author: Mr. Chief Justice Mulkey Mr. Justice Craig :

text:
    Fort Dearborn Lodge No. 214, I. O. O. F. v. Albert Klein et al.

      Filed at Ottawa November 14, 1885.

    1. Trespass quare clausum fregit—when the action will lie—and herein, of the right of the owner to make entry. The action of trespass quare clausum fregit never lies except for an injury to the possession of the plaintiff.
    2. Where the owner of land, having the right to the immediate possession, makes an entry thereon in a quiet and peaceable manner, or without actual force or violence, he is not liable in trespass to one who has neither the right of property nor a right to the possession. In such case the plea of liberum tenementum presents a complete answer to the action.
    3. The first section of the Forcible Entry and Detainer act, “that no person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter by force, but in a peaceable manner, ” is a recognition of the common law remedy given the paramount owner entitled to possession, to redress himself without legal process, but limits his entry to a peaceable one. The word “force” is to be construed actual force.
    4. Same—liberum tenementum.—whether it is a proper plea, and of its nature and effect. The plea of liberum tenementum is a proper plea in an action of trespass quare clausum fregit, and it is error to instruct the jury to disregard the same when pleaded. °

    5. The plea, as one of confession and avoidance, in legal effect admits such a possession in the plaintiff as would enable him to maintain the action against a wrongdoer, and asserts a freehold in the defendant, with a right to immediate possession as against the plaintiff.

      6. Same—replication to such a plea. To a plea in an action of trespass quare clausum fregit, that the locus in quo was the soil and freehold of the defendant, and that he and his servants peaceably entered the same for the purpose of building a partition wall, etc., the plaintiff may reply that at the time of the alleged trespass he was in the lawful possession of the premises as a tenant of the defendant.
    7. Practice—erroneous rulings upon the pleadings—power and duty of the trial court to correct them. The court has the power, and it is its duty, at any time before trial, when becoming satisfied that an erroneous ruling has been made with respect to the sufficiency of a .pleading or other similar matter, to promptly set aside the order and correct the error.
    8. Where the court, after overruling a demurrer to a plea and the filing of replication thereto, becomes satisfied that the plea was bad, as presenting no defence, it should withdraw the case, at least temporarily, from the jury, set aside the order overruling the demurrer, and enter one sustaining the demurrer. The defendant should then be permitted to stand by the plea, or plead over, as advised. This is much the same as awarding a repleader, and the fact that the order was made by another judge is a matter of no consequence.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. J. W. Showalter, for the appellant:
    At common law, under no circumstances could an action of trespass quare clausum fregit be maintained against one, who, having the right of possession, made entry upon his own land. 1 Hawkin’s P. C. chap. 28, p. 495, et seq.; King v. Wilson, 8 T. R. 357; Harvey v. Bridges, 14 Mees. & W. 437; Hyatt v. Wood, 4 Johns. 180.
    The plea of liberum tenementum is a good plea to an action of trespass quare clausum fregit in this State. Railroad and Coal Co. v. Cobb, 94 Ill. 56; Stearns v. Sampson, 59 Me. 568; Reeder v. Purdy, 41 Ill. 279; 3 Chitty’s Pl. 1074; Phillips v. Springfield, 39 Ill. 84; Meader v. Stone, 7 Metc. 147; Dearlove v. Herrington, 70 Ill. 251; McCormick v. Huse, 66 id. 315 ; Haskins v. Haskins, 67 id. 450; Brown v. Smith, 83 id. 300.

      The decision overruling the demurrer was res judicata, and the court had no rightful authority to direct the jury to disregard the issue on the plea. American Express Co. v. Pinckney, 29 Ill. 405; Cresswell v. Peckham, 6 Taunt. 630; Edwards v. Blunt, 1 Strange, 426.
    A court of error may reverse for any error found in the record, no matter whether assigned or not, or whether the point was raised or not in the lower court. Castledine v. Munday, 4 B. & Ad. 90; Bennett v. Butterworth, 11 How. 676.
    Mr. John McGaeeey, and Messrs. Barnuh, Bubens & Ames, for the appellees:
    It is the settled law of this State, as announced by repeated decisions of this court, that the owner in fee, though wrongfully kept out of his possession, can not be permitted to enter against the will of the occupant; that the common law right to enter and to use all necessary force to obtain possession from him who may wrongfully withhold it, has been taken away by our statute of forcible entry and detainer; that the peace and good order of society require that the owner shall not be permitted to enter against the will of the occupant, and hence the common law right to use all necessary force has been taken away; and that while a landlord may enter upon his own premises peaceably, either during the time or after the expiration of a tenancy, or while in the possession of a wrongdoer, for a lawful purpose, yet he has no right to make forcible entry, or if, after entering for a lawful purpose, he shall injure the occupant or his property, the owner will render himself liable to an action, and he can not justify under the plea of liberum tenementum. Page et al. v. DePuy, 40 Ill. 506; Reeder v. Purdy, 41 id. 279; Farwell v. Warren, 51 id. 467; Haskins v. Haskins, 67 id. 446; Railroad Co. v. Cobb, 94 id. 67; 68 id. 53; McCormick v. Huse, 66 id. 320; Dearlove v. Herrington, 70 id. 251.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

On the 31st of December, 1881, the appellees commenced an action of trespass guare clausum fregit, in the Superior Court of Cook county, against the appellant, and others acting as its servants, the declaration being in the usual form. The suit was subsequently dismissed as to all the defendants but the appellant. Issues were joined on pleas of “not guilty” and of “leave and license, ” but they are unimportant, so far as the questions to be discussed are concerned. The defendant also pleaded specially that the locus in guo was the soil and freehold of the defendant, and that it, together with its servants, peaceably entered the same for. the purpose of building a partition wall, etc. A demurrer having been overruled to this plea, the plaintiffs replied, in legal effect, that at the time of the alleged trespass the plaintiffs were in the lawful possession of the premises as tenants of the defendant, upon which plea issue was joined, and the cause was tried before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff, for $500, which, on appeal, was affirmed by the Appellate Court for the First District. The case is certified here from the Appellate Court, and the conclusion to be reached turns upon the correctness of the ruling of the trial court with respect to the plea last above mentioned, which in technical language is called a plea of liberum tener mentum.

It appears from the record, the'pleadings were settled by one judge and the cause wras tried by another, and that they w7ere not in accord as to the sufficiency of the plea. While the former held it good on demurrer, the latter regarded it as presenting no defence, and expressly instructed the jury to that effect. To so instruct was equivalent to striking the plea from the record, which necessarily carried w7ith it the replication thereto and the issue formed thereon. This left before the jury a vast mass of evidence relating to the renting of the premises by the plaintiffs, which was not relevant to any issue then before the jury. To have carried out the trial judge’s view, the court should also have withdrawn the replication, and all evidence relating thereto, from the consideration of the jury; but this ivas not done. We do not think the course adopted was the proper practice. Nor do we agree with counsel for the appellant, that where a court has made an order either sustaining or overruling a demurrer to a pleading, such order passes beyond the control of the court. On the contrary, whatever may have been the rule on the subject in former times, when pleadings were ore tenus, we are of opinion that under the present liberal practice the court has the power, and that it is its duty at any time before trial, when it becomes satisfied that an erroneous ruling has been made with respect to the sufficiency of a pleading, or other similar matter, to promptly set aside the order and correct the error. So in the present ease, when the trial judge became satisfied that the plea in question was bad, he should have withdrawn the case, at least temporarily, from the jury, set the order overruling the demurrer, aside, and entered one sustaining the demurrer. The defendant should then have been permitted to stand by the plea, or plead over, as he might be advised. The course indicated is much the same as in the case of awarding a repleader. The fact that the order was made by another judge is a matter of no consequence whatever. The power of the trial judge was precisely the same as if he had made the ruling himself. The ruling in either case would be the act of the court.

