1860. MOSHER V. CHAPIN. bearance, which might sustain an agreement on the part of June Term, Chapin to pay a sum beyond legal interest. There certainly would seem to have been something more than mere forbearance. In the case of Neefus vs. Vanderveer and others, 3 Sandf. Ch. R., 268, a party having a large mortgage upon a tract of land, consented to cancel it, and take in its stead a number of small mortgages on corresponding portions of it, for the same aggregate amount, payable at the same times, with the same interest. For doing this he received five hundred dollars, and the court held that it was not usury, inasmuch as there was a consideration entirely separate and distinct from the forbearance. In this case the agreement by Mosher to allow portions of the mortgaged premises to be sold, and to release such portions from the decree, and to take assignments of the smaller mortgages given by the purchasers, would seem to be of a very similar nature. He also agreed to postpone the sale of the property, which was already advertised. In Smith vs. Algar, 20 E. C. L., 452, the plaintiff having a fi. fa. for 60 pounds against the goods of a third party in the defendant's possession, forbore to enforce it, on the defendant's promise to pay him 107 pounds in seven days. Lord TENTERDEN said: "But he had a right to levy 60 pounds, and if, in consideration of his forbearing that, the defendant promised to pay him the larger sum; if the inconvenience of an execution against these goods at the time in question was so great, that the defendant thought proper to buy it off at such an expense-I do not see that the consideration is insufficient for the promise." PARKE, J., said; "There is no reason why the forbearing to execute such a writ should not be a good consideration for a promise, by a third person, to pay double the amount at the end of seven days." No question of usury seems to have been suggested in the case, but the court seems to treat the forbearance to execute the writ, at least as to third persons, as a consideration entirely different from that of forbearance of the debt. If this is a correct view of the case, it would tend to show that the forbearance by Mosher to execute his order of sale might, as to Chapin, be a good consideration for an agreement to pay a specific sum even greater than the legal MOSHER V. CHAPIN. June Term, interest. See, also, Fussel vs. Daniel, 29 E. L. & E., 369 1860. But if it would be a good consideration for a third person, it is somewhat difficult to see why it would not be a good one also for the debtor himself to agree to pay more. And if that were allowed, it is evident that all the evils designed to be prevented by the usury laws, would follow, if, whenever the creditor had obtained his judgment, he might then, in consideration of forbearing to execute it, bargain with the debtor for whatever compensation his necessities might induce him to promise. It has, accordingly, been held that such an agreement was usurious. Hopkins vs. Koonce, 6 Gratt., 387; Siter vs. Sheets, 7 Ind., 132. But, as before remarked, we shall express no opinion as to whether there was in this case, such a consideration as would have supported an independent agreement by Chapin to pay a sum greater than that allowed by law to be taken for interest. The only further point to be noticed is, as to the effect of the written agreement made by Chase to pay twelve per cent. on the balance of the decree. It was said that this bound Chase only, and could not affect the land which Chapin had bought. This would undoubtedly be so except for the peculiar facts of this case. But upon those facts we think Chapin is estopped, in equity, from claiming that an agreement made by Chase, even in his own name only, was not valid and effectual to accomplish the verbal agreement which he had previously made. Chapin told Mosher, when he first came to him, that he was acting to help Chase, and was acting in concert with Chase. When subsequently writ ten to, to put the agreement in such shape as to be binding in law, he replied that Chase would come and arrange it. And Mosher and his attorney had a right, from all this, to assume that Chase was the party beneficially interested, and that for that reason Chapin had sent him as the proper person to carry out the arrangement. When they accordingly made the agreement with him, we think Chapin is estopped from setting up that he was incompetent to make it effectual. They dealt with Chase as competent for that purpose, upon Chapin's statement, and upon his direct reference to Chase, when applied to to act himself. It is then against equity for him now to set up that Chase had no er. The order appealed from is affirmed, with costs. PLATTO VS. CADY. The assignment by a married man of a lease of a lot, and his sale of the dwelling house on the lot, occupied by him as a homestead, are not within the disability imposed upon the husband, by section 24 of chapter 134 of the Revised Statutes of 1858, in respect to the alienation of a homestead without the signature of the wife. APPEAL from the Circuit Court for Milwaukee County. The complaint in this case, which was filed in 1859, alleged that the plaintiff, Platto, had an estate, as tenant for a term of years, in certain premises therein described, which term would expire on the first day of May, 1861; that he was entitled to the possession of said premises; and that the defendant unlawfully withheld the possession thereof from him. