author: Mr. Justice Scholfield

text:
    Patrick J. Sexton v. The Chicago Storage Company et al.

      Filed at Ottawa June 15, 1889.

    1. Landdobd and tenant—assignment of the term, and a sub-letting, distinguished—rights of the original lessor, as to rent. In case of an assignment of the term by a lessee, the assignee will stand in the shoes of his assignor as respects the covenant of the latter to pay rent, and the property of the assignee is liable to be distrained by the original lessor for the rent due him. But where the lessee merely sub-lets the premises, the sub-lessee is liable only on his own covenants to his landlord.
    2. A leased certain tenements to B from the date of the lease, for the term named, and until the first day of May, 1888. Soon after, B leased the same premises to O, in the same language of his lease, and “for and during the term named,” and until the first day of May, 1888, taking covenant, however, for a different amount of rent, with right to re-enter for non-payment of rent when due, and declare the term ended: Held, that this amounted to an assignment of the term by B to 0, and was not merely a sub-lease, and that 0 became liable to A on B’s covenants to pay rent.
    3. Where a lessee assigns his whole estate in the premises demised, without reserving to himself a reversion therein, a privity of estate is at once created between his assignee and the original lessor, and the latter will have a right of action directly against the assignee on the covenants running with the land, one of which is to pay rent. But if the lessee merely sub-lets the premises, reserving or retaining any reversion, however small, a privity of estate between the sub-lessee and the original landlord is not established, and the latter will have no right of action against the former, there being neither privity of contract nor privity of estate between them.
    4. H the entire leasehold estate is transferred, the instrument will operate as an assignment, notwithstanding that words of demise instead of assignment are used, and notwithstanding the reservation of a rent to the grantor, and a right of re-entry on the non-payment of rent, or the non-performance of the other covenants contained in the instrument. The relation of landlord and tenant as between the original lessor and the assignee of the term does not result from contract, but from privity of estate.
    5. So where the original lessee has divested himself of his entire term, and thus ceased to be in privity of estate with the original landlord, his assignee must necessarily be in privity of estate with the original landlord, and hence is liable as assignee of the term.
    6. The original lessee, however, by the assignment of his lease, is not released from the payment of the rent covenanted by him to be paid, but still remains liable therefor; and his assignee becomes liable on the same covenant because of his privity of estate, and because the covenant to pay rent runs with the land, and the original landlord may sue either the original lessee or the assignee, upon such covenant.
    7. Same—privilege to extend the term—character of the right. A privilege reserved in a lease, permitting the tenant, on notice, to extend the term for one or more years, is not a present demise, but a mere covenant, which may be specifically enforced in chancery, or upon which an action at law may be maintained for its breach.
    8. If a lessee executes a lease for a part of his term, with the privilege of his tenant to extend his lease for the remainder of his lessor’s term, on notice of his election to do so, the reversion will not pass to such sub-lessee until such election is made; and the sub-lessor will still have a reversionary interest, subject, though it maybe, to be thereafter divested by such election; and the lease of the original lessee will not amount to an assignment of his term, but only to a sub-lease.

      9. Same—right of entry for breach of condition subsequent—character of the right. The right to enter for breach of a condition subsequent is not a reversion, nor is it an estate in land, but it is a mere chose in action, and when enforced, the grantor is in by the forfeiture of the condition, and not by the reverter. This rule is not changed by section 14 of our statute relating to landlord and tenant.
    10. Same—clause against assignment or sub-letting—who may avail of it. A covenant or clause in a lease that neither the lessee nor his heirs, etc., will underlet any part of the demised premises, or assign the lease, is for the benefit of the lessor alone. He may waive it if he will, and if he does not choose to set it up, no one else can.
    11. Same—estoppel to collect rent—by garnishment of the assignee of the term. A landlord, by bringing suit by attachment against his lessee for rent due, and garnisheeing an assignee of his lessee for money due such original lessee, will not be estopped from enforcing the liability of the assignee to pay the rent, where no judgment is taken against the garnishee for rent due from him to his assignor.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Patrick J. Sexton executed two leases to Frank F. Cole, the first hearing date March 6,1885, and demising the four upper floors of the building situated on the north-west corner of VanBuren street and Fourth avenue, in Chicago, with right of way, etc.; and the second bearing date May 1,1885, demising the basement of the same building. Both terms are expressed to be “for, during and until the first day of May, 1888.” A stipulated rent is covenanted to be paid by the lessee to the lessor, in monthly installments, and it is also covenanted that neither the second party, nor his heirs, etc., will underlet said premises, or any part thereof, or assign this lease, without the written assent of the said party of the first part had and obtained thereto. It is covenanted that if the rent, or any part thereof, shall be behind or unpaid on the day of payment, or if default shall be made in any of the covenants, etc., to be kept by the second party, his heirs, executors and administrators, or his assigns,—should said premises be underlet, as provided for in the leases,—it shall be lawful for said party of the first part, at his election, the said premises again to repossess; and it shall be the duty of the said party of the second part, and also •of his assigns, in case the leases are assigned, or in case said premises be sub-let, as aforesaid, to pay the said rent as the •same shall fall due from time to time, as above, to the said party of the first part; and there are also the usual covenants by the lessee and his assigns, etc., for a lien on the property, :and for the surrender of the possession of the premises immediately after the determination of the term, or if the term be declared ended, and for the forcible taking of possession, or confession of judgment if guilty of forcible detainer, releasing errors, etc,, for re-letting by the lessee, etc., in case of default in paying rent, etc., and that “all the covenants and agreements therein contained shall extend to and be obligatory upon *" * * the heirs, executors and administrators of said party of the second party, and also on his assigns, should the leases be assigned, or should said premises be underlet, as ■aforesaid.”
    On the 9th of May, 1885, Frank F. Cole executed a lease, demising the premises thus demised to him, to the Chicago Storage Company, from that date “for and during and until the first day of May, 1888.” There are covenants in this instrument for the payment of rent by the storage company to ■Cole, but the amounts are less for the first year or so, and larger afterwards, than the amount covenanted to be paid by Cole to Sexton. There are also further covenants therein, that if the rent shall be unpaid when due, or if default shall be made in any of the other covenants of the storage company, Cole may declare the term ended, and re-enter into the premises, etc.; and that the storage company will surrender possession to Cole immediately upon the determination of said term, or whenever Cole shall elect to declare the term ended. The storage company entered into possession under this instrument, and retained it for a period of about ten months, when it was dispossessed by Sexton, because of the non-payment of rent due Sexton by the terms of the leases executed by him to Frank F. Cole.
    The Chicago Storage Company was incorporated by virtue' of a license issued by the Secretary of State on the 21st of.' May, 1882. The stockholders are Charles N. Chipman, Alfred Wilford, James B. Craney, John C. Magee, Charles Gv Barth, W. B. Parks, David Cole, and Kenneth B. Smoot. The evidence shows that the storage company has never transacted any business other than that of storage, and that only during the time it occupied the premises of Sexton under its lease; from Frank F. Cole; that but little, if any, of its capital stock-has ever been paid into its treasury; that it owns no real estate, and that its personal estate has been seized by Sexton for rent, and that it is of less value than the amount due him; on his lease to Frank F. Cole.
    Sexton commenced proceedings in the Superior Court of Cook county, by attachment, against Frank F. Cole, for rent due on the lease to Cole, on the 23d of October, 1885, and had the Chicago Storage Company garnisheed as a debtor of Cole. Answer was filed, on behalf of the company, to the interrogatories propounded by Sexton, claiming that it, as sub-lessee of Cole, was, by reason of Cole’s refusal to pay his rent to Sexton, imperiled in its right to continue in possession, and! consequently damaged to an amount in excess of the rent due from it to Cole. Another suit by attachment was commenced by the same party, against the same party, in the same court, on the 1st of March, 1886, for rent accruing after the commencement of the first suit by attachment, and the same garnishee proceedings were thereon had as in the first suit. Both these suits seem to be still pending. On the 1st of March, 1886, Sexton also caused a judgment of the Superior Court of Cook county to be entered against Frank F. Cole, for a. forcible detainer of the premises leased to him, by virtue of the power of attorney authorizing a confession of such judgment, which is contained in the lease, and Sexton was soon thereafter placed in possession of the leased premises by virtue of a writ of possession issued upon such judgment.
    On the 23d of December, 1886, Sexton filed his bill in chancery, in the Superior Court of Cook county, against the Chicago Storage Company, and Charles N. Chipman, Alfred Wilford, James B. Craney, John C. Magee, Charles G. Barth, W. R Parks, David Cole and Kenneth R. Smoot, as stockholders of that company, alleging, among other things, that the lease of Frank F. Cole to the storage company was an assignment of his term, and that consequently that company is liable for the rent due on the lease from Sexton to Cole, and that the storage company has ceased to do business, leaving debts unpaid, and praying that an account be taken of the amount due from the storage company, as assignee of the term of Frank F. Cole, to Sexton, and that the stockholders be decreed to pay such sum as shall be sufficient to pay the same. Answers were filed and evidence was heard on the issues; and the court, on final hearing, decreed that the complainant’s bill be dismissed, and that decree, on writ of error from the Appellate Court for the First District, was affirmed. This appeal is from that judgment of affirmance.
    Mr. Alexander S. Bradley, for the appellants
    The transfer from Frank F. Cole to the storage company was, in legal effect, as between appellant and said company, an assignment of the term; and it was indebted to appellant for the rent by privity of estate. 1 Taylor on Landlord and Tenant, sec. 16; Wood on Landlord and Tenant, p. 542, sec. 330, and p. 130, sec. 93, and note; Jackson & Gross on Landlord and Tenant, 536; Kidder v. Riley, 79 N. C. 357; Lloyd v. Cozzens, 2 Ashen. 131; Woodfall on Landlord and Tenant, 204; Adams v. Beach, 1 Phil. 178; Webster v. Nichols, 104 Ill. 172; Babcock v. Scoville, 56 id. 461.