The real question, however, in the case is, did the court err in holding the plea of liberum tenementum bad, and in withdrawing it from the consideration of the jury. The question involves the doctrine of legal seizin or possession of corporeal hereditaments by one having or claiming an immediate freehold estate therein,—a doctrine which lies at the very foundation of the English law of real property, and which is as old as the common law itself. One having such seizin is properly called tenant of the freehold, and many rights and duties, particularly in ancient times, attached to him as such. We can not stop to enumerate these rights and duties, which grew out of the feudal system, and which anciently devolved upon the tenant of the freehold; nor would it be profitable to do so, as they are exhaustively treated by Blackstone, Kent, and other standard authors. Suffice it to say, in general terms, that the evils and abuses that formerly found recognition in the law of real property as it existed in England, growing out of their feudal origin, have, in the main, long since been abolished in England, and as to this country they never had any existence. But on the other hand, there are many doctrines of the law of real property, including that of seizin^ whose origin is referable to the same fruitful source, that are in full force at the present time. Seizin and ownership, as to corporeal hereditaments, in the common law sense of the term, mean, practically, the same thing,—hence the doctrine is well recognized that but one of two or more persons claiming under adverse titles can have seizin of the same land at the same time. However many claimants, there can be but one seizin. It is to be borne in mind, however, this seizin may be tortious or wrongful, as well as lawful. Nevertheless, so long as the seizin continues, whether it be the one or the other, the person having it, for all practical purposes, is, by the common law, regarded as owner, according to the title he claims, which can not be less than a life estate, and may be an estate in fee or fee tail, where the latter kind of estate has not been abolished, as it has in this State.

There is a material difference, however, between lawful and unlawful seizin, in respect to the manner of acquiring or losing the same, which will more fully appear further on. There is also a difference in respect to the essential elements which enter into these two kinds of seizin. Thus, actual occupancy is essential to a tortious or unlawful seizin, but it is not to a lawful seizin. There is no such thing as a constructive illegal seizin or possession, yet the holder of the legal title to a freehold estate, where the premises are vacant and unoccupied, has a seizin in laiu, as contradistinguished from a seizin in fact. The holder of the paramount title, when occupying the premises, is seized both in law and fact, but one not having such title can only be seized in fact. We desire to emphasize the statement that mere occupancy does not constitute seizin, in the legal sense of that term, even in the case of a tortious or unlawful seizin. One may be in the occupancy of land as a mere squatter, without any pretence of claim, when, in contemplation of law, even the possession is in another. The term “possession,” though sometimes used in the sense of seizin, does not fully express the technical meaning of that term. Seizin in fact includes possession, yet it implies something more. Even the latter term is ambiguous, and. much has been said and written, with, perhaps, not entire success, in attempts to define or explain its true signification, as applicable to the law of real property. It will, however, be sufficiently accurate for the purposes of the present discussion, to define possession, in the connection indicated, to be that position or relation which one occupies with respect to a particular piece of land which gives to him its use and control, and excludes all others from a like use or control. If one having exclusive possession in the sense stated, claims to have a freehold interest in the land, he will, in law, be deemed to be seized of the same according to the title or estate claimed, although the' paramount title may be in another.

Seizin, then, in a legal sense, means possession with the intention of asserting a claim to a freehold estate in the premises added. By the English common law, the ownership of one thus seized of corporeal hereditaments was held coextensive with his seizin, only. Whatever defeated his seizin operated as a discontinuance of his estate. If, therefore, a stranger having no title whatever entered upon the lawful owner, and expelled him from his own land, with the intention of asserting dominion and proprietorship over it himself, such action on his part was, in technical language, a disseizin of the owner, the effect of which was not only to discontinue the estate of the latter, but also to confer on the wrongdoer a defeasible estate in fee simple, which, if not determined by suit or entry within the Statute of Limitations, would ripen into an absolute inheritance. The owner thus dispossessed might maintain an action of trespass guare clausum fregit for the original trespass, but for the subsequent tortious acts of the wrongdoer in exercising dominion over the premises, trespass would not lie, for the reason the former possession had ceased with his expulsion, and, consequently, there could be no injury to his possession, for which, alone, trespass lies.

To the student, or even the practitioner or jurist, it is a pleasing task to trace the numerous and important legal results which, by the common law, flow from a case of disseizin, and to note the numerous channels into which they branch out, and the consistency and wonderful harmony that are everywhere to be observed in them. But we can not stop to consider them here, except so far as may be necessary to a presentation of our views upon the question under consideration. In the case suggested, the owner, on being ousted or disseized, in addition to his right to maintain trespass for the original injury, still retained the right of property and a right to immediate possession. But these rights, as already seen, were practically fruitless so long as the seizin remained in another, for, as the land could not be conveyed except by a transfer of the seizin,—a thing which the evicted owner no longer had,—it followed he was unable to sell or otherwise dispose of it until he regained the seizin. To accomplish this object he had a choice of remedies. He might bring an appropriate action to recover the possession of the premises, or he might, without legal process, re-enter upon them, which would have the same effect as if restored to the possession by a suit at law,—and this entry without process, prior to 8 H. 6, Cap. 9, need not, so far as the civil rights of the parties were concerned, have been without force, for, whether the entry was peaceable or forcible, the effect in either case was to restore the owner to his lawful possession and seizin, and such restoration of his rights related back to the time of his disseizin, and thereby enabled him to maintain an action for the recovery of the intermediate damages or mesne profits during the time he was wrongfully kept out of possession.

But the act in question, which was passed for the suppression of forcible entries and forcible detainers, gave the party aggrieved a remedy by indictment, and also “by assize, or novel disseizin, or action of trespass, ” to recover treble damages. This act had been preceded by 5 B. 2, Cap. 8, and 15 B. 2, Cap. 2, relating to the same subject. The first provides: “That none, from thenceforth, shall make any entry into any lands arid tenements but in cases where entry is given by law, and in such cases not with strong hand nor with multitude of people, but only in a ¡peaceable and easy manner; and if any man, from henceforth, shall do to the contrary, and thereof be duly convicted, he shall be punished by imprisonment of his body, and thereof ransomed at the king’s will.”' This act, it will be perceived, does not give any civil remedy, nor does it extend to forcible detainers, and, as the very terms in which it is conceived imply, it has no application to cases where the entry is made “in a peaceable and easy manner,” though if made “ivith a strong hand," or “ivith multitude of people," it is an indictable offence, notwithstanding it may be in a case “where entry is given by law.” The second act last above mentioned was extended to forcible detainers where the entry had been forcible, but not otherwise. It also contained a number of other provisions, the object of which was to give effect to the statute, not contained in the original act. Most of the forcible entry and detainer laws of this country, including our own, are substantially modeled after these acts, particularly the first.

There is nothing in the construction given by the English courts to these acts that warrants the conclusion that they were intended to abrogate or in any respect qualify the general principles that had hitherto governed the action of trespass guare clausum fregit, but the very contrary clearly appears from the decisions of those courts. To maintain an indictment founded upon these statutes, it was necessary to allege and prove the possession or seizin of the prosecutor, and a forcible entry or detainer, or both, as the case might be. The word forcible, as used in the statute, was held to mean actual force, as contradistinguished from that force which is implied from an unlawful entry, merely. By actual force was meant such as breaking open doors, or other like violent acts. So where an entry was effected by means of threats or intimidation of any kind, such as being attended by an unusual number of persons, or by making a display of dangerous weapons, it would be deemed a forcible entry, within the meaning of these statutes. If the entry, on the other hand, was made by one having paramount title, and a right to immediate possession, in a peaceable and orderly manner, followed by no violence or intimidation, for the purpose of holding possession, no offence was committed under the statute. Moreover, the effect of such entry was, as we have already seen, to immediately transfer the seizin and possession of the premises to the rightful owner, and, consequently, to deprive the occupant of whatever rights he may theretofore have had in respect to them, and upon his refusal to vacate and surrender the same upon request, the occupant himself would become a trespasser.

Upon what principle, then, could one thus circumstanced maintain an action of trespass against the paramount owner, • for such an entry ? If the very act complained of, which was violative of no law, deprived the plaintiff of possession, how can it be said such act was an inj ury to his possession ? It is clear when the act was consummated he had no possession. If, in the case suggested, there was no injury to the possession, as there clearly could not have been, it conclusively follows that trespass would not lie in such a case, since that action never lies except for an injury to the possession. It is partly upon this very theory of the law that the plea of liberum tenementum has uniformly in England, and almost by an unbroken current of authority in this country, been held a good plea to an action of trespass to realty. The plea has sometimes been criticized for being anomalous and illogical, in this, that the defendant, though a freeholder, might nevertheless be guilty of a trespass,—as, where a landlord wrongfully enters upon his tenant. But in such case that is proper matter to be set up in a replication,—the very thing which was done in this case. As a plea of confession and avoidance it has been construed to admit “such a possession in the plaintiff as would enable him to maintain the action against a wrongdoer, and to assert a freehold in the defendant, with a right to immediate possession as against the plaintiff.” (Ryan v. Clark, 14 Q. B. 71.) And this, we think, is the legal effect of the plea.

