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The following opinion was filed November 1, 188?:

Cassoday, J.

We are all agreed that the findings of the trial court are sustained by the evidence. This being so, the right of the defendants to the possession of the land in question depends upon the legal effect of the warranty deed from Enoch Enloe and wife to Hodges, and the bond given back by Hodges to Enloe in regard to the possession for a year, and the payment of the purchase price. Such effect is fully stated in the opinion on the former appeal, and need not be here repeated: 64 Wis. 673. Manifestly, it was an absolute purchase, as held by the trial court, and not an equitable mortgage. In construing those papers in that opinion it was said: “ The farm was absolutely sold and conveyed, with the possession reserved ‘ until one year from ’ the date of the deed and bond. This is the only reservation or restriction upon the possession. This being so, at the end of the year the right to the possession followed the legal title, and hence went presumptively to Hodges, and from him to the plaintiff.” Page 675. This rule is applicable now as well as then.

On that appeal, the defendants claimed to be entitled to the possession on the ground that Enoch Enloe had a vend- or’s lien for an unpaid balance of the purchase price. But the question was not considered, much less determined, because it was not within the issues and had never been tried. Assuming that it is now properly presented, and that such ' *349lien survived the death of Enoch Enloe, yet, since it was a mere chose in action, it would necessarily go by succession to his executor or administrator, and not to his heirs or Avidow, as such, which is the attitude of these defendants. This has, in effect, been repeatedly decided by this court. Besides, the mere right to enforce such a lien in equity Avould seem to give no right to the possession of the land in ejectment. But the unanswerable objection to any such claim is the absence of any evidence of an}" such unpaid balance. This disposes of the equitable counterclaims interposed.

True, as now claimed by the defendants, it appears, on the plaintiff’s oavii showing, that Enoch Enloe remained in possession of the land from January 11, 1873, to the time of his death, as tenant of Hodges, under an agreement to pay rent and taxes. Such tenancy, it is said, “ was at least from year to year.” Whether such mere tenancy, on the death of Enoch Enloe, passed to his executors, administrators, or to his heirs at laAV under our statute, is unnecessai'y here to determine. It sufficiently appears from testimony on the part of the defendants that, prior to the commencement of this action, they denied the plaintiff’s right to the possession of the premises or any rent therefor, on the ground that such possession and use belonged to the Avidoiv. This was such a disclaimer of the relation of landlord and tenant as authorized ejectment without further notice. Grubb v. Grubb, 10 Barn. & C. 816; Davies v. Evans, 9 Mees. & W. 48; Phillips v. Rollings, 56 Eng. C. L. 188; Vivian v. Moat, L. R. 16 Ch. Dun 730; Willison v. Watkins, 3 Pet. 43; Peyton v. Stith, 5 Pet. 491.

Error is assigned because the court found the possession of the defendants to be wrongful from February 11, 1884, which included a few months prior to such disclaimer. There can be no question but what they had the rents, issues? and profits arising from the premises during the crop*350ping seasons of 1884, 1885, and 1886, inclusive. On the commencement of this action, the defendants by answer denied any and all title in the plaintiff. For more than three years they have resisted the ejectment on that and other grounds. Such disclaimers are sufficient to estop the-defendants from now reducing the amount of actual damages sustained, upon a ground never pleaded, and merely because a few months of their occupancy -was as tenants, and hence not wrongful. We cannot say from the evidence that the amount of damages found was excessive.

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

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