      The right to forfeit, reserved by appellant in his lease, was waived by him. The acceptance of rent from the company was a waiver. Webster v. Nichols, 104 Ill. 160; Watson v. Fletcher, 49 id. 498; Field v. Herrick, 101 id. 110.
    Appellant is not estopped to claim that the company owes him. The covenant to pay rent in the event of a tenant’s alienation, affords the landlord a double claim for the payment of his rent. Taylor on Landlord and Tenant, secs. 371, 436; Woodfall on Landlord and Tenant, 207; Wood on Landlord and Tenant, 847; Sutliff v. Atwood, 15 Ohio St. 194.
    Acceptance of rent from an assignee of the lessee on account of the lessee does not discharge the lessee. Field v. Herrick, 101 Ill. 116 ; Stein v. Jones, 18 Bradw. 545; Harris v. Heackman, 62, Iowa, 411; Taylor v. Debus, 31 Ohio St. 468.
    Mr. John N. Jewett & Jewett Bros., also for the appellant.
    Mr. Kenneth B. Shoot, and Messrs. Monk & Elliott, for the appellees:
    An under-tenant is not liable upon his lessor’s covenants to pay rent, for the want of any privity of estate. (Quackenboss v. Clark, 12 Wend. 555; Harvey v. McGrew, 44 Texas, 412; Jennings v. Alexander, 1 Hilt. 154; Halfud v. Hatch, 1 Doug. 183.) Nor for use and occupation. Bancroft v. Wardwell, 13 Johns. 488; Hall v. Southmayd, 15 Barb. 32; Krider v. Ramsey, 79 N. C. 354; Merrill v. Bulloch, 105 Mass. 486; Way v. Holton, 46 Vt. 184.
    A lessee can recover from his assignee only when he has himself paid the rent to the lessor. Farrington v. Kimball, 126 Mass. 313.
    The lessee becomes a surety to the lessor for the assignee, who, as between himself and the lessee, is the principal debtor, and bound, whilst he is assignee, to pay the rent and perform the covenants running with the estate; and the lessee has thereby, after paying the debt or discharging the obligation to which he is liable, his remedy over against the assignee, the principal debtor. Farrington v. Kimball, 126 Mass. 313, and cases cited; Burnett v. Lynch, 5 B. & C. 589; Humble v. Langston, 7 M. & W. 517; Moule v. Garrett, L. R. 5 Ex. 132; L. R. 7 Ex. 101.
    Assuming a waiver by complainant of the condition against the assignment, the transfer from the original lessee to the corporation defendant was, in legal effect as well as in form, a sub-lease, and not an assignment.
    The right of re-entry for condition broken, reserved by the sub-lease, and the covenant to surrender to the sub-lessor at the expiration of the term, by forfeiture or otherwise, left in the sub-lessor a contingent reversionary interest sufficient to support a sub-lease, and to take from the instrument the character of an assignment. Piggot v. Mason, 1 Paige, 412; Post v. Kearney, 2 Comst. 394; Keteltas v. Coleman, 2 E. D. Smith, 408; Martin v. O’Connor, 43 Barb. 514; Collins v. Hasbrouck, 56 N. Y. 157; Ganson v. Tift, 71 id. 48; McNeill v. Kendall, 128 Mass. 245; Dunlap v. Bullard, 131 id. 161; Collamer v. Kelley, 12 Iowa, 319; United States v. Hickey, 17 Wall. 9; Taylor on Landlord and Tenant, (8th ed.) sec. 16; 1 Washburn on Beal Prop. (5th ed.) 543, 544.
    The condition in the original lease forbidding assignment was never waived by Sexton, and hence the company never became liable a,s assignee. Bliss v. Gardner, 2 Bradw. 422; Wadham v. Marlowe, 8 East, 314.
    Complainant is estopped by his conduct to assert that the company ever held as assignee. Bigelow on Estoppel, (4th ed.) 642-655; Durando v. Lyman, 2 Sandf. 597.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The evidence sufficiently proves that the Chicago Storage Company has “ceased doing business.” This is not contested by counsel for appellees, though they seek to avoid its effect by the circumstance, which they claim to be proved, that such failure is solely because of the seizure and appropriation of its property for the payment of rent due from Frank F. Cole alone, to appellant. It is therefore manifest, that in determining whether the corporation has left debts unpaid, so as to bring the case within section 25, chapter 66, of the Revised Statutes of 1874, as amended by the act of May 22, 1877, in relation to corporations, (Laws of 1877, p. 66,) the first and most important question is whether the storage company is an assignee of the term of Frank F. Cole, or only a sub-lessee under him, for if it is an assignee of the term of Frank F. Cole, it stands in his shoes as respects his covenant to pay rent, and its property is liable to be seized and appropriated to the payment of the rent, by distress, as was done. If, however, it is but a sub-lessee under Frank F. Cole, it is liable only on its covenants to him.

The leases to Frank F. Cole are “for and during” the terms named, “and until the 1st day of May, 1888.” The lease executed by Frank F. Cole to the Chicago Storage Company is of precisely the same premises included by the leases to him, and it is in the identical language of those leases, “for and during” the term named, “and until the 1st day of May, 1888,” so that the terms all end at the same instant of time. No space of time, however minute, therefore can, by any possibility, remain after the term of the storage company has ended, before the expiration of the terms of Cole, in which he could enter upon or accept a surrender of the premises.

