Rausch v. Briefer

¶1{after stating the facts). 1. There are two complete answers to defendant’s right to assert an equitable title: First. Such defense is not available in a suit at law. Harrett v. Kinney, 44 Mich. 457. Second. That question was litigated, and determined against defendant, in the chancery suit. It is therefore res adjudicata.

¶22. Under defendant’s plea and testimony he had made neither a lease nor a contract for a lease. He asserted an agreement or promise for a deed. As soon as he ascertained that it was a lease, he repudiated it, returned it, never occupied the land under it, and never recognized its validity. He asserted a possession hostile *287to the lease and to any title of plaintiff. If he had accepted and recognized the lease, it would have been a bar to his assertion of any other interest in the land. The declaration and the plea put the lease out of the case. Paige v. Willet, 38 N. Y. 31; Van Dyke v. Maguire, 57 N. Y. 431; 1 Am. & Eng. Enc. Law (2d Ed.), p. 719; 11 Am. & Eng. Enc. Law (2d Ed.), p. 447.

¶3The court correctly instructed the jury that:

¶4“His own evidence is to the effect that he wholly repudiated the instrument, and I instruct you, as a matter of law, under the evidence in this case, he could not claim right to possession thereunder at the time of the •commencement of this suit.”

¶5Judgment affirmed.