#### Seatoff vs. Anderson.

VENDOR and Purohaser: (1) *Sights of one in possession of land under executory contract of sale, as to removal of house.*(3) *Sis rights as against one who holds the legal title, as against him, only as security.*

1. Possessor of land, under an executory contract of sale lias no right to remove a building erected thereon, without the consent of the holder of the legal title.

*2.*One who has taken the title since the contract of sale, and charged with knowledge of the rights of him in possession, and who has agreed to *213pay the contract price for the latter, and hold the title and sell the land for his benefit, has at least the rights of a mortgagee, and may recover for any damage done to the property (as by removing a building therefrom) which permanently diminishes the value of his security.

APPEAL from tbe Circuit Court for *Winnebago*County.

Action to recover damages for removing a bouse from a lot in tbe town of “ Tbé Island,” Winnebago county. One Sperry, tbe owner of tbe lot, executed a contract in 1866 to Sorrenson, agreeing therein to convey bim tbe lot upon payment of tbe purchase price in instalments at tbe times stipulated. Sorrenson built a bouse on tbe lot, but did not fulfill tbe contract on bis part, and tbe plaintiff, wbo bad beén acting as Sperry’s agent, bought tbe premises, with Sorrenson’s approval, in April, 1869, taking a deed from Sperry, and paying bim what was due from Sorrenson on tbe contract; and a verbal arrangement was then made between tbe plaintiff and Sorrenson, by which tbe plaintiff agreed to pay bim $250 for tbe premises, less what tbe plaintiff bad paid to Sperry; and if tbe premises should be sold at a higher price than $250, Sorrenson was to have tbe excess also. In September following, tbe defendant, wbo was in no way interested in tbe title, assisted by a number of persons, removed tbe bouse from tbe lot without tbe consent or knowledge of tbe plaintiff. Tbe complaint alleged plaintiff’s ownership of tbe lot, and tbe unlawful act of tbe defendant in forcibly removing tbe bouse, and prayed for damages. Answer, (1) a general denial; and (2), tbe defense mentioned in tbe opinion, *infra.*There was some conflict of evidence as to wbo was in possession of tbe lot when tbe bouse was removed. Defendant offered to prove that tbe bouse was tbe homestead of Sorrenson; but tbe evidence was rejected.

Tbe court charged tbe jury that tbe plaintiff was entitled to recover such a sum as they should find from tbe evidence to be tbe value of tbe bouse. "Verdict for tbe plaintiff; new trial denied; and defendant appealed from a judgment on tbe verdict.

*214
      *Freeman & Hancock,*for appellant:

The evidence fails to show any possession in the plaintiff. If he was in possession of the premises on which the house stood-, he was there as the agent or trustee of Sorrensonj and merely held this land in trust for him. At the time the building was removed, the family of Sorrenson was living in the house, and in possession of the same ; and Sorrenson was there with them at different times. If the lot and house was claimed as a homestead, the agreement between *Seatoff*and Sorrenson was void, even though Sorrenson had only a land contract •. (1.) Because it was not in writing. (2.) Because it required the wife’s consent, evidenced by a proper instrument in writing, executed and acknowledged. Sorrenson could not sell the lot and house without the wife joined in the deed. 18 Wis., 478; chap. 172. Laws of 1867. The court erred, therefore, in excluding evidence that the land was occupied by Sorrenson as a homestead. 2. The deed from Sherry to *Seatoff*would only operate as an equitable mortgagge. • *Seatoff*could only hold it as security for the money advanced to Sherry and Sorrenson *{Braytonv. Jones,*5 Wis., 117); and with Sorrenson in possession, he could not maintain this action.

*Flbridge Smith,*for respondent:

Sorrenson’s contract was forfeited; if he or his wife was in possession, it was only by sufferance. Sorrenson himself could not remove the house, after forfeiture, without paying the remaining purchase money, as against Sherry or his grantee. Much less could Sorrenson’s wife authorize a stranger to remove it. Evidence of possession was introduced by both parties; but it is immaterial who was in possession, as to the rights of the parties in this action, the title being in the respondent. Whatever may be the equitable interests, as between Sorrenson and the respondent, the rights of the parties here are in no way affected by them.

Cole, J.

We do not very well see upon what ground the *215defendant can bave tbe benefit of equities between the plaintiff and Andreas Sorrenson, if any exist. He is a stranger, having no interest in the land or building, and in no way connected with the title. On the other hand, the plaintiff has unquestionably acquired the legal title by purchase from Sherry. Suppose the plaintiff purchased the property subject to the contract between Sherry and Sorrenson, and that the latter still had the right to pay the amount due on the contract and demand a deed. Upon this assumption, Sorrenson himself would only have the right to discharge the contract on his part and insist upon the plaintiff giving a conveyance. But we take it that he would have no right to remove the house from the premises without paying the money due on the contract. Again, suppose the plaintiff and Sorrenson entered into the agreement foreshadowed in one of the offers of testimony made on the part of the defendant, in and by which the plaintiff undertook and agreed to pay Sherry the amount due from Sor-renson, and take the deed, and hold the premises, and .sell them for the benefit of Sorrenson? In this aspect of the case, in the least favorable view for the plaintiff, he would have the interest of a mortgagee in the property, and Sorrenson would have no right to remove the building and diminish the value of the security. But what may be the real equities between the plaintiff and Sorrenson is a question which does not arise in this case.' It is sufficient to say that even if Sorrenson was in possession of the premises, upon the facts disclosed, he would have no right to remove the building. The plaintiff either owned it absolutely, or had the interest of a mortgagee in the property; and in either view he was entitled to recover the value of the house. The defendant admitted in his answer, that at the request of the wife of Sorrenson, who was then in the possession of the premises and occupying the building as a homestead, he, with others, removed the building. This answer, even if sustained by the most conclusive testimony, sets up no defense to the action. For, as already observed, the plaintiff *216Rad at least the interest of a mortgagee, and neither Sorrenson nor his wife had the right to do any act which would diminish the permanent value of -the mortgaged property. In no 'possible view of the case does the defendant show any legal excuse or justification for the removal of the building.

*By the*Court.— The judgment of the circuit court is affirmed.