Is there not a manifest inconsistency in conceding one to be the paramount owner of a piece of land, with a right to the immediate possession thereof, and yet maintain that if he, in a quiet and peaceable manner, enters upon the land thus owned by him, he may, by doing so, become liable in trespass to one who has neither a right of property therein nor a right to the possession? If one can recover in such case, his recovery will be on account of a thing (the possession) to which he had no right, and against the person who had the right to that very thing. The case suggested is not the case of one doing a lawful act in an illegal manner. A tort or even a crime may well be committed by doing a legal act in an unlawful manner, and no case illustrates the principle better than that of the owner of land having a right to enter, who takes possession in a forcible and violent manner. But that is not the case suggested. By the common law there is no pretence for the claim that liberum tenementum is not a good plea to an action of trespass to real property. Indeed, this is universally admitted. But its sufficiency has been questioned by a few courts on the alleged ground that it is inconsistent with the forcible entry and detainer laws, which have already been partially considered, particularly as they formerly existed in England. So far as England is concerned, with the exception of the case of Newton v. Harland, 1 Man. & Gr. 644, (39 E. C. L. 581,) there is no foundation for the claim; and that case is overruled by later cases. Nor does the claim find but little more support from the general current of authority in this country than it does in England. It is believed that whatever contrariety of opinion exists on the subject, has arisen partly, if not mainly, from confounding the two senses in which the term “force” or “forcible” is used in the law. In Bacon’s Abridgment, the author, after having explained the word “trespass” as signifying “going beyond what is right, ” and noticed the fact that some trespasses are committed without force, and that the remedy for such injuries is an action of trespass on the case, proceeds: “Other trespasses are accompanied with-force, either actual or implied'. If a trespass accompanied with actual force have been injurious to the public, the proper method of proceeding against the wrongdoer is by indictment or information. If a trespass accompanied with actual force have only been injurious to one or a few persons, the wrongdoer may, in some cases, be proceeded against by indictment, for although the injury was done only to one or a few persons, yet as -every trespass accompanied with actual force amounts to a breach of the peace, it is an offence against the public. * * * If a trespass not accompanied with actual force have only been injurious to one or a few persons, the only method of proceeding against the wrongdoer,—this not being a public offence,—is by an action of trespass.” Title “Trespass,” vol. 6, page 554.

The distinction between actual and implied force is here clearly drawn, and the English and American courts generally, in giving effect to the law governing actions of trespass to real property, as well as to the forcible entry and detainer laws, have consistently kept this distinction in view. While they hold the owner of land criminally liable for an entry thereon with actual force, without regard to whether he has a right of entry or not, and in some cases, where the occupant has been expelled from the premises, will, as part of the punishment, compel the owner to restore to him the possession, and thus place the parties in statu quo, yet such forcible entry by one having a present right of entry would not, at common law, sustain an action of trespass at the suit of the occupant wrongfully withholding the possession from the rightful owner. A plea of liberum tenementum, in such case, afforded a complete answer to the action. Thus, in Roberts v. Taylor, 1 Man., Gr. & S. 126, Cresswell, J., said: “In trespass quare clausum fregit the possession of the plaintiff is the foundation of the action; and the defendant is considered sufficiently to deny the plaintiff’s right of possession by pleading liberum tenementum in himself. * * * By this anomalous plea the plaintiff is put to shew how he has a possession in himself consistent with the freehold being in another, unless he chooses to traverse the title set up in the plea.” Cases to the same effect, both in this country and England, might be cited almost indefinitely, if necessary, but it is not.

The sufficiency of such a plea was questioned by this court for the first time in the cases of Page et al. v. De Puy, 40 Ill. 506, and Reeder et al. v. Purdy et ux. 41 id. 282, both of which were decided at the April term, 1866. The view then taken in those cases, which is adverse to the sufficiency of such a plea, was based mainly upon Dustan v. Cowdry, 23 Vt. 635, in which a very elaborate opinion was delivered by Justice Red-field. After a very careful reconsideration of the opinion in that case, we are satisfied that undue importance was given to some of the positions assumed in it. That case, as well as the Page and Reeder cases, which were mainly controlled by it, was altogether unlike the one in hand. . In the present case the plea expressly avers that the entry was peaceable, and, moreover, the proofs show that such was the fact. There was such force in the Page and Reeder cases as to clearly bring them within the forcible entry and detainer laws, even as construed in England. This is also true of the case of Dustan v. Gowdry, siqora, upon which our own cases are based. Where the record shows such a state of case, there would be some apparent reason, at least, in holding that such a plea was not sustained by the proofs; but here the truth of the plea is admitted by the replication. In Dustan v. Gowdry, supra, the entire reasoning of the court is based upon the tortious character of the entry, and the force and violence used afterwards. The present case is not embarrassed by any consideration of that kind, for, as just remarked, the peaceable entry of the defendant is admitted by the pleadings. But not only so, we think the proofs conclusively show the same fact. The case is simply this: The defendant, having a clear right to enter, did so in a peaceable manner, as is alleged in the plea, and proceeded to erect the party wall. To do this it was necessary to move the storehouse, in which the plaintiffs were doing business, a few inches, which was done in a careful manner, putting the plaintiffs to as little inconvenience as possible. While this was being done the plaintiffs were conducting their business in the house just as before. There was no attempt by the defendant to interfere with the contents of the house or the business of the plaintiffs.

But let us see what there is in our Forcible Entry and Detainer act that affects the sufficiency of such a plea. The first section provides: “That no person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter with force, but in a peaceable manner. ” The second section gives a civil action to recover the possession in certain specified cases. So far as the civil feature of this act is concerned, it has always been regarded as a substitute for the old common law writ of entry, which decides nothing but the right of possession. With respect to the prohibitory feature contained in the first section, it is, in legal effect, the same as that contained in 5 R. 2, Cap. 8, above cited. A person not having a right to enter is forbidden to do so. One having such right may enter, provided he do so without force and in a peaceable manner. The word “force,” as here used, means actual force, as contradistinguished from implied force. Any entry requires force, in the literal sense of the term, but that, of course, could not have been meant, for it would involve an absurdity. Nor does it mean that force which the law implies where a peaceable entry is made by one having no right to enter, for the act absolutely prohibits a person of that kind from making an entry at all. The conclusion, therefore, is irresistible that the force which the statute inhibits is actual force.

It is clear, then, from the very words of the statute, that the paramount owner of a tract of land, having a present right of immediate possession, may enter the same in a peaceable manner, though occupied by another, and he will not, by reason of such entry, become a trespasser. The word “entry,” occurring in the statute, is used in its appropriate legal sense, as signifying that remedy which the common law gives to the paramount owner of real property to redress, without legal process, the injury which he sustains when wrongfully deprived of the possession thereof by one having no right thereto. To say that the plea in question is bad, is to assert that this right no longer exists. This surely can not be the law. Outside of the fact that the existence of such right finds recognition and support in all the books ever written on the law of real property, as it exists here and in England, it is expressly recognized in the statute. Turning to chapter 83 of the Kevised Statutes, entitled “Limitations,” we find in the first section the following language: “That no person shall commence an action for the recovery of lands, nor make any entry thereon, unless within twenty years after the right to bring such action or make such entry first accrued, ” etc. Again, in the third section: “The right to make an entry or bring an action to recover land shall be deemed to have first accrued at the times respectively hereinafter mentioned, that is to say: First, when any person is disseized, his right of entry or of action shall be deemed to have accrued at the time of such disseizin, ” etc. It is to be specially noted that the right to make an entry and to bring an action are put upon the same footing, and that they are both given for the same purpose, namely, “to recover land.” It would be simply absurd to say that all this means is, that the owner-may go on his own land and stop the running of the statute when invited or permitted to do so by the occupant who is wrongfully and willfully withholding the possession from him. A peaceable entry in such case as completely defeats the possession and seizin of the occupant as if put in possession by a suit at law. In either case the possession of the occupant is determined, and if he does not at once vacate the premises, the owner, being now in possession, may himself maintain an action of trespass against the tortious occupant, but the owner is not authorized to assault him or forcibly eject him. If, upon making such entry, he is assaulted and expelled by the occupant, he can prosecute the latter, both criminally and civilly, for the assault, and have him arrested upon a capias, in an action of trespass quare clausum fregit, for the trespass to the land. All this is but the necessary legal consequences which flow from the remedy by entry.