The general principle, as held by all the authorities, is, that where the lessee assigns his whole estate, without reserving to himself a reversion therein, a privity of estate is at once created between his assignee and the original lessor, and the latter then has a right of action directly against the assignee . on the covenants running with the land, one of which is that to pay rent; but if the lessee sub-lets the premises, reserving or retaining any reversion, however small, the privity of estate ; between the sub-lessee and the original landlord is not established, and the latter has no right of action against the former, there being neither privity of contract nor privity of estate between them. The chief difficulty has been in determining what constitutes such reservation of a reversion. The more .recent English decisions, and all of the text books treating of the question which have been accessible to us, hold that where ■all of the lessee’s estate is transferred, the instrument will operate as an assignment, notwithstanding that words of demise instead of assignment are used, and notwithstanding the reservation of a rent to the grantor, and a right of re-entry on the non-payment of rent or the non-performance of the other covenants contained in it. 1 Platt on Leases, pp. 1-9,102; "Woodfall on Landlord and Tenant, (7th ed.) 211; Wood on Landlord and Tenant, p. 131, sec. 93; Taylor on Landlord and Tenant, (8th ed.) 16, note; 5 Bacon’s Abridgment, title "’‘Leases,” sec. 3; 2 Preston on Covenants, 124, 125; Boardman v. Wilson, L. R. (4 C. P.) 57; Doe v. Bateman, 2 B. & A. 168; Wollaston v. Hakewell, 3 Scott, (N. C.) 616. Undoubtedly many cases may be found wherein the lessee has granted to another party his entire term, retaining no reversionary -interest in himself, and it has been held the relation as between the parties was that of landlord and tenant,—or, perhaps more correctly, lessee and sub-lessee,—because such was ■clearly the intention of the parties; but this was the result of ■contract, only, and not conclusive upon the original landlord, .since he was not a party to it. The relations of landlord and as■signee of a term, however, it has been seen, do not result from ■contract, but from privity of estate, and, therefore, -when the ■original lessee has divested himself of his entire term, and thus -ceased to be in privity of estate with the original landlord, the person to whom he has transferred that entire term must nec■assarily be in privity of estate with his original landlord, and hence liable as assignee of the term. See Wood on Landlord ■and Tenant, p. 132, and authorities cited in note 1; Van Renseller v. Hays, 19 N. Y. 601; Pluck v. Diggs et al. 5 Bligh, (N. S.) 31; Thorne v. Woolcome, 5 B. & A. 586; Ind. Manf. Co. v. C. C. C. I. Ry. Co. 45 Ind. 281; Smiley v. Fare Winkle, 6 Cal. 605; Blumenberg v. Myers, 32 id. 93; Schilling v. Holmes, 23 id. 230.

Counsel for appellees contend, and the courts below ruled accordingly, that the reservation of a new and different rent, or the reservation to the lessor of the right to declare the lease-void for the non-performance of its covenants, and to re-enter for such breach, or at the end of the term, coupled with the covenant of the lessee to surrender at the end of the term or upon forfeiture of the term for breach of covenant, make the letting by the lessee a sub-letting, and not an assignment of' the term, notwithstanding the lessee has retained in himself no part of the.term,—and they rely upon Collins v. Hasbrouck, 56 N. Y. 157, Ganson v. Tifft, 71 id. 48, Neil v. Kendall, 128 Mass. 245, and Dunlap v. Bullard, 131 id. 161, as sustaining, this contention.

There is general language in Collins v. Hasbrouck quite as broad as claimed. But no question therein presented called for its use, and its meaning ought to be limited by the facts-to which it was applied. There, the first original lease was-for the term of ten years, from the 1st of April, 1864; the-second was for the term of nine years, from the 1st of April, 1865. Thus, both expired April 1,1874. The sub-lease was for the term of two years and seven months, from the 1st of' September, 1867,—that is to say, until the 1st of April, 1870,, —with the privilege, however, to the lessee to extend the term four years, or until April 1, 1874, by giving two months’ notice, etc. The plaintiffs claimed that the leases were forfeited by the sub-letting, and the court so held. No distinction was-taken, in the opinion of the court, between an absolute demise-until the end of the term and a mere privilege to have the demise extended four years, which was until the end of the term.. We have held that a similar clause in a lease is not a present demise, but a mere covenant, which may be specifically enforced in chancery, or upon which an action at law may be maintained for a breach of covenant. (Hunter v. Silvers, 15 Ill. 174; Sutherland v. Goodnow, 108 id. 528.) And it would seem quite evident, that in no view could the reversion have passed until after the grantee elected to have the term for four years longer, and so, when the lease was executed, there was still a. reversionary interest in the sub-lessor, of four years, subject, though it may have been, to be thereafter divested by the election of the sub-lessee.

In Ganson v. Tifft, the sub-lease provided that at the expiration of the term, or other sooner determination of the demise, the lessee should surrender the demised premises to the lessor, and the court said: “This constitutes a sub-lease of the premises, and not an assignment of the term.”

In Stewart v. Long Island Railroad Co. 102 N. Y. 601, (55 Am. Rep. 844,) there was a demise by the lessee to the Long Island Railroad Company for a term longer than that held by the lessee. There was also a different rent to be paid than that provided to be paid by the original lease, and there was a reservation of the right to re-enter for non-payment of rent, etc. It was. held, that as to the original landlord this amounted to an assignment of the lease, and that its character was not destroyed by the reservation therein of a new rent to the assignor, with a power of re-entering for non-payment of rent, or by its assumption of the character of a sub-lease. The court, after laying down the rule substantially as we have heretofore stated it to be recognized by the text-books and recent English decisions, said: “The effect, therefore, of a demise, by a lessee, for a period equal to or exceeding his whole term, is to divest him of any reversionary right, and render his lessee liable, as assignee, to the original lessor; but, at the same time, the relation of landlord and tenant is created between the parties to’ the second demise, if they so intended,”—citing Taylor on Landlord and Tenant, (7th ed.) 109, note s, 16, n. 5; 1 Washburn on Real Estate, (4th ed.) 515, n. 6; Adams v. Beach, 1 Phil. 99; Ind., etc., Railroad Co. v. Cleveland, etc., Railroad Co. 45 Ind. 281; Lee v. Payn, 4 Mich. 106; Lloyd v. Cosens, 1 Ashm. 138; Wood on Landlord and Tenant, (Bank’s ed.) 347,—and then adding: “These rules are fully recognized in this State. Prescott v. Deforest, 16 Johns. 159; Bedford v. Terhune, 30 N. Y. 457; Davis v. Morris, 36 id. 569; Woodhull v. Rosenthal, 382, 391, 392.”

In speaking of the ruling in Collins v. Hasbrouck, supra, after stating the facts, the court said: “In the opinion, the question is discussed whether the sub-lease amounted to an assignment of the term of the original lease, or a mere subletting or re-letting of part of the demised premises. This question, in view of the result reached on the question of waiver, ceased to be controlling; but, in discussing it, the learned judge delivering the opinion made some remarks touching the effect of reserving a new rent in the sub-lease, and of reserving to the original lessee a right of re-entry for a breach of condition by his lessee, which have given rise to some confusion. The features of the instrument which are above referred to would be proper subjects of consideration for the purpose of determining whether the relation of landlord and .tenant was created between the original lessee and his lessor, and bore upon the question then before the court, viz., whether the second lease was a sub-letting or re-letting of part of the demised premises, which constituted a breach of the covenant not to sub-let or re-let. But the question of privity of estate between the original lessor and the lessee of- his lessee, was not in the case. The determination of the question depends upon whether the whole of the term of the original lessee became vested in his lessee, and the circumstances that the second lease reserves a different rent or a right to entry for breach of ■condition, are immaterial.” And, after quoting many authorities to sustain that position, the opinion proceeds: “The, ■cases which hold that where a lessee sub-leases the demised' premises for the whole of his term, but his lessee covenants to surrender to him at the end of the term, the sub-lease does not operate as an assignment, proceed upon the theory that by reason of this covenant to surrender, some fragment of the term remains in the original lessor [lessee.] In most of the cases, and in the earlier cases in which this doctrine was broached, the language of the covenant was, that the sub-lessee would surrender the demised premises on the last day of the term.”

It is true that in this case, as has been before stated, the lessee demised for a number of years beyond the term for which he held; but it is impossible that, upon principle, there can be any difference between a demise of an entire term, which can leave no possible space of time remaining in the lessor, and a demise for any additional time beyond the term, for since no one can demise what he does not have, all that can pass by the demise, in the latter instance, is the entire term of the lessor. If, here, the demise of Frank F. Cole vests his entire interest in the property, as it professes to do, “for and during” the remainder of his term, “and until the 1st day of May, 1888,” it can not be that any portion, however short in duration, of the term granted him by the leases of appellant, remained in him, because they are limited by the same words precisely,—namely, “for and during” the term, “and until the 1st day of May, 1888.”

