#### Munkwitz Realty & Investment Company, Respondent, vs. City of Milwaukee, Appellant.

*April 6*—

October *4, 1910.*

*Vendor and purchaser of land: Grantor continuing in possession: Trespass: Recovery for use and occupation: Municipal corporations: Implied contracts.*

1. A grantor wko continues in possession of land without demand by the grantee for possession holds in subordination to the grantee’s title, and is not liable as a trespasser prior to a refusal to deliver possession on demand.

2. Sec. 2196, Stats. (1898), permitting recovery by a landlord for the use and occupation of lands or tenements under any agreement not made by deed, requires that there must be an agreement express or implied.

3. Where a city after conveying certain premises continued to use and occupy them without any agreement, express or implied, to pay rent, the grantee cannot recover for such use and occupation.

[4. Whether in such a case the city could be bound by an implied contract to pay rent, not determined.]

*231Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNCe W. Halsey, Circuit Judge.

*Reversed.*

Tbe action is to recover for tbe use and occupation of a building in tbe city of *Milwaukee*from June 1, 1906, until February 1, 1907. Tbe facts are not in dispute. Tbe city owned tbe building and tbe lot on wbicb it stood prior to May 24, 1906, and used it for tbe accommodation of tbe meter department of tbe city waterworks system. On tbe last-named date tbe city sold and conveyed tbe property to tbe Light Horse Squadron Armory Association, and on tbe following day tbe grantee sold and conveyed it to tbe plaintiff, wbicb bas ever since owned it. Tbe water department of tbe city continued to occupy tbe building until February 1, 1907, without lease and without permission or authority of tbe plaintiff or demand for rent. Tbe complaint charged that tbe city entered upon and bad tbe use of tbe property for tbe time stated to tbe damage of tbe'plaintiff in tbe sum of $800, alleged that plaintiff waived tbe defendant’s tort, and that such use and occupation was reasonably worth $800, for wbicb sum judgment was demanded. There was a jury trial j tbe jury in answer to a special question found tbe damages to be $560; and tbe court rendered judgment for tbe plaintiff for this sum, from wbicb judgment tbe defendant appeals.

For tbe appellant tbe cause was submitted on tbe brief of *John T. Kelly,*city attorney, and *Clinton G. Price,*first as¡-sistant city attorney.

For tbe respondent there was a brief by *Winlcler, Flanders, Bottum &*Fcmsetb, and oral argument by *C. F.*Fawsett.

Tbe following opinion was filed May 24, 1910:

WiNslow, O. J.

This is an action to recover for tbe use and occupation of real estate. Tbe judgment seems to have been based on tbe ground that tbe city was a trespasser during its occupancy and that tbe plaintiff bas chosen to waive *232the tort and recover upon implied contract. The difficulty with this theory is that we can discover no trespass. The authorities are numerous to the effect that where, by the laches of the grantee, a grantor holds possession after his conveyance he holds as a tenant at sufferance. 1 Washb. Real Prop. (6th ed.) § 826; 18 Am. & Eng. Ency. of Law (2d ed.) 178, note 1, and authorities cited. It may be doubtful whether this would be so in Wisconsin since the decision of the cases of *Meno v. Hœffel,*46 Wis. 282, 1 N. W. 31, and *Eldred v. Sherman,*81 Wis. 182, 51 N. W. 441, which decide that a tenant holding over after his term does not become a tenant at sufferance unless the landlord expressly or impliedly admit that the relationship of landlord and tenant continues. It seems unnecessary to decide this question, however. The continued occupation of the property was not adverse to the grantee’s title, but in subordination thereto. *Schwallback v. C., M. & St. P. R. Co.*69 Wis. 292, 34 N. W. 128; *Riha v. Pelnar,*86 Wis. 408, 57 N. W. 51. Under such circumstances the grantor does not continue in possession as owner, but is estopped from denying his grantee’s title. And in *McCormick v. Herndon,*86 Wis. 449, 56 N. W. 1097, it is said that he holds as tenant for his grantee and will be treated as holding the premises in subserviency to his grantee until he makes an explicit disclaimer of such relation. Under any theory, therefore, we can see no ground for holding that the city was a trespasser prior to a refusal to deliver possession on demand; hence there was no recovery justified on the ground that a tort had been committed. But we do not think the judgment should be reversed because the complaint is framed on the theory of a tort if the undisputed facts show a liability upon contract, so long as it appears that the parties have not been misled and the defendant has lost no rights.

Our statute provides that “any landlord may recover a reasonable satisfaction for the use and occupation of any lands or tenements by any person under any agreement not made *233by deed.” [Sec. 2196, Stats. 1898.] Tliis statute is in ■substance the same as sec. XIV, c. XIX, 11 Geo. II., which was originally passed to obviate an ironclad rule of the common law to the effect that there .could be no action in *assump-sit*for rent except upon express promise made at the time of the demise.

This statute was under consideration in *Ackerman v. Lyman,*20 Wis. 454, which was an action for use and occupation of lands by one who was originally .a trespasser, and it was held that the action for use and occupation in this state rests on this section, and that the section requires that there must be an agreement, express or implied, and that it may be implied from the defendant’s entering into possession by permission of the plaintiff, or from acts showing the assent of the defendant after a tortious entry to hold under the permission of the plaintiff. It was in effect followed in *De Pere Co. v. Reynen,*65 Wis. 271, 22 N. W. 761, 27 N. W. 155, where it was held that an action for use and occupation does not lie unless the relation of landlord and tenant exist between the parties. It is in harmony, also, with *Preston v. Hawley,*101 N. Y. 586, 589, 5 N. E. 770, and with numerous cases cited in 2 Ency. Pl. & Pr. 1026, note 2. See, also, Keener, Quasi-Contracts, 191, 192.

There are no facts shown here from which an agreement to pay rent can be implied, even granting that the city could be bound by an implied contract in any event, a proposition which is, to say the least, doubtful. *Chippewa B. Co. v. Durand,*122 Wis. 85, 99 N. W. 603; *Appleton W. W. Co. v. Appleton,*132 Wis. 563, 113 N. W. 44. The conclusion is that there can be no recovery either upon the theory of tort or the theory of contract.

*By the Court.*— Judgment reversed, and action remanded with directions to dismiss the complaint.

The respondent moved for a rehearing or for a modifica*234tion of tbe judgment and mandate by changing tbe judgment of reversal to one of affirmance.

Eor tbe respondent there was a brief in support of tbe motion by *Winkler, Flanders, Boltwm & Fawsett,*and for tbe appellant a brief by *Daniel W. I-Ioan,*city attorney, and ,W. *H.*Timlin, *Jr.,*special assistant city attorney.

Tbe motion was denied October 4, 1910.