This view of the subject entirely harmonizes the law relating to “trespass, ” “limitations ” and “forcible entry and detainer. ” Any other view leaves the whole subject in doubt and confusion. A good illustration is afforded of this by what is said in the Reeder case, where the old doctrine of the court was first departed from. That ease was reversed because the court refused to instruct the jury the plaintiff could not recover for any damages to the real estate. The land in that case, as in this, belonged to the defendant. In disposing of the case on that point, it is said in the opinion: “But a person having no title to the premises clearly can not recover damages for any injury done to them by him who has title. It would be a startling doctrine to hold that the wrongful occupier of land could make the owner thereof respond to him in damages for timber that the owner might cut on the premises, ” citing Hoots v. Graham, 23 Ill. 82. It would seem, upon more mature consideration, that the wrongful occupier’s right to the possession in that case, for which it was thought he ought to recover, was not a whit better than his title to the land. This being so, the same logic which denied a recovery for the one certainly ought for the other.

All the cases in this court which seem to recognize the view taken in the Page and Reeder cases are, of course, founded upon them. There is no ease, however, decided by this court to which our attention has been called or which we have been able to find ourselves, where the sufficiency of a plea of liberum tenementwm has been raised by demurrer. The present case, it is believed, presents the question more directly than, any one that has occurred in this court. Subsequent to the Page and Reeder cases the following ones have occurred in this court, in which the question under consideration has been discussed or adverted to with more or less directness: Farwell v. Warren, 51 Ill. 467; Haskins v. Haskins, 67 id. 446; Illinois and St. Louis Railroad Co. v. Cobb, 94 id. 55, and 68 id. 53. Farwell v. Warren simply holds that a landlord has no right to make a forcible entry on his tenant holding over. This, of course, is the correct doctrine. The clear implication is, that he would have the right to make a peaceable entry. Haskins v. Haskins was' an aggravated case of forcible entry. The case was tried under a plea of not guilty, with a stipulation that any legal evidence might be given under it tending to sustain or defeat the action. The opinion was delivered by Justice McAllisteb, and all that is said in it pertinent to the present inquiry is found on page 450. It is there said: “There was no attempt to justify under what would support a plea of liberum tenementum. Under the decisions in this State such a defence could not be sustained in justification of a forcible eviction of one in the actual, peaceable possession of real estate, ” citing Reeder v. Purdy et ux., and Farwell v. Warren, supra. While no question seems to have been made about it, the court clearly recognizes the right to defend under a plea of liberum tenementum, where the facts will warrant such a defence. Illinois and St. Louis Railroad Co. v. Cobb, 68 Ill. 53, was another aggravated case of forcible entry, and throws no light on the present ease. In the case reported in 94 Ill. 67, between the same parties, the doctrine is announced “that if a party in possession of real estate is wrongfully ousted by another, the latter can not by such wrongful act acquire a possession which it will be a trespass in the former to disturb, provided the re-entry of the person so wrongfully ousted involves no breach of the peace.” What is here said is certainly true, and is in perfect accord with what we have said on the subject in' the course of this opinion, but it is not to be reconciled with all that is said in the Reeder case. The only objection to the language above cited is, that it unnecessarily limits, by implication, the principle that the owner whose land is wrongfully withheld by another may peaceably enter upon the occupant, to cases where there has been a forcible eviction of the rightful owner. The principle, as we have already shown, applies to all cases where the owner with a present right of entry is unlawfully kept out of possession. So far as it affects the right of entry by the true owner, so long as that right exists as a remedy, how the wrongful occupant obtained possession is a matter of no consequence. The only limitation upon the right in such ease is that it must be peaceable.

The late ease of Piper v. Connelly et al. 108 Ill. 646, was an action of trespass quare clausum fregit, to which the plea of liberum tenementum was interposed, which was traversed by a replication, and upon the issue thus formed it was held that a freehold was involved. Now, if as matter of law such a plea, when traversed, presents a wholly immaterial issue, the ruling in that case was clearly erroneous, for, in a legal sense, an immaterial issue can involve nothing. We have no reason, however, to question the correctness of that decision.

Upon a careful consideration of the whole case, we are of opinion that the plea in question was a good plea, and that the trial court consequently erred in instructing the jury to disregard it.

The judgments of the lower courts are reversed, and the cause is remanded to the Superior Court for further proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice Craig :

I am not prepared to indorse the

reasoning in this opinion.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Simon Stafford et al. v. Harry Rubens, Admr.

      Filed at Ottawa November 14, 1885.

    1. Negligence—parents permitting child to be upon street—whether under proper protection—applicability of an instruction. In an action by the personal representative of a deceased child to recover damages for causing its death by negligently leaving water pipes in a public street in an unsafe condition, so that one of them rolled over the child and killed it, the defendant asked the court to instruct the jury that if they believed the parents of the child, or either of them, negligently and carelessly allowed a child of the age of three years and five months to go unprotected upon the public street, and without which negligence on their part the injury would not have happened, then they were guilty of such negligence as to defeat a recovery. The evidence showed the child was accompanied by a brother some four years older: Held, as applied to the facts, the instruction was properly refused.
    2. Same—measure of recovery, for causing the death of a child. In an action to recover damages arising from the death of a child of the age of three years and five months, caused by negligence of the defendant, the latter asked the court to instruct the jury that if they believed, from the evidence, that the father and mother of the child were not dependent on her for support, in whole or in part, they could find only nominal damages, which was refused: Held, properly refused. The law implies a pecuniary loss to a father from the death of his minor child for loss of its services, and he may recover compensation under the statute.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G-. Rogers, Judge, presiding.
    Mr. R. W. Smith, for the appellants.
    Mr. John McG-affey, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment in favor of the plaintiff, entered upon a verdict. The action was to recover damages for the killing of a child three years and five months old, alleged to have been occasioned through the defendant’s negligence in leaving water pipes in a street in an unsafe condition, from the rolling over of one of which upon the child, it was killed.

The only errors of law insisted upon, are in refusing to give the following instructions asked by the defendants:

“1. If the jury believe, from the evidence in this case, defendants’ teamsters, O’Donnell and Brophy, unloaded the pipes at the place testified to, and protected the pipes by placing a brick in front of the pipe nearest the ditch, and that said pipes remained in the position where they were left, for twenty-four hours or more, and would have continued to remain on the spot where they were left by said teamsters if not disturbed by some outside force, and if the jury further believe, from the evidence, that said pipes were disturbed by the deceased, or by some persons other than said teamsters or the defendants, and that such disturbance caused the pipes to roll upon and kill the deceased, then the plaintiff in this suit can not recover.
“5. If the jury believe, from the evidence, that the parents of the deceased, or either of them, negligently and carelessly allowed a child of the age of three years and five months to go unprotected upon the public street, and without which negligence on their part the injury w7ould not have happened to her, then they were guilty of such negligence in the care of said child as will prevent a recovery in this suit, unless the jury believe, from the evidence, that the injury was caused by the willful, intentional or wantonly reckless acts of the defendants or their teamsters.
“6. In this case, if the jury should find the defendants guilty, they can only assess such damages in favor of the plaintiff as the evidence in the case will warrant, by reason of the death of Mary Schock. And if the jury find, from the evidence, that the father and mother of Mary Sehock were not dependent on her for support, in whole or in part, then the jury can only find nominal damages against the defendants.”

The court did give this instruction asked by the defendants, viz:

“3. If the jury believe, from the evidence, that the teamsters, O’Donnell and Brophy, left the pipes in question upon the street, and so secured and protected that they would have remained there unless disturbed by some considerable force, they exercised all the care and prudence that could be required of them; and if the jury belieye, from the evidence, that they did exercise such care and prudence, then the plaintiff in this suit can not recover, and the verdict must be for the defendants. ”

The first refused instruction, so far as entitled to be given, was substantially embraced in this one, which was given, and so there occurred no error in the refusal of it.