In McNeil v. Kendall, supra, there were easements reserved from the effect of the lease. In Bullard v. Dunlap, supra, however, the facts are analogous in principle to those here involved, and it was held that the demise of the entire term of the lessee was a sub-lease, and not an assignment, because of the right reserved in the lease for the lessor to re-enter and resume possession for a breach of the covenants. But this is held upon the ground, that under the decisions of that court the right to re-enter and forfeit the lease is a contingent reversionary estate in the property, the court having previously held, in Austin v. Cambridgeport Parish, 21 Pick. 215, Brattle Square Church v. Grant, 3 Gray, 142, that where an estate is conveyed, to be held by the grantee upon a condition subsequent, there is left in the grantor a contingent reversionary interest, which is an estate capable of devise. It has been suggested that these decisions are predicated upon a local statute; (see Tiedeman on Eeal Prop, note 1 to sec. 277, and note 1, on p. 904, 6 Am. & Eng. Ency. of Law;) but whether this be true or not, the decisions are plainly contrary to the principles of the common law.

The right to enter for breach of condition subsequent could not be alienated, as it could have been had it been an estate, and Coke says: “The reason hereof is for avoiding of maintenance, suppression of right and stirring up of suits, and therefore nothing in action entrie or re-entrie can be granted over.” See, also, 1 Comyn’s Digest, title “Assignment,” chap. 2, p. 688; 3 id. title “Condition,” (O. 1,) p. 129; 4 Kent’s Com. (8th ed.) 126, *123; 1 Preston on Estates,. 20, *21; Shepherd’s Touchstone, 117, *121.

It is said in 1 Washburn on Eeal Prop. (2d ed.) 474, *451: “Such a right” (i. e., to enter for breach of condition subsequent,) “is not a reversion, nor is it an estate in land. It is a mere chose in action, and, when enforced, the grantor is in by the forfeiture of the condition, and not by the reverter.” To like effect is, also, Tiedeman on Eeal Prop. sec. 277; 6 Am. & Eng. Ency. of Law, p. 903; Taylor on Landlord and Tenant, (8th ed.) sec. 293; Southard v. C. R. R. Co. 26 N. J. L. (2 Dutch.) 21; Webster v. Cooper, 14 How. 501; Schulenberg v. Harman, 21 Wall. 63; Nicoll v. N. Y. and E. Railroad Co. 12 N. Y. (2 Kern.) 121.

It is true, that by section 14 of our statute in relation to landlord and tenant, (Eev. Stat. 1874, p. 659,) “the grantees of any demised lands, tenements, rents or other hereditaments, or of the reversion thereof, the assignee of the lessor of any demise, • and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies, by entry, action or otherwise, for the non-performance of any agreement in the lease, or for the recovery of any rent, or for the doing of any waste, or other cause of forfeiture, as their grantor or lessor might have had if such reversion had remained in such lessor or grantor,” But this does not make what was before but a chose in action, an estate. The right to enter for breach of covenant is still but a remedy for enforcing performance of a contract, which may be defeated by tender. Taylor on Landlord and Tenant (8th ed.) 302. As is said by the court in DePeyster v. Michael, 6 N. Y. (2 Seld.) 507, in speaking of the effect of a like statute of New York: “The statute only authorized the transfer of the right, and did not convert it into a reversionary interest, nor into any other estate.” See, also, Nicoll v. N. Y. and E. Railroad Co. 12 N. Y. (2 Seld.) 139.

It follows that, in our opinion, the rule assumed to be followed in Collins v. Hasbrouck, Ganson v. Tifft, and Dunlap v. Bullard, supra, is not in conformity with the common law, and that it can not, therefore, be applied here.

The objection that the written assent of appellant was not obtained to the assignment, can not be urged by appellees. The clause in the leases, in that respect, is for the benefit of, and can be set up by, appellant alone. He may waive it if he will, and if he does not choose to set it up no one else can, Webster et al. v. Nichols et al. 104 Ill. 160; Willoughby et al. v. Lawrence et al. 116 id. 11; Arnsby v. Woodward, 6 B. & C. 519; Rale v. Farrar, 6 M. & S. 121.

But counsel insist that appellant is estopped by his conduct to now allege that the instrument executed by Frank F. Cole is an assignment. We have carefully considered the evidence bearing upon this question, and we are unable to concur in this view. Appellant did refuse to acquiesce in the construction placed by appellees upon the lease of Frank F. Cole, and to settle with them upon that basis. He refused to release Frank F. Cole and accept the storage company alone, and he refused to accept the amount of rent which the storage company obligated itself to pay Frank F. Cole, as a satisfaction of Frank F. Cole’s covenant to pay rent to him, but he was all the time willing that the storage company should remain in possession, provided the rent due him by his lease to Frank F. Cole was paid to him. He knew the terms of the lease of Frank F. Cole to the storage company, and he afterwards received rent from it, and permitted it to remain in possession. The lessee continues, notwithstanding the assignment, liable upon his express covenant to pay rent, and the assignee becomes liable upon the same covenant by reason of his privity of estate, because that covenant runs with the land. Taylor on Landlord and Tenant (8th ed.) sec. 438; 2 Platt on Leases, 356; Walton v. Cranley, 14 Wend. 63; Bailey v. Wells, 8 Wis. 141.

Since appellant might sue Cole on his express covenant to pay rent, and, he having fled the State, take out an attachment in aid thereof, we perceive no reason why he might not, at the same time, take garnishee process against the storage company and recover any debt which it owed him. There is certainly nothing in this inconsistent with his ultimately enforcing his liability against that company as assignee of Cole’s term. It is not shown that the storage company has been, by anything done or said by appellant, induced to do, to its prejudice, anything that it would not otherwise have done. No judgment has been recovered against it, as garnishee of Frank F. Cole, for rent due from it to Frank F. Cole, nor does it appear otherwise to have been compelled to pay money or incur liability by reason of any act or word of appellant proceeding upon the recognition of its being liable to Frank F. Cole, as sub-lessee, only.

For the reasons given, the decree of the Superior Court and the judgment of the Appellate Court are reversed, and the cause.is remanded to the Superior Court for further proceedings consistent with this opinion.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Shope

license: Public Domain

text:
    The Chicago and Alton Railroad Company v. Albert Adler, Admr.

      Filed at Ottawa June 15, 1889.

    1. Negligence—care required—to avoid injury—ordinary care. In an action to recover for a personal injury from negligence of the defendant, resulting in death, the burden, in the first instance, is upon the plaintiff to show that his intestate was in the exercise of ordinary care for his personal safety,—that is, the facts and circumstances proved must show that he was in the exercise of such care.
    2. What is ordinary care is a relative question, and is to be determined from a consideration of the facts and circumstances surrounding the party required to act. It is that care which a reasonably prudent and cautious man would take to avoid injury under like circumstances. It is to be determined as a question of fact.
    3. Same—care at street crossings. Whether a person killed at a public street crossing while passing over a railroad track in a buggy, was bound to do more than look for the flagman and observe the absence of any signal of danger in order to have been in the exercise of ordinary care, especially when the view is obstructed, is a question of fact. The flagman’s duty is to know of the approach of trains, and to give timely warning to persons attempting to cross the railroad track, and the public have a right to rely upon a reasonable performance of that duty.

      á. While the failure of a person attempting to cross a railway track to pause and look for approaching trains may be negligence, as a matter of fact, in a particular case, yet it is manifest that it must at last depend upon the circumstances shown; and the jury must, in the first instance, say, as a matter of fact, whether it was necessary to the exercise of ordinary care.
    5. Same—negligence as a question of fact. An instruction telling the jury that if the deceased was warned or notified of the approach of a train at a street crossing, then, as a matter of law, certain acts performed or omitted to be performed by him constituted a want of ordinary care, is properly refused. Whether the deceased should have waited for the approaching train to pass before attempting to cross the track, is a question of fact, to be determined in view of all the attendant circumstances.
    6. Instbuotion—should he based on the evidence. An instruction based upon an assumed fact which the evidence fails to show, or does not even tend to prove, should be refused.

