
    Haight vs. Clifford.
    
      Complaint in Ejectment.
    
    The complaint in ejectment herein alleges that A. is the owner in fee simple of the land described; that in 1874, A. let the premises to B. for five years; that subsequently B. assigned the lease to C., who entered into possession; that C. afterwards assigned the lease to plaintiff; and that plaintiff is entitled to the possession, which defendant unlawfully withholds. Held bad, on demurrer, because, while it needlessly pleads plaintiff’s paper title, it does not plead the estate claimed, as the statute requires. R. S., ch. 141, sec. 4.
    APPEAL from the Circuit Court for Portage County.
    Ejectment. The complaint alleges that one Weston is the owner in fee simple of the land, describing it; that on the 5th of March, 1874, Weston let the premises to one Owens, for five years from April 1, 1874, with privilege of five years more; that on the 15th of April, 1875, Owens duly assigned said lease to the Portage Lumber Company, who entered into possession of the premises and erected thereon a steam shingle-mill; that on the 1st of May, 1876, said Portage Lumber Company duly assigned said lease to the plaintiff; that plaintiff is entitled to the possession of the premises; and that defendant unlawfully withholds the possession thereof from him, to his damage $1000; wherefore plaintiff demands judgment for the possession, and for $1000 damages, etc.
    A demurrer to the complaint as not stating facts sufficient to constitute a cause of action, was sustained; and plaintiff appealed from the order.
    The cause was submitted on the brief of James Freeman and D. Lloyd Jones for the appellant, and that of Barnes c§ Gavanagh, for the respondent.
    Eor the appellant it was argued, that the complaint avers facts showing that plaintiff has an estate for years in the premises ; and that this, with the averment that he is entitled to the possession, is sufficient, under the liberal rule of the code. R. S., oil. 125, sec. 20; 16 Wis., 504; 18 id., 316; 25 id., 618; 36 id., 631. If it be claimed that tbe assignment of tbe lease was as a security, and tbe transaction a mortgage, tbatis matter of defense. Tay. Stats., 1671, §28; 16 Wis., 574.
    Tbe respondent’s counsel cited R. S., cb. 141, sec. 4 (Tay. Stats., 1666, § 5); Barclay v. Yeomans, 27 Wis., 682. Tbe statute requires tbe plaintiff to allege an actual interest in tbe land, and to set out the nature of that interest. Setting up a lease does not set up a leasehold interest; nor would setting up a warranty deed be setting up a fee simple interest. Tbe former are merely evidence of tbe latter; and it is not sufficient to plead tbe evidence of a fact. Bouv. Law Die., “ Lease;” 16 Wis., 307. If tbe lease bad been assigned as a security for money, tbe ’ complaint would be strictly true, but plaintiff would have no interest in tbe land. Murray v. Walker, 31 FT. Y., 399. Again, the delivery or assignment of a lease for years does not vest any estate until entry made by tbe lessee or assignee. 1 Washb. R. P. (3d ed.), 389, 390. If it were otherwise, still the averment that on tbe 1st of May, 1876, tbe lease was assigned to plaintiff, would not, in tbe face of tbe direct requirement of tbe statute, raise tbe presumption that plaintiff bad an estate when tbe suit was commenced. Shaffer v. Whelpley, 37 Wis., 334; 35 id., 34; La Bow v. Arnold, 14 id., 458. Tbe averment that plaintiff is entitled to tbe possession is a mere conclusion of law.
   Ryan, C. J.

Tbe demurrer was properly sustained. Tbe complaint is industriously bad. It pleads tbe appellant’s paper title, always unnecessary and generally improper under tbe statute; and after all fails to plead the estate claimed, which tbe statute expressly requires. La Dow v. Arnold, 14 Wis., 458. Tbe complaint should have followed the statute. Platto v. Jante, 35 Wis., 629.

It pleads evidence, not right. Pleading evidence of tbe right claimed might be regarded as surplusage, and would. not vitiate tbe complaint. Lawe v. Hyde, 39 Wis., 345. But failure to plead tbe right itself is fatal.

By the Oott/rt. — -Tbe order of tbe court below is affirmed.  