As respects the second above instruction refused, the evidence shows the deceased was accompanied by a brother some four years older, and as applied to the evidence, we think there was no error in the refusal of the instruction. In City of Chicago v. Hesing, 83 Ill. 204, the allowing a child four years of age to go upon the streets unaccompanied by any one, was held not to be negligence to debar a recovery,—. the child falling into a ditch and getting drowned.

The other refused instruction stands condemned by the authority of that case, where it was held that “where the deceased was a minor, and left a father who would have been entitled to his services had he lived, the law implies a pecuniary loss for which compensation under the statute may be given. ”

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Emeretta A. Gibson v. Charles C. P. Holden.

      Filed at Ottawa November 14, 1885.

    1. Party WAliE—agreement to pay half the cost—whether a covenant running with the land. A and B, the owners of adjoining lots, made a written agreement that A, in the erection of a building on his lot, might place one-half of the wall upon the lot of B, suitable for a party wall, which should continue such forever, to be kept, maintained, repaired and rebuilt at the equal joint expense of both. The agreement also provided that A should, in the first place, build and pay for the wall, and that before B should use the same, or any part thereof, he should pay A the cost of one-half of the wall, and that the provisions of the agreement should be taken as covenants running with the land, and binding upon the executors, heirs, devisees and assigns of the parties, and all persons having, at any time, any interest or estate in said lots: Held, that the agreement of B to pay A one-half of the cost of the wall was not a covenant running with the lot of A, but was personal to A, and that he, and not his assignee, was entitled to receive the sum due from B for his part of the cost, and that the wall, when completed, became the property of each, although A had the right to retain possession of the whole as a security for the payment of the sum due him.
    2. Land covered by a party wall remains the several property of the owner of each half, but the title of each owner is qualified by the easement to which the other is entitled, of supporting his building by means of the half of the wall belonging to the other; and this is all that either can convey.
    3. Covenant—running with the land. Where a covenant is not of such a nature that the law permits it to be attached to the estate as a covenant running with the land, it can not be made such by agreement of the parties.
    4. Whether a covenant will or will not run with the land, does not so much depend on whether it is to be performed on the land itself, as on whether it tends, directly or necessarily, to enhance its value or render it more beneficial or convenient to those by whom it is owned or occupied. If this be so, every successive assignee of the land will be entitled to enforce the covenant.
    5. Where, however, the covenant relates to matters collateral to the land, its operation will be confined strictly to the original parties to the agreement.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

      Charles C. P. Holden. and Thomas B. Armstrong, being the owners of adjoining lots in the city of Chicago, on the third day of July, 1872, executed a party-wall agreement, under their respective hands and seals, as follows:
    “This agreement, made this third (3d) day of July, A. D. 1872, between Charles C. P. Holden and Thomas B. Armstrong, of the city of Chicago, in Cook county, in the State of Illinois, witnesseth: That whereas, said Holden is the owner of lot twelve (12), and the said Armstrong is the owner of the adjoining lot eleven (11), in E. K. Bogers’ subdivision of lots one (1) and two (2), in block five (5), in Duncan’s addition to Chicago, and block one (1) in the canal trustees’ subdivision of the west half and the west half of the northeast quarter of section seventeen (17), in township thirty-nine (39), north, range fourteen (14), east of the third (3d) principal meridian, and said Holden is about to erect a building upon his property, and said parties are anxious to have a party wall on the line of and resting one-half thereof on the property of each of them; they therefore agree that said Holden may, in the erection of the improvements on his property, place one-half in width of the wall of his building upon the property of said Armstrong, that said wall shall be suitable for a party wall, and shall continue to be a party wall forever. And the said Holden and Armstrong agree to keep, maintain, repair and rebuild said wall, whenever necessary, at the equal joint expense of each. Said wall, when first built, is to be built and paid for by said Holden alone, and whenever said Armstrong uses all or any part of said party wall, he shall first pay to said Holden the cost of one-half of the part of the said wall, such cost to be computed upon the basis of $15 per M. for brick, $20 per cord for rubble stone, $27 per cord for second-course dimension stone, and $32 per cord for lower-footing dimension stone, and eighty-eight cents per foot for coping laid in said wall. The quantity of each kind of material in the half of the said wall shall be fixed upon by the certificate of the architect and builder of said Holden, if he can produce the same; if not, then such quantities may be fixed upon by arbitrators chosen by each party; but in all cases, said Armstrong shall not use said wall, or any part thereof, until he has actually paid the said Holden for the one-half thereof. The provisions of this agreement shall be deemed and taken to be covenants running with the land, and shall be binding upon the executors, heirs, devisees and assigns of said parties, and shall bind all persons having, at any time, any interest or estate in said land.”
    This agreement was duly recorded in the recorder’s office of Cook county, on July 17, 1872.
    After the execution of the agreement, Holden built and paid for the wall therein provided for. Some time subsequently he conveyed his lot, by two deeds of trust, to William H. King, as trustee, and King thereafter conveyed the lot to Emeretta A. Gibson,'who now owns it. The title to Armstrong’s lot became vested, by mesne conveyances, in John H. Kedzie, prior to the date of the filing of the bill herein. Kedzie desiring to build on his lot, and to use a portion of the party wall, filed a bill in the circuit court, making Holden and Mrs. Gibson parties defendant thereto, and setting forth the fact of his purchase of the Armstrong lot, and the party wall agreement, and that said Holden and Mrs. Gibson both claimed the money due under the party wall agreement, and that he was in doubt as to which of them was rightfully entitled thereto, and asking that they be required to interplead, and litigate between themselves as to which of them should receive the same. Answers and replications were duly filed, and on a preliminary hearing the value of the portion of the wall which Kedzie proposed to use was found to be $1378.28, which sum Kedzie deposited with the clerk of the court. This money was claimed by Holden, who remains the owner of the party wall agreement, and who has kept the one-half of the wall resting on Kedzie’s lot insured continuously for his benefit, and by Mrs. Gibson as the owner of the Holden lot. On the final hearing the court found that Mrs. Gibson was entitled to the money, and a decree was entered directing the payment thereof to her by the clerk of the court, from which decree Holden prosecuted his appeal to the Appellate Court for the First District. That court, on hearing, reversed the decree of the circuit court, and remanded the cause, with directions to the circuit court to enter a decree directing the payment to Holden of the money paid into court by Kedzie. This appeal is from that judgment. The controversy is between Holden and Gibson, alone, Kedzie having admitted his liability to pay the one party or the other, and in conformity with the order of court paid his money into court. Errors are assigned presenting the questions discussed in the opinion.
    Messrs. King & Packard, for the appellant:
    The legal effect of the agreement, when performed, is to give to each of the parties an easement on each other’s lot for the support of their respective buildings, which became appurtenant to their several estates, and as such passed with the estates. Roche v. Ullman, 104 Ill. 11; Keteltas v. Penfold, 4 E. D. Smith, 122; Savage v. Mason, 3 Cush. 504; Maine v. Cumston, 98 Mass. 317; Standish v. Lawrence, 111 id. 111; Dorsey v. Railroad Co. 58 Ill. 68; Hydraulic Co. v. Williams, 66 id. 397; Ringe v. Baker, 57 N. Y. 209; Giles v. Dugro, 1 Duer, 331; Weyman’s Ex’rs v. Ringold, 1 Bradf. 40; Hamilton v. Wilson, 4 Johns. 72; Hurd v. Curtis, 19 Pick. 462; Platt v. Eggleston, 20 Ohio St. 419.
    Any deed that conveys the land will pass the covenants running with the land. McConnell v. Reed, 4 Scam. 121; Butterfield v. Smith, 11 Ill. 486; Dorsey v. Railroad Co. 58 id. 67.
    All covenants which relate to land, and which are for its benefit, run with it, and may be enforced by each successive assignee into whose hands it may come. Hydraulic Co. v. Williams, 66 Ill. 397.
    Mr. Charles F. White, and Mr. M. L. Wheeler, for the appellee:
    The agreement for the payment of the money advanced hy Holden to build Armstrong’s half of the wall, was not a covenant running with Holden’s lot, as a benefit thereto. Bally v. Wells, 3 Wils. 29; Vernon v. Smith, 5 B. & Aid. 1; Spencer’s case, 5 Rep. 16 ; Joy v. Penny Savings Bank, 115 Mass. 60 ; Weld v. Nichols, 17 Pick. 543; Hurd v. Curtis, 19 id. 459; Wheeler v. Schad, 7 Nev. 204; 1 Washburn on Real Prop. 436-438; 2 id. 263; Cole v. Hughes, 54 N. Y. 444; Hart v. Lyon, 90 id. 663; Block v. Isham, 28 Ind. 37.
    The obligation of all contracts is ordinarily limited to those hy whom they are made, and if privity of contract be dispensed with, its absence must be supplied by privity of estate. Spencer’s case, 1 Smith’s Lead. Cas. 168; Webb v. Russell, 3 T. R. 393; Keppel v. Bailey, 2 M. & K. 517.
    If the covenant be not of such a nature that the law permits it to be attached to the estate, it can not become so by agreement of the parties. 1 Washburn on Real. Prop. 438; Masury v. Southworth, 9 Ohio St. 340; Glenn v. Canby’s Exr’s, 24 Md. 127.
    If the covenant to pay was beneficial to Holden without his continuing to be owner of the lot, it was a mere personal covenant, which his grantee could not enforce. Vernon v. Smith, 5 B. & Ald. 1; Platt on Covenants, 534; 1 Washburn on Real Prop. 433; Cole v. Hughes, 54 N. Y. 444; Hart v. Lyon, 90 id. 663; Wiggins Ferry Co. v. Railway Co. 94 Ill. 95 ; Fitch v. Johnson, 104 id. 111.
    In order to make a covenant run with the land, its performance or non-performance must affect the nature, quality or value of the property demised, independent of collateral circumstances, or must affect the mode of enjoyment. Taylor on Landlord and Tenant, (2d ed.) 157, 261; Masury v. Southworth, 9 Ohio St. 340; Wiggins Ferry Co. v. Railway Co. 94 Ill. 91.
    They must affect the land or the mode of occupying and enjoying it immediately, and not remotely. Mayor of Congleton v. Patterson, 10 East, 130; Sheppard’s Touchstone, 161; 2 Greenleaf’s Cruise on Real Prop. 753, note.
    The right to demand payment of the money for Armstrong’s half of the wall, did not pass as an appurtenance to the Holden lot by his deed to King, and King’s deed to Mrs. Gibson. Harris v. Elliott, 10 Peters, 25; 3 Washburn on Real Prop. 340, 341; Woodhull v. Rosenthal, 61 N. Y. 382; Doliff v. Railroad Co. 68 Maine, 173; Bliss v. Kennedy, 43 Ill. 67.
    The rule is well settled that only such things pass by deed, as appurtenant to real estate, as are necessary to the enjoy: ment of the estate conveyed. 3 Washburn on Real Prop. 340.
    As incident to the grant of an easement, nothing passes but what is requisite to the fair enjoyment of the easement. Lyman v. Arnold, 5 Mason, 198; Ballard v. Tyson, 1 Taunt. 279; Cowlin v. Higginson, 4 Mees. & W. 245; Pomfret v. Becroft, 1 Sandf. 321.
    The only easement attached to a party wall is the easement of support. Ingalls v. Plamondon, 75 Ill. 118.
    The party wall, when constructed, became, under the terms of the agreement, and by operation of law, a part of the realty of Holden and Armstrong, and they owned the same, not as tenants in common, but in severalty. Each had title in severalty to the one-half on his lot, with an easement of support in the other half. Matts v. Hawkins, 5 Taunt. 20; Cubett v. Porter, 8 B. & C. 257; Block v. Isham, 28 Ind. 37; Ingalls v. Plamondon, 75 Ill. 118; Hedricks v. Stark, 37 N. Y. 108; Eno v. Del Vecchio, 4 Duer, 61; Sherred v. Cisco, 4 Sandf. 480; Thompson v. Summerville, 16 Barb. 473; Partridge v. Gilbert, 15 N. Y. 614; Brooks v. Curtis, 50 N. Y. 639; Joy v. Penny Savings Bank, 115 Mass. 60; Goodrich v. Lincoln, 93 Ill. 359.