      7. Practice—directing what the verclict shall be. Where the evidence given at the trial, with all legitimate inferences that may be legally ■and justifiably drawn therefrom, is insufficient to support a verdict for the plaintiff, so that if such a verdict be returned it must be set aside, the court is not bound to submit the case to a jury, but may and should direct a verdict for the defendant.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. George W. Stipp, Judge, presiding.
    Albert Adler, administrator of William Beuck, deceased, brought this action in the Will circuit court, against the Chicago and Alton Eailroad Company, to recover damages for the death of the deceased, charged to have been caused by the negligence of the company. The injury of which Beuck died was received at a public crossing in the city of Joliet. Deceased was riding in a top buggy drawn by a single horse, and was passing, at a gentle trot, westward on Fourth avenue. This avenue, extending east and west, is intersected by Eastern avenue, running north-east and south-west at an angle of about forty-five degrees. Four or five tracks of appellant’s railroad were laid along Eastern avenue. On the north side of Fourth avenue, and close to the line of Eastern avenue, stood first a scale-house, then a warehouse, and, a little north and east of the latter, a residence. The deceased approached the crossing from the east, the residence, warehouse and scale-house being upon his right, and so situated, as portions of the evidence tended to show, as to cut off a view of approaching trains from the north along the tracks on Eastern avenue. There is evidence also tending to establish the fact, that on the track on the eastern side of Eastern avenue, and extending northwardly from the crossing of Fourth avenue, stood several long box-cars, belonging to a circus company, in such position as to obstruct the view of approaching trains from the north on Eastern avenue, of persons approaching the crossing from the east on Fourth avenue in proximity to the crossing. It also appears that many persons were in the vicinity, and using this crossing, about the time of the accident; that the deceased •■approached the crossing, his horse being in a gentle trot, and was struck by a south bound train, while on the crossing, and instantly killed. There is no evidence showing that the de-ceased stopped, or attempted to do so, until the crossing was reached, or at any point where the collision could have been avoided. There is a sharp conflict in the evidence as to whether •a flagman was on duty at that crossing at the time of the collision, several persons testifying that they looked for the flagman in approaching the crossing, and that no flagman was there. On the other hand, it is shown by the flagman and •others, that he was at about the center of the crossing, and attempted, by waving his flag, and otherwise, to arrest the attention of the deceased, and give notice of the danger before he reached the street intersection. It was conceded that a flagman was ordinarily stationed at this crossing, and had been for a considerable time before this occurrence, and it also appears that the deceased had, for many years, lived in the city, engaged in the butcher business. There is also a sharp conflict in the evidence as to whether any signal of the approach ■of the train was given, by the ringing of a bell or sounding the whistle. Verdict and judgment in favor of plaintiff for $2400, which, upon appeal to the Appellate Court, was affirmed. The railroad company prosecutes this further appeal.
    Messrs. Brown & Kirby, for the appellant:
    The court should have instructed the jury to find for the defendant. Simmons v. Railroad, Co. 110 Ill. 340.
    It is essential in these cases for the plaintiff to prove that he was in the exercise of ordinary care to” avoid injury, and the absence of such proof, or facts from which it could be inferred by the jury, is fatal to the cause of the plaintiff, upon whom the burden of proof rests as to that fact. Railroad Co. v. Martin, 115 Ill. 370.

      In cases where danger is reasonably to be apprehended,, proof of positive or special care must be made. (Railroad Co. v. Olson, 12 Bradw. 215.) There being a total absence of any proof of this essential element to a cause of action, the case should not have been submitted to the jury.
    The second of appellant’s instructions should have been" given, as there was evidence upon which it was based, and it in no way invaded the province of the jury, and it asserted a correct rule of law. Railroad Co. v. Dimick, 96 Ill. 42; Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railroad Co. 114 id. 615; Railroad Co. v. Damerell, 81 Ill. 450.
    On approaching a railroad a traveler must use his eyes and ears, and must avoid danger if he can, notwithstanding the-negligence of the company. Henze v. Railroad Co. 71 Mo. 636; Purl v. Railroad Co. 72 id. 168; Railroad Co. v. Hatch, 79 Ill. 137; Pennsylvania Co. v. Rudel, 100 id. 603.
    The conclusion from all the cases is, that if one goes upon a track without taking the necessary precautions to ascertain whether there is an approaching train or not, he is guilty of gross negligence, and he can not recover. Railroad Co. v. Heileman, 49 Pa. St. 60; Railroad Co. v. Beale, 73 id. 504; 1 Borer on Railroads, chap. 17, sec. 7, p. 535.
    The burden of proof in this case rested upon the plaintiff to prove, not only that defendant omitted to sound a whistle or ring a bell, but also to show that he himself was in the exercise of care and diligence at the time of the accident. Railroad Co. v. Damerell, 81 Ill. 454, and eases there cited.
    Messrs. Haley & O’Donnell, for the appellee:
    Whether or not a party is guilty of negligence in not looking-out for an approaching train, is a question of fact, for the jury; and where there is evidence tending to establish the facts relied on for a recovery, the verdict must stand. The question of negligence is a question of fact, for the jury. Railway Co. v. O'Conner, 115 Ill. 254; Railway Co. v. Carey, id. 115.

      Where there is evidence tending to show that a crossing is of a dangerous character in a populous place, and that the injury was caused by the rapid running of a train therein, a verdict for plaintiff will not be disturbed. Railroad Co. v. Payne, 59 Ill. 534.
    The persons in charge of a train are presumed to be cognizant of the character of a crossing, and that persons are liable at all times to be in the act of passing. Railroad Co. v. Stables 62 Ill. 313.
    Where a railroad company is not restricted by law to any rate of speed, unusual speed at crossings where men or animals are generally exposed to danger, may be considered with other matters, as, a failure to give signals, etc., to determine the want of proper care. 2 Thompson on Negligence, 418, note 9.
    A railroad company should not permit obstructions upon its right of way, near a crossing, which will prevent the public from observing the approach of trains. Railroad Co. v. Hillmer, 72 Ill. 235.
   Mr. Chief Justice Shope

delivered the opinion of the Court;

The first ground for reversal insisted upon is, “the court erred in refusing to give the first, second and third instructions for defendant.” The first instruction referred to is as follows:

“The jury is instructed, that under the law as applied to the facts of this case, as developed by a consideration of all the evidence, the plaintiff is not entitled to recover, and the jury will so find.”

The rule is, that where the evidence given at the trial, with all legitimate inferences that may legally and justifiably be drawn therefrom, is insufficient to support a verdict for the plaintiff, so that if such a verdict be returned it must be set aside, the court is not bound to submit the case to a jury, but may and should, in such case, direct a verdict for the defendant. Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340.

To determine the question presented by the refusal of the instruction quoted, some slight consideration of the evidence will be necessary. It is said by counsel for appellant, that the grounds rendering it proper to be given were, that there was no evidence that the deceased was in the exercise of ordinary care to'prevent the injury; and, on the contrary, it is said the evidence shows that he was grossly negligent. It is to be conceded that the burden, in the first instance, is upon the plaintiff to show that his decedent was in the exercise of ordinary care for his personal safety,—that is, the facts and circumstances proved must show that he was in the exercise of such care. (Calumet Iron and Steel Co. v. Martin, 115 Ill. 373.) What is ordinary care is always a relative question, and is to be determined from a consideration of the facts and circumstances surrounding the party required to act. It was said in Chicago, St. Louis and Pittsburg Railroad Co. v. Hutchinson, 120 Ill. 587, that the true test and criterion to determine what is ordinary care,'is that care which a reasonable, prudent and cautious man would take to avoid injury, under like circumstances ; and in numerous instructions given in this ease on behalf of appellant, the like rule and test were announced to the jury.

The question is also to be determined as a question of fact, under all the attending circumstances. (Pennsylvania Railroad Co. v. Frana, 112 Ill. 405, and supra.) There is here evidence tending to show that a flagman was stationed and usually kept at this crossing, and also, it might be legitimately inferred by the jury, from the facts shown, that the deceased was familiar with the crossing, and with the operation and management of appellant’s company at that point. It is also shown, that j'ust prior to the collision resulting in the death, the deceased approached this crossing from the east, in a top buggy drawn by a single horse, and at a rate of speed indicated by a slow or gentle‘■trot; that at the time of such approach, the view to the north,—the direction from which the train came,—was obstructed by intervening buildings and by cars standing upon appellant’s tracks. There was also evidence which, if believed by the jury, clearly establishes the fact that no flagman was on duty at that crossing at that time. Persons immediately at the side of the deceased just before the collision, going in the same direction, and who were but a few feet behind him when he was struck, testify that they looked for the flagman and for signals of danger, and positively testify that no flagman was on duty, or any signal given. Whether the deceased was bound to do more than look for the flagman and observe the absence of any signal of danger, to be in the exercise of ordinary care, was necessarily a question of fact. In the Hutchinson case, before cited, it was said: “We are not prepared to say, as a matter of law, that a person approaching a railroad crossing where there is nothing apparent to warn him of danger, and at which he knows a flagman was stationed whose known duty is to warn all persons of danger from running trains, is required to look elsewhere than to the flagman. The flagman’s duty is to know of the approach of trains, and to give timely warning to all persons attempting to cross the railroad track, and the public have a right to rely upon a reasonable performance of that duty.” If the jury believed, that in approaching this crossing the view of any train approaching it from the north was obstructed, it was for them to say whether, from all the circumstances shown, a person in the exercise of ordinary care for his safety,—that is, such care as a reasonable and prudent man would exercise under all the circumstances shown,—would have taken other precautions than those taken by the deceased.