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and specified the following objections: "1. It does not state facts showing any right or title in the plaintiff, nor how, nor through whom the title was derived. 2. It does not state who is the plaintiff's landlord, nor that he has any landlord, nor that any person under whom the plaintiff claims ever had title or possession. 3. It does not state that the plaintiff was ever in possession of the premises claimed, or that he was ever tenant of or under any person; nor is any tenancy whatever stated in said complaint." The circuit court over-ruled the demurrer, with leave to The defendant then answered, first, by a denial, of every averment in the complaint, and for a further defense, alleged that on the 13th day of April, 1855, one Herring was in possession of said premises, under a lease which would expire about the first day of May, 1861, and owned and occupied a frame building situated thereon, with appurtenan answer. PLATTO V. CADY. June Term, ces; that Herring was a married man, and with his wife and 1860. family occupied said building and premises as a homestead; that on the day last mentioned the plaintiff obtained from Herring an assignment of said lease, and a bill of sale of the said building and appurtenances, but did not obtain the signature of Herrick's wife to the assignment or the bill of sale; that on the same day the plaintiff leased the said building and appurtenances to Herring for the term of two years from the 1st of May, 1859: that on the 25th day of June, 1859, while Herring was so in possession of said premises, and claiming the same as his homestead, and before any lawful alienation or sale by him of said premises, or of said building and appurtenances, the said Herring and his wife in due form released and quit claimed the said premises, with the building, &c., to the defendant. To this portion of the answer the plaintiff demurred, on the ground that it was insufficient to constitute a defense. The court sustained the demurrer, and ordered that judgment be entered, "that the plaintiff hath an estate as a tenant for a term of years in the premises described in the complaint herein, &c; and is entitled to the possession of the same, and that he recover the same," and also that he recover costs &c., from which judg ment the defendant appealed. The complaint and answer were verified. George W. Lakin, for appellant: 1. The plaintiff's demurrer reaches back to the first error. (Schwab vs. Furniss, 4 Sandf., 704.) The first error is in the complaint, which does not state a cause of action. All that the plaintiff alleges in respect to title is, "that he has an estate as tenant for a term of years," &c. That is not a fact, but a conclusion of law. The commencement of his particular estate should have been shown. 2 Salk., 526; Stephen on PL, pp. 306-308. Leases for years may be made to commence in futuro. Kent's Comm., 56. If the end of the term only is stated, as here, it is open to the inference that it is to commence in futuro. Again, the complaint does not inform the defendant what title he is called upon to combat. If the plaintiff had stated that he was tenant for years—stating the duration of the term, and under whom he claimed, or if he had stated who was entitled to the reversion, it might have been sufficient. 2. The plaintiff's demurrer is directed only to the second defense, and if that were found insufficient, the issue of fact, raised by the complaint and the first defense, still remained to be tried. 3. The second defense is sufficient. It is founded upon the statute relating to the homestead exemption. R. S., chap. 134, secs. 23-31. It brings the premises within that statute, by showing that they were "owned and occupied" by Herring, a married man. For what constitutes ownership? "The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate, without any apparent right." 2 Bl. Comm., 195. If a debtor is in possession of a house and lot, even by such an imperfect title as this, making the same his homestead, his judgment creditor cannot levy upon and sell them, and divest the owner of such title. J. V. V. Platto, respondent, in person: 1. The lease of the land and the buildings thereon are personal property. R. S., chap. 83, § 5; 2 Kent's Comm., 342; Case of Gay, Adm'r, 5 Mass., 419; Doty vs. Gorham, 5 Pick., 487; Marcey vs. Darling, 8 Pick., 283; Wells vs. Banister, 4 Mass., 514. 2. As it is not claimed that the property in question was the separate property of the wife of Herring, the grantor, it must be presumed to have belonged to Herring, as the wife possesses no property in the chattels acquired by the husband. 3. The property in question is not a homestead in fact, or in contemplation of law. The opinion of this court in Phelps vs. Rooney, 9 Wis., 70, absolutely negatives the theory that sec. 24, chap. 134, R. S., applies where the owner of a house does not also own the land whereon the house stands. See also Hoyt vs. Howe, 3 Wis., 752. 4. The statute under which the conveyance to the plaintiff of the property in question is claimed to be invalid, is in derogation of the common law, and must be strictly construed. Waller vs. Harris, 20 Wend., 561; 1 Kent's Comm., 462; Smith vs. Spooner, 3 Pick., 229; Melody vs. Reab, 4 Mass., 473; Fairlee vs. Corinth, 9 Vt., 269; Mallan vs. May, 13 Mees. & Wel., 511; Barker vs. Esty, 19 Vt., 131; Phelps vs. June Term, 1860. PLATTO V. CADY. |