      The agreement to pay the money advanced by Holden for Armstrong to build his half of the party wall, was a personal contract with Holden, and the right to enforce it is a chose in action, and was incapable of assignment, and did not pass by Holden’s conveyance to Mrs. Gibson. Cole v. Hughes, 54 N. Y. 444; Hart v. Lyon, 90 id. 663; Todd v. Stokes, 10 Pa. St. 155; Gilbert v. Drew, id. 219; Dannaker v. Riley, 14 id. 436.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The language of this agreement very clearly shows that this wall was built as a party wall, and to remain such. It says, after the recitals showing the intention of Holden to build the wall, and the mutual desires of the parties that it shall be a party wall on the line between their lots, one-half of the wall resting on the ground of each:. “They therefore agree that said Holden may, in the erection of the improvements on his property, place one-half in width of the wall of his building upon the property of said Armstrong, that said wall shall be suitable for a party wall, and shall continue to be a party wall forever.” The word “continue,” manifestly means from the time of the building of the wall, for there is no other period indicated to which it can have reference. This view is confirmed by the further language, “and the said Holden and Armstrong agree to keep, maintain, repair and rebuild said wall.” When? The language of the agreement, continuing, answers, “whenever necessary,”—that is to say, at any time from the building of the wall,—and this is to be done “at the equal joint expense of each.” Had it been intended that the ownership of the wall should be in Holden until such time as Armstrong should pay him for one-half, it would have been the duty of Holden, alone, until that time, to have kept, maintained, repaired and rebuilt the wall; and we are bound to presume that had such been the intention, -language expressing that the wall should be a party wall when or on condition that Armstrong should pay for one-half, and that thereafter the wall should be kept, maintained, repaired and rebuilt at the equal joint expense of each, would have been used instead of that which was used. The sharing of the burdens of repair, rebuilding, etc., jointly, is an obvious result of a joint title or ownership, and could never be presumed, in the absence of language admitting of no other reasonable construction, as intended to apply to property whereof the title or ownership was in but one of the parties.

While, however, it is clear that the title or ownership of the wall is joint the moment it is built, and that it so continues, it is also clear that in order to secure Holden for his advances on the joint account 'in building the wall, the sole possession of the wall shall be in Holden, alone,—or, in other words, that Armstrong shall not be allowed to use the wall until he shall repay those advances. Armstrong has title to one-half the wall, but Holden retains the possession of the whole, as a security for his debt. There is no language.used applicable to a sale. When Armstrong desires to use the wall, he is not to pay for one-half its value, or a sum to be agreed upon as the price of one-half of the wall, as we should expect in case of a sale,—he is simply “to first pay to said Holden the cost of one-half part of said wall. ” Holden’s necessities for the immediate use of the wall are such that he is willing and consents to loan, in effect, to Armstrong, so much money for that indefinite time. /Cases, therefore, where parties are, by the deed under which they take title, given one-half of a wall as a party wall when or upon condition of making payment, and cases in which the owner of one lot has licensed the owner of the adjoining lot to build a wall for himself, resting one-half of it on each lot, and reserving the privilege of thereafter purchasing one-half the wall as a party wall, are not analogous. In all .such cases the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passing, by every conveyance of it, until a severance of the half by the payment of the purchase money. The sale of the half of the wall does not occur, nor the title to it pass, in those cases, until the payment is made; and so necessarily it is, constructively, a sale by the assignee of so much of the wall. His right to the purchase money is not because he is the assignee of a covenant running with the land, but because he is the vendor of so much of the wall. , Such, in effect, as we understand them, are Weyman’s Executors v. Ringold, 1 Bradf. 41, Maine v. Cumston, 98 Mass. 317, Burlock v. Peck, 2 Duer, 90, and Keteltas v. Penfold, 4 E. D. Smith, 122, cited and relied upon by counsel for appellant; and without pausing here to analyze carefully each of those cases, we content ourselves by saying that if we have misapprehended the scope and effect of these decisions, or either of them, in this respect, and it shall be found that it has been ruled holding that the right to receive payment for the construction of so much of the party wall as rests upon the lot of another passes as appurtenant to the adjoining lot of the builder, by his conveyance of that lot, then, for the reasons hereinafter stated, we do not concur with such reasoning, nor recognize it as obligatory upon us to adopt and follow it in the present case. We said in Ingals v. Plamondon et al. 75 Ill. 123: “Land covered by a party wall remains the several property of the owner of each half, but the title of each owner is qualified by the easement to which the other is entitled of supporting his building, by means of the half of the wall belonging to his neighbor.” We then referred to authorities in vindication of the principle, and we presume its accuracy is not questioned.