We are aware that this and other courts have repeatedly held, when passing upon questions of law as well as of fact, that it was negligence in a person attempting to cross a railroad not to pause and look for approaching trains. But while ■ that may be true, as a matter of fact, in any particular case, it is manifest that it must at last depend upon the circumstances shown; and the jury must, in the first instance, say, as a matter of fact, whether it was necessary to the exercise of • ordinary care. Moreover, this presentation might well be made to the Appellate Court, which is required by law to pass upon the facts, and that may, and should, if the facts are incorrectly found by the jury, reverse for that reason.

In view of the finding of the Appellate and trial courts, we can not say there was no evidence, in respect of the matter being considered, that would sustain the finding of the jury. We are not permitted to look into the facts, except for the purpose of determining whether the law has been correctly applied by the trial court, and if there is evidence upon which the jury might have found that the deceased was in the exercise of ordinary care in attempting to cross appellant’s tracks, which, if believed by them, would be sufficient to sustain the verdict, as we have seen there is, we must hold, as we do, that the court properly refused the instruction quoted.

The second instruction was properly refused. If appellant desired to raise the question as to whether the deceased was warned or notified of the approach of the train, it should have submitted the question of fact to the jury. The instruction, as asked, told the jury, that if the deceased was warned, then, as a matter of law, certain acts performed or omitted to be performed by him constituted a want of ordinary care. Whether the deceased should have waited for the train of cars to pass before attempting to cross the track, was a question of fact, to be determined in view of all the attendant circumstances, and was thus properly submitted to the jury by instructions given on behalf of the defendant itself. It was not error to refuse the second and third instructions asked by appellant, the third instruction being in all material respects the same as the second.

Appellant also asked the court to instruct the jury, “that if they shall believe, from the evidence, that at the time of the accident alleged, the deceased, in approaching the track of the defendant, stopped his horse at sight of the coming train, and then calculated the chances of his ability to cross without 'danger from the approaching train, and, acting'upon his judg- . ment, proceeded to cross the track in front of the train, and, in so doing, miscalculated, and was struck by the train, resulting in his death, then the plaintiff can not recover, and the jury will so find,”—which the court modified by striking •out all after the words, “resulting-in his death,” and inserting the words, “and then, if the jury shall believe, from the evidence in the case, that such conduct was not, under the circumstances, the exercise of ordinary care, the jury must find for the defendant,” and gave the same as modified. The instruction, as asked, should have been refused. A careful con•sideration of the evidence fails to disclose any state of facts upon which it could have properly been predicated. It is undoubtedly the law that either party may ask instructions based upon any theory supported by evidence in the casé. But a most careful scrutiny, not only of the abstract, but of the record itself, fails to show that the deceased “stopped his horse ■at sight of the coming train,” or that the horse he was driving stopped at any point where the injury could have been averted, nor is there evidence from which such an inference can be fairly drawn; nor can it be said that there is evidence tending to support the theory that the deceased stopped his horse before reaching the railroad crossing, and calculated the chances of his ability to cross without injury. The modification submitted to the jury the question whether the supposed facts constituted negligence. The giving of the instruction in this form, while erroneous for the reasons before indicated, could not have prejudiced appellant.

It is next urged that the court erred in giving instructions for appellee. We have examined plaintiff’s series of instructions with care, and are of opinion that the law, as applied to the facts in this case, was stated with substantial accuracy. Moreover, by the fifth to the seventeenth of appellant’s series of instructions given, the doctrine of negligence applicable to the facts contended for by the parties was fully and accurately-stated. Ho good purpose would be subserved by extending this opinion in the discussion' of the five instructions given on behalf of appellee. As before said, they are not subject to-the criticism attempted to be made thereon.

The remaining questions pressed by counsel relate exclusively to matters of fact. All such questions have been settled by the judgment of the Appellate Court; and while there-is much seeming force in many of the suggestions of counsel, and the case is extremely close in its facts, if the right of-' plaintiff to recover is not very doubtful, it is sufficient to say that the determination of the Appellate Court in respect thereof is conclusive upon us, and finding no error of law, its judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Cbaig

text:
    The City of Salem v. Maggie E. Harvey, Admx.

      Filed at Mt.Vernon June 17, 1889.

    1. Law and fact—questions relating to damages. What may be the-rule for assessing damages as the proper measure in an action for a tort, is a question of law; but whether the amount of damages found in the action is excessive, is a question of fact.
    2. Practice—measure of damages—how the question may he presented —as a question of law. Whether the plaintiff in an action for negligently causing the death of another, under the evidence, is entitled to recover - more than nominal damages, is a question that maybe raised by appropriate instructions, if it be desired to have that question reviewed in. this court.
    Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Marion, county; the Hon. Amos Watts, Judge, presiding.

      Mr. M. Schaefer, for the appellant:
    Jennie Harvey, the intestate, was thirty-one years old at her death, and left a father, mother, a sister and two brothers. The last three were married, and were not dependent on her for support. She owed services to none of these, nor to her father and mother. All that she did toward her parents’ support was, that she worked when at home.
    Three things were necessary to justify the verdict: First,, a wrongful death; second, next of kin; and third, pecuniary-injury or loss. Without the last, or third, element, nominal damages, only, could be awarded, even if the other two elements existed to the greatest extent. And such, I think, has been the tenor of the decisions of this court in the following and other cases, to-wit: Miller v. Miller, 16 Ill. 296; Mercer v. Jackson, 54 id. 397; Freeman v. Freeman, 65 id. 106; Byers v. Thompson, 66 id. 421; Guffin v. Nat. Bank, 74 id. 259; Morton v. Rainey, 82 id. 215; Railroad Co. v. Weldon, 52 id. 290.
    Mr. H. C. Gtoodhow, and Mr. Thos. E. Merritt, for theappellee:
    The question of how damages are estimated must be largely-left to the discretion of the jury, to whom the law commits-the question, and who can give such damages as they shall deem a fair and just compensation. What the life of a person is worth, in a .pecuniary sense, to another, is a question which does not lie within the limits of exact proof, and hence the subject has been confided to the jury. The court must see that their finding be not the result of passion or prejudice. Railroad Co. v. Shannon, 43 Ill. 340.
    The statute does not require that the widow or next of kin,, in order to recover, shall have had legal claims on the deceased for support. Railroad Co. v. Barron, 72 U. S. 90.
    The maimer in which the next of kin have sustained pecuniary loss need not be averred, and actual pecuniary loss need not be proven. Barron v. Railroad Co. 1 Biss. 412.

      The fact that the deceased, whose next of kin was a father and brothers and sisters, contributed a portion of his wages to the support and education of his younger brothers, is sufficient to entitle his administrator to recover more than nominal damages. Railroad Co. v. Whalen, 19 Bradw. 116.
    The fact that Jennie Harvey, the deceased, did contribute to the support of her mother and father, takes this case out of those where only nominal damages are allowed. In this case the evidence is clear that the negligence of the city authorities was gross.
   Mr. Justice Cbaig

delivered the opinion of the Court:

This was an action brought by Maggie E. Harvey, administratrix of the estate of Jennie Harvey, against the city of Salem, to recover damages resulting to the next of kin on account of the death of the intestate, caused, as is alleged, through the negligence of the defendant. The action was brought under sections 1 and 2, of chapter 70, page 1290, of Starr & Curtis’ Statutes, and on a trial of the cause in the •circuit court plaintiff recovered a judgment for $1500, which, ■on appeal, was affirmed in the Appellate Court.

