 525.

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. *85This 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.