All, therefore, that Holden could have conveyed to another was the title to his lot, and the easement in the half of the wall resting upon the lot of Armstrong for the support of his half of the wall. We think it quite clear, from the language of the agreement, that it was never intended that more than this should pass by any conveyance of the lot of Holden. Counsel for appellant, however, contend that the concluding paragraph of the agreement shows that it was intended that the right to receive payment for constructing the half of the wall resting on the lot of Armstrong should pass by conveyance as an appurtenant to the lot of Holden. That paragraph reads: “The provisions of this agreement shall be deemed and taken to be covenants running with the land, and-shall be binding upon the executors, heirs, devisees and assigns of said parties, and shall bind all persons having at any time any interest or estate in said land. ” It must be apparent to all that this language was not intended to be taken literally, for it would be absurd to suppose that an assignee of Armstrong’s lot should be bound for the payment of the one-lialf of the cost of the wall resting on that lot after the amount had once been paid. And it would seem equally apparent that it could not have been intended that payment should be made to the lot owner, as such, unless the payment would necessarily have the effect to benefit the lot in some way. Unless such a payment, or rather a payment having such an effect, was intended, there is no conceivable reason why Holden should have desired that one debt rather than another should be paid to his assignee. If the debt could not have that effect, why should he want it transferred to his assignee at all ? Why should a debt be transferred by a sale of real estate, unless of that character that it would necessarily affect the value or quality or the enjoyment of the real estate ? Moreover, where the covenant is not of a nature that the law permits it to be attached to the estate as a covenant running with the land, it can not be made such by agreement of the parties. Masury v. Southworth, 9 Ohio St. 340; Glenn v. Canby’s Executors, 24 Md. 127; Bree v. Marshall, 3 C. E. Greene, 337; 4 id. 537; Notes to Spencer’s case, vol. 1, pt. 1, Smith’s Leading Cases, (7th Am. ed.) 168.

Our conclusion therefore is, that the fair construction of this clause of the agreement will not warrant us in holding that it was intended the right to receive payment for the half of the cost of the wall should pass by a conveyance of Holden’s lot, unless the language of the former part of the agreement is susceptible of that construction, and that it was only intended by this clause that such covenants should run with the land of both parties, or of either party, as were, when considered with reference to their subject matter, practically adapted to the accomplishment of that end, and susceptible, ¡legally, of being enforced as such. It is said by the editors of Smith’s Leading Cases, in the notes to Spencer’s case, vol. 1, pt. 1, (7th Am. ed.) p. 219: “Whether a covenant will or will not run with the land, does not so much depend on whether it is to be performed on the land itself, as on whether it tends directly or necessarily to enhance its value or render it more beneficial or convenient to those by whom it is owned or occupied, for if this be the case, every successive assignee of the land will be entitled to enforce the covenant. ” And the same authority also says, page 217: “When, however, the covenant relates to matters collateral to the land, its operation will be confined strictly to the' original parties to the agreement.” This doctrine received the approval of this court in Wiggins Ferry Co. v. Ohio and Mississippi Ry. Co. 94 Ill. 95. Applying the principle here, it seems impossible to hold that the right to receive payment for the cost of one-half the Avail ran Avith the land. One easement was, undoubtedly, the consideration of the other. The party wall was to be built at the joint expense of the lot owners, but by what particular person the materials Avere to be procured and brought upon the ground, and the mechanical operation of laying up the wall performed, or by whom this was to he superintended, or by whom the money was to be advanced to make payments, were questions entirely independent of and apart from the ownership of the wall and the character of easement which the lot owners had in the part of the wall resting on the lots of each other. The materials might have been furnished, the wall built, and the entire amount paid therefor advanced by a stranger. This was the mere furnishing of so much materials and doing of so much work for so much money, or the advancing of so much money to be repaid again, and created only the relations of employer and employe, and borrower and lender. The fact that Holden was furnishing materials and doing work for himself on his half of the wall, could, by no reasonable construction, affect his relations in regard to the other half of the wall which he was building for Armstrong. There is no claim that the money to be paid by Armstrong, or for his half of the wall, was to be expended upon the lot of Holden, or upon the wall generally, or that it was to be used in any particular way. As to Holden, the money, when collected, would be like all other money. An assignee would be no more benefited by receiving this money than by receiving money from any other source, or on any other account. To benefit him as land owner, it must in some way affect the value or the use of the land. It is not enough that it simply enriches the assignee by that many ■dollars. Whether' this money should be paid or not, the •condition of the wall and of the lot of Holden would remain, in every respect, precisely the same. It would be difficult to give a better illustration of a purely collateral contract or covenant, so far as Holden’s rights are affected, than this undertaking to pay for the cost of one-half of the wall.

The identical question here presented was before the Court of Appeals of New York, in Cole v. Hughes, 54 N. Y. 444, and Hart v. Lyon, 90 id. 663, and before the Supreme Court of Indiana, in Bloch v. Isham, 28 Ind. 37, and those courts ruled that the right to compensation was personal to the builder, and did not pass by a grant of his land. The same thing, in principle, was also ruled by the Supreme Court of Massachusetts, in Weld v. Nichols, 17 Pick. 538, Joy v. Boston Penny Savings Bank, 115 Mass. 60, and by the Supreme Court of Pennsylvania, in Davis v. Harris, 9 Pa. St. 503, Gilbert v. Drew, 10 id. 219, Todd, v. Stokes, id. 155, and Bell v. Bronson, 17 id. 363.

Counsel for appellant object that the Pennsylvania eases are predicated upon a statute passed in 1721, which provides “that the first builder shall be reimbursed for one moiety of the charge of the party wall, or for so much as the next builder shall use, before he .breaks into the wall. ” We agree with the courts in Cole v. Hughes and Block v. Isham, supra, that there is nothing in the statute that is not in the agreement in the present case. The statute gave, as the agreement here gives, the right to compensation, and the courts hold that it is not of such a nature as to pass by a grant of the land. See, also, 2 Washburn on Beal Property, 262, 263.

Counsel for appellant strenuously insist that the ruling in Roche v. Ullman, 104 Ill. 11, authorizes the plaintiff here to recover. We do not think so. That case shows that had an action been brought against ICedzie, he would have been held liable, but it goes no further. Kedzie took under the agreement and with notice of it, and before he can have the benefit of the agreement he must comply with its terms. His lot is charged with the burden of paying,—that is, in the sense that the wall can not be used for the benefit of his lot until he does pay; but that burden is not to be discharged for the benefit of the adjoining lot, or so, in anywise, to affect it. Like a mortgage or deed of trust, the land is, in the sense mentioned, burdened with the payment of a debt, but its payment affects no other land beneficially.

We see no cause to disturb the judgment of the Appellate Court. It is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Elizabeth Kauffman v. Jonathan Peacock et al.

      Filed at Ottawa November 14, 1885.

    1. Do WEB—inchoate right—of its nature, and how terminated—surplus after sale on foreclosure. The inchoate right of dower does not become property, or anything more than an expectancy, at any time before it is consummated by the husband’s death. And if real estate of which her husband was seized, is sold under a deed of trust in which the wife unites with her husband and releases her dower, the surplus proceeds of the sale, after satisfying the debt secured, becomes the personal property of the husband, and her inchoate right of dower in the property is terminated.
    2. And any surplus arising from the sale, left after paying the mortgage debt, becoming the personal property of the husband, if living, is liable, as such, to be taken by his creditors the same as personal property acquired by him from an;r other source.
    3. Same—section 5 of the Dower act. The statute (section 5 of the Dower act,) giving the wife of a mortgagor the right of dower in the surplus arising from a sale, only when the sale is made after the death of the mortgagor or husband, would seem, by implication, to exclude her right of dower in the surplus when the sale is in the lifetime of the husband.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. J. M. Bailey, Judge, presiding.
    Mr. A. D. Early, and Mr. H. W. Taylor, for the appellant:
    Dower is favored in law. Sisk v. Smith, 1 Gilm. 510; 1 Story’s Eq. Jur. secs. 626-629; In re Cipperly, 44 Barb. 370.
    Inchoate dower is an estate, and the wife can protect it in a court of equity. Buzick v. Buzick, 44 Iowa, 259; Huzleman v. Hazlett, 55 id. 256; Conover v. Porter, 13 Ohio St. 45 ; Huston v. Seeley, 27 Iowa, 197.
    It is such an interest in land as to give the wife the right to redeem. Adams v. Beel, 19 Iowa, 61; Davis v. Witherell, 13 Allen, 66.