No fault whatever is found with the ruling of the circuit court on the admission of evidence, or in the instructions of the court to the jury. The only question raised or sought to be raised in ihe argument is in reference to the amount of the recovery.

It is conceded, in the argument, that plaintiff was entitled do recover nominal damages, but it is insisted that the next of kin, in this case, have suffered no pecuniary loss, and that they are not entitled to a judgment of $1500. In City of Joliet v. Weston, Admr. 123 Ill. 641, which was the same kind of an action as this one, we held that what may be the rule for assessing the damages in a case, is a question of law; but whether the amount of damages found in an action for tort is -excessive, is a question of fact not reviewable in this court on appeal from the Appellate Court. The decision would seem to be conclusive of the question presented by this record. Whether, under the evidence introduced on the trial, the plaintiff was entitled to recover any more than nominal damages, was a question which might have been raised by an appropriate instruction, had counsel desired to have that question reviewed in this court. That, however, was not done.

No error appearing in the record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Baker

text:
    Lydia Haines v. Nancy F. Hewitt et al.

      Filed at Springfield June 15, 1889.

    1. Infants—decrees against them—impeachment thereof. A decree against an infant is absolute in .the first instance, but may be attacked and impeached either for fraud or for error of law apparent upon the face of the record, by original bill filed for such purpose, at any time before the infant attains majority, or within the period after majority allowed by law for the prosecution of a writ of error for the reversal of such decree.
    2. Do wee—apportionment—as among several heirs—and in what proportion, as to the entire estate. On bill for the partition of 367J acres of land between two heirs, and the assignment of the widow’s dower, the commissioners set off to the adult heir 165 acres and 202J acres to the infant defendant, and gave the widow dower in the whole tract set off to the infant, and left the adult heir’s part free from dower: Held, that the proceedings showed manifest error on their face, and that such error afforded good ground for impeaching the decree, on bill filed by the infant heir in proper time after attaining her majority.
    3. Amendment of kecobd—as not obviating error already committed. "Where the report of commissioners appointed to make partition of lands and set off dower therein, shows, on its face, substantial error, a motion to amend the record so as to show an approval of the report, on a bill by one of the parties to impeach the proceedings for error, may well be refused, as in such case the amendment proposed would not cure the defect or obviate the error in the original proceedings.

      Writ oe Error to the Circuit Court of Christian county; the Hon. James A. Creighton, Judge, presiding.
    Mr. Frank Drennan, and Mr. Sherman H. Haines, for the plaintiff in error.
    Mr. Anthony Thornton, and Mr. J. C. McBride, for the defendants in error.
   Mr. Justice Baker

delivered the opinion of the Court:

Thomas Anderson died intestate about the 1st of April, 1866, seized in fee of 367¿- acres of land, situate in Christian county. He left him surviving his widow, "Virginia B. Anderson, an infant daughter, Nancy Florence Anderson, who was born on the 13th day of July, 1865, and Lydia Haines, an adult married daughter by a former wife. The widow afterwards intermarried with Bennett Locknitt, and Nancy Florence is now, and for several years has been, the wife of one Aurelius M. Hewitt. Said Lydia Haines, joining with hex husband, Fletcher Haines, filed to the November special term, 1866, of the circuit court of Christian county, a petition for partition and assignment of dower, to which said "Virginia B. and Nancy Florence were made parties defendant, and there was service of process upon both of them. There was a default, and decree pro confesso against Virginia B., and a guardian ad litem appointed by the court filed answer for Nancy Florence. The court found that said Lydia and said Nancy Florence were the owners of said lands in equal parts, as tenants in common, subject to the dower of Virginia B., and decreed partition and assignment of dower, and appointed commissioners to make partition and set off dower. The commissioners made a report to the court, in which they allotted to Lydia 165 acres, and to Nancy Florence 202J acres of the land, and set off to the widow, Virginia B., as dower, the whole of the land that was assigned by them to Nancy Florence, and no part of that assigned to Lydia. Said report was filed, and marked “Approved.—E. Y. Bice, Judge,” but no order was entered upon the records of the court showing the confirmation of said report, or vesting titles and interests in accordance therewith. Thereafter, Virginia B. and Lydia each took possession, in severalty, of the respective tracts of land allotted to them by the report, and Lydia subsequently sold and conveyed to one Thomas I. Traylor 57 acres of the land so set off to her.

On the 28th day of August, 1881, Nancy Florence Hewitt filed in the circuit court of Christian county the present bill in chancery, against Lydia Haines, Virginia B. Locknitt, and others, for the purpose of impeaching and setting aside the aforesaid decree and proceedings for fraud and for errors apparent upon their face, and for a partition of and the assignment of dower in the lands. Answers and replications were filed. The court, at its November term, 1885, found and decreed that all proceedings had under and by virtue of the decree or judgment of the November special term, 1866, of the court, including the report of the commissioners in making partition and assignment of dower, were and are erroneous, irregular and void, and that neither party acquired any interest in or title to said lands thereby, and further found and decreed that said Nancy Florence was entitled to the relief prayed for in her bill, and decreed a new partition and assignment of dower, and appointed commissioners to make such partition and set off such dower. The lands were afterwards partitioned, and dower set off in conformity with the provisions of this latter decree. The writ of error sued out herein questions the propriety of the proceedings of the circuit court, based upon the bill filed by Nancy Florence Hewitt, the defendant in qrror.

The practice does not obtain in this State, of giving, by the decree, an infant a day in court upon his or her coming of age. It is here the settled rule that a decree against an infant is absolute in the first instance, but may be attacked and impeached, either for fraud or for error of law apparent upon the face of the record, by original bill filed for such purpose at any time before the infant attains majority, or within the period after majority allowed by statute for the prosecution of a writ of error for the reversal of such decree. Loyd v. Malone, 23 Ill. 43; Kuchenbeiser v. Beckert, 41 id. 172; Hess v. Voss, 52 id. 472; Gooch v. Green, 102 id. 507; Lloyd v. Kirkwood, 112 id. 329. In this case the complainant filed her bill shortly after her arrival at the age of nineteen years, and so it was presented in ample and apt time.

Plaintiff in error and defendant in error were, under the law of the land, entitled to have and receive, in equal shares, the estate of their deceased father. It appears from the record before us, that while plaintiff in error was at once given possession and control of the 165 acres of land allotted to her by the proceedings had in 1866, yet that defendant in error, down to the time of the rendition of the decree of 1885, had received no part of her inheritance. The widow is still living, and the probabilities are, that if the partition and assignment of 1866 were permitted to stand, an additional number of years would intervene before defendant in error would receive any pecuniary benefit from the estate. The proceedings of the court at the November term, 1866, were unjust and erroneous. They imposed the whole burden of the widow’s dower in the estate upon the lands assigned to one heir, and wholly relieved therefrom the lands assigned to the other heir. (Schnebly v. Schnebly, 26 Ill. 116.) This rank injustice and manifest error is sufficient, of itself, to afford good ground for impeaching the decree and proceedings.

The injustice of the result reached by the partition proceedings of 1866, as affecting the rights of Nancy Florence, the infant defendant therein, is made more apparent if we may consider, in connection with the record then made, the pleadings and testimony in the present case. The widow was only entitled, as dower, to the one-third of the lands of her deceased husband, and she was given by the commissioners appointed in 1866, a life estate in 202¿- acres of the 367J acres left by him; and it appears from the record now before us, that these-202-|- acres were of equal value with, and probably of greater value than, the residue of the estate. The widow, then, instead of receiving only one-third of the lands of her deceased husband, was given more than a moiety in quantity, and a. moiety or more in value, and the entire burden was placed upon the share of the infant heir, and the share of the adult heir wholly exempted therefrom.

There was no reversible error in the refusal of the court to allow the motion to amend the record of the court, made at the November special term, 1866, so as to show that the court approved the report of the commissioners then made. There-was substantial error in the report itself, and the proposed amendment of the record would not have cured the defects or obviated the error; and plaintiff in error was not injured by the action of the court in the premises. Defendant in error expressly stated in her bill of complaint that she did not desire or ask that the title to the 57J acres of land sold in 1868 by plaintiff in error to Thomas I. Traylor should be disturbed, and that she claimed no relief against the land so sold. At the hearing it was, by the agreement and consent of both plaintiff in error and defendant in error, ordered and directed that said 57J acres should be assigned to plaintiff in error, and this was done by the newly appointed commissioners in making partition and setting off dower. This action was manifestly for the benefit of plaintiff in error, and by her express consent entered of record, and she can not now be heard to complain in regard thereto.

We find no error in the record for which the decree rendered at the November term, 1885, should be reversed, and it is therefore affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    Alexander McArthur v. Isaac Artz.

      Filed at Ottawa June 15, 1889.

    1. Costs—in criminal cases—costs in advance from defendant. In a ■criminal case, where the accused has been convicted before a justice of the peace and has perfected his appeal to the circuit court, the clerk of that court has no right to demand of him the payment of a docket fee in advance, as a condition precedent to placing the case upon the docket; and if the clerk refuse to docket the case without such payment, the circuit court may, by rule, require him to do so, without the payment of costs in advance.
    2. As the costs in criminal cases are required to be paid out of the county treasury in case of an acquittal, and as the defendant can not be compelled to pay costs when he is acquitted, it follows that he can not be required to advance costs before his trial. In case of his acquittal he can not recover back the costs he may have advanced, as no judgment can be entered against the People in a criminal case.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. S. D. C. Hats, State’s Attorney, for the appellant:
    The general principle is, that the party who requires an ■officer to perform services for which compensation is allowed, is in the first instance liable; and in a criminal case, a defendant, even when successful, is liable to pay his costs to the proper officer, when the costs accrue. Neither does section 9, ■article 11, of the constitution, exempt the defendant in a criminal ease from liability for costs. People v. Harlow, 29 Ill. 43; Carpenter v. People, 3 Gilm. 147.
    Messrs. Pepper & Scott, for the appellee:
    There is no statute requiring the payment of costs in advance in criminal cases. Section 19 of the Bill of Bights provides, that every person “ought to obtain, by law, right and justice freely, and without being obliged to purchase it.” And the. 9th section provides, “that in all criminal prosecutions the accused shall have the right to appear and defend, .in person and by counsel; to demand the nature of the accusation, and to have a copy thereof; to meet the witnesses face to face, and to have power to compel the attendance of witnesses in his behalf.”
    Again, in the 17th section of chapter 33, Starr & Curtis’ Statutes, entitled “Costs,” it is provided, that if, in any case of the People, the case is not proved, or verdict is rendered against the plaintiff, the defendant shall recover no costs,— ■ergo, he should advance none, else he has to buy justice. See People v. Coultas, 9 Bradw. 39.
    Again, section 446 of the Criminal Code provides, that if a defendant is found not guilty, he shall be discharged without the payment of costs,—and the same rule should, and does, hold good in this State. If not liable for costs if not convicted, he should not be required to pay any in advance, as he can get no judgment for their return. Section 444 of the Criminal Code provides that the defendant shall not be required to advance jury fees.
    Again, section 15 of the Fees and Salaries act provides, "“that in all criminal cases where the defendants are acquitted, the clerk’s costs shall be paid out of the county treasury.”
    Again, in the same chapter, paragraph 19, page 1130, of Starr & Curtis’ Statutes, it is provided: “In all criminal cases where the defendant shall be acquitted, the sheriff shall be paid such fees out of the county treasury.” As, then, the accused only-owes fees on condition of conviction, he can be held to pay none unless convicted.
    In paragraph 40 of the same act it is provided i “In all criminal cases where the prosecution fails, the county board may direct the costs to be paid out of the public treasury.” This includes the fees of justices, police magistrates, constables, jurors and witnesses.

      In section 511 of the Criminal Code it is provided, that if convicted, the defendant is to pay costs, before a justice. The rule is the same as in the circuit court, and on acquittal no-costs can be taxed against the person accused. And no costs-can be collected of a discharged defendant, even though made by him in his own defense. Wells v. McCulloch, 13 Ill. 606.
   Mr. Justice Magruder

delivered the opinion of the Court l

Two prosecutions, one to keep the peace, and one for disorderly conduct, were instituted against the appellee before a justice of the peace in Mercer County. He was arrested on both charges, and compelled by the decision of the justice to-give bond and pay the costs in the one instance, and fined in the other. He took an appeal to the Circuit Court. The-papers were sent up by the justice to the clerk of the Circuit Court. The latter refused to docket the cases in the Circuit Court, unless his fees were advanced, as is the usual practice-in civil cases. Thereupon Artz, by his attorneys, moved for a rule upon the clerk, “ordering and directing him to docket-said cause or causes because the causes are criminal causes, and the defendant is not liable to pay costs unless he is found guilty and convicted. ” The Circuit Court allowed the motion, and ruled the clerk to docket the cases without the payment of fees therefor by Artz, to which ruling the clerk excepted and prayed an appeal to the Appellate Court. The Appellate Court has affirmed the ruling of the Circuit Court, and allowed an appeal to this Court, certifying that the case “involves-questions of law of such importance, on account of principal and collateral interests, as that it should be passed upon by the Supreme Court, to wit: whether it is lawful in a criminal case, where a party has been convicted before a justice of the-peace, and has perfected his appeal to the Circuit Court, for the clerk of such court, * * * as a condition precedent to placing the cause on the docket of the Circuit Court, to require the appellant to pay a docket fee in advance.”

Section 15 of the Fees and Salaries Act (Starr & Cur. Stat. page 1125, chap. 53, see. 15) provides that “in all criminal cases, when the costs cannot be collected from the defendants on their conviction, or where the defendants shall be acquitted, such costs shall be paid from the county treasury.” The costs here referred to are the costs of the clerks of the Circuit Courts. (Satterfield v. County of Jefferson, 85 Ill. 347.) If the costs are to be paid out of the county treasury when the defendants are acquitted, then the acquitted defendants cannot be compelled to pay them. If a defendant cannot be compelled to pay costs when the trial results in his acquittal, then he ought not to be required to advance costs before his trial has taken place, and before it can be known whether he will be acquitted or not.

In the event of his acquittal the defendant cannot recover back the costs which he may have advanced. In section 17 of the Act in relation to Costs (Starr & Cur. Stat. page 641, chap. 33) it is provided, that, in all suits and actions commenced in the name of the People, if the plaintiff suffer a discontinuance, or be non-suited, or non-pros’d, or verdict pass against such plaintiff, the defendant shall not recover any costs whatever. It is true that the present cases were first tried before a justice of the peace, and appealed by the appellee to the Circuit Court. But the trial in the Circuit Court of a case appealed from a justice is a trial de novo. (Kasting v. Kasting, 47 Ill. 438; Adkins v. Mitchell, 67 id. 511.) The plaintiff in the justice’s court is plaintiff in the circuit court, on the trial of the appeal, and the rights of the parties are the same as in original actions. (Starr & Cur. Rev. Stat. chap. 79, sec. 74, page 1460.)

We find other provisions in the Fees and Salaries Act similar to that quoted from section 15. In section 19 (Starr & Cur. page 1130) it is provided, that “in all criminal cases where the defendant shall be acquitted, or otherwise discharged without payment of costs, the sheriff shall be paid such fees from the county treasury. ” In section 40 of the same act (Starr & Cur. page 1139) we find the following language: “in all criminal cases where the fees cannot be collected of the party convicted, or where the prosecution fails, the county board may, in its discretion, direct that the costs of the prosecution, or so much thereof as shall seem just and equitable, shall be paid out of the county treasury.”

From these provisions it would seem to have been the intention of the legislature, that, where a defendant, who is tried upon a criminal charge, is acquitted, he shall not be required to pay costs, and, as he cannot recover them back, where the proceeding is in behalf of the people, he is not obliged to advance them. The views here expressed are sustained by the case of Wells v. McCulloch, 13 Ill. 606.

What is here said, however, applies only to proceedings in the Circuit Court, and has no reference to costs in the Appellate and Supreme Courts, or to costs made in the Circuit Court in taking cases to the Appellate and Supreme Courts. (Carpenter v. People, 3 Gilman, 147.)

The judgment of the Appellate Court is affirmed.

Judgment affirmed.