      The wife can maintain a bill to remove a cloud from her inchoate right of dower. Madigan v. Walsh, 22 Wis. 478; Weston v. Weston, 36 id. 134.
    Dower can only be released by the death or voluntary act or laches of the wife or widow. Atkins v. Merrill, 39 Ill. 75; Gore v. Cather, 23 id. 541; Ex parte McElwain, 29 id. 442.
    The release of dower in a mortgage is in favor of the mortgagee and his privies, and no others. The release is only to the extent of the mortgage debt. Blair v. Harrison, 11 Ill. 384; Smith v. Eustis, 7 Me. 43; French v. Crosby, 16 id. 503; Peabody v. Patten, 2 Pick. 520; Ridgeway v. Mosting, 23 Ohio St. 296; Ketchum v. Shaw, 28 id. 506.
    In joining the husband in the execution of the mortgage, appellant released her contingent right of dower for the single and limited purpose of securing the payment of her husband’s mortgage debt, retaining her right of dower in the surplus land, or, if all the land should be sold under the mortgage, in the surplus proceeds of the land, such surplus proceeds standing for the surplus land, by virtue of the doctrine of equitable conversion. McArthur v. Franklin, 15 Ohio St. 493; Denton v. Nanny, 8 Barb. 618; Matthews v. Duryea, 45 id. 69; Hawley v. Bradford, 9 Paige, 200; Bank of Ohio v. Hunt, 21 Ohio St. 509; Maloney v. Horan, 49 N. Y. 116; Jacques et ux. v. Ennis, 25 N. J. Eq. 402; Wheeler v. Kirtland, 27 id. 534; Vreeland v. Jacobus, 19 id. 231; De Wolf v. James, 11 R. I. 630; 1 Scribner on Dower, 478, 481, secs. 26-30; Tyler on Infancy and Coverture, sec. 395.
    The wife of a living husband has such an interest in the surplus money arising from the sale of lands of the husband as equity will protect from the claims of the husband’s creditors. Vartie v. Underwood, 18 Barb. 564; Denton v. Nanny, 8 id. 618; Mills v. Van Voorhies, 20 N. Y. 420; Maloney v. Horan, 49 id. 116; Vreeland v. Jacobus, 19 N. J. Eq. 231; Wheeler v. Kirtland, 27 id. 534; De Wolf v. Murphy, 11 R. I. 630; Unger v. Liester, 32 Ohio St. 210.

      Mr. N. C. Warner, Mr. J. 0. Garver, Mr. R. F. Crawford, Mr. G. M. Brazee, and Mr. C. A. Works, for the appellees:
    The sale being made during the life of the husband, the surplus became personal property of the husband. Cook & Sargent v. Dillon, 9 Iowa, 412; Dean v. Phillips, 17 Ind. 409; Wright v. Rose, 2 Sim. & Stu. 323; Newhall v. Lynn Savings Bank, 101 Mass. 428; Jones on Mortgages, secs. 1695, 1684; Bell v. Mayor, 10 Paige, 54; 1 Scribner on Dower, 480.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Elizabeth Kauffman, against Jonathan Peacock and others, creditors of August Kauffman, her husband, for the purpose of securing dower rights in a certain fund which was in the hands of one James Ferguson, who had received the money on the sale of certain premises under a trust deed, which had been executed by August Kauffman and the complainant, his wife, to secure a debt of $3100 due Julius C. Fitch.

The facts, as they appear from the bill, are substantially as follows: On the 5th day of November, 1878, August Kauffman executed and delivered to Julius C. Fitch his note for $3100, payable three years after date, with interest at the rate of ten per cent, payable semi-annually. The note was secured by a trust deed executed by Kauffman and his wife, the complainant, on certain premises in Rockford. On the 22d day of September, 1884, Kauffman, being then involved and unable to pay his debts, left the country, and has not been heard of since that time. Attachments were sued out by appellee and other creditors, and levied upon Kauffman’s equity of redemption in the premises embraced in the trust deed. In the meantime, default having been made in the payment of the principal and interest named in the trust deed, the trustee advertised and sold the property. After the payment of the debt, interest and costs, which amounted to $3596, there remained in the hands of the trustee a surplus arising from the sale, of $3820.06. This sum was at once garnisheed by appellees, creditors of Kauffman, and the complainant, wife of August Kauffman, for the purpose of securing her supposed interest in the fund, filed this her bill in equity.

The complainant, in her bill, sets out the foregoing facts in detail, and prays that one-third of said surplus money arising from the sale of the mortgaged premises be set apart, and invested, under the order and direction of the court, for the benefit of the complainant, and after the death of Kauffman, the actual value of her dower or the income from the third of the fund be paid over to her. The defendants demurred to the bill, which was sustained by the court, and an order entered dismissing the bill. On appeal to the Appellate Court the judgment was affirmed.

On behalf of appellant it is contended, that by joining her husband in the execution of the deed of trust under which the property was sold and the surplus arose, she only released her inchoate right óf dower to the mortgagee, and as the attaching creditors do not claim under the mortgage, she is entitled to be protected in her inchoate dower rights as against them. On the other hand, it is claimed by appellees that where a wife unites with her husband in the execution of a mortgage or deed of trust releasing her inchoate right of dower, and a sale occurs under such mortgage or deed of trust during the lifetime of the husband, the surplus money arising from such sale becomes personal property payable to the husband, and the wife has no interest whatever in it.

The question presented is not entirely free from difficulty. It is one upon which the authorities are not entirely harmonious. Where there has been marriage, seizin, and the death of the husband, the right of dower is complete, and may then be enforced; but where there has been marriage and seizin, and death of the husband has not occurred, an inchoate right of dower only exists. In this case it is clear that appellant had an inchoate right of dower in the equity of redemption of the premises, of which she could not have been deprived by any creditor of her husband if she had paid off the deed of trust; but this she failed to do, and suffered the land to be sold under the deed of trust, and converted into money. Under such circumstances, has she any dower rights in the surplus money arising from the sale? Jones, in his work on Mortgages, in discussing this question, says: “In some cases the courts have gone so far as to protect the inchoate interest of the wife, during coverture, in the surplus arising from a mortgage sale, by permitting her, as against judgment creditors, to have one-third of the residue invested for her benefit, and kept invested during the joint lives of herself and her husband, and the interest paid to her during her own life in case of her surviving her husband. But it would seem doubtful whether a court of equity, in the exercise of its ordinary jurisdiction, has the power to enforce such a doctrine, and the weight of authority is against allowing the wife any such right against her husband’s creditors. ” 2 Jones on Mortgages, (2d ed.) sec. 1694. In Cook & Sargent v. Dillon, 9 Iowa, 412, in a case somewhat analogous, the court held that surplus money in the hands of a trustee, after satisfying the deed of trust, was the personal property of the mortgagor, liable to be seized in payment of his debts. The same doctrine was announced in Dean v. Phelps, 17 Ind. 409, and in Newhall v. Lynn Savings Bank, 101 Mass. 432.

The appellant has cited Denton v. Nanny, 8 Barb. 614, as a leading authority sustaining her view of the case. The decision sustains the position of appellant, and the doctrine announced was approved in Vartee v. Underwood, 18 Barb. 564. The appellant also relies upon Vreeland v. Jacobus, 19 N. J. Eq. 231, Wheeler v. Kirklan, 27 id. 534, DeWolf v. Murphy, 11 R. I. 630, and Unger v. Luster, 32 Ohio St. 210. We are not inclined to follow the rule laid down in the cases found in Barbour’s Reports. The court in which the cases were decided was one of learning and ability, but it was not a court of last resort. The other cases cited and relied upon seem to sustain appellant’s position, but we do not think they are in harmony with the current of authority on the subject. Cooley on Constitutional Limitations, (10th ed.) says: “The inchoate right of dower does not become property, or anything more than a mere expectancy, at any time before it is consummated by the husband’s death. In neither curtesy nor dower-does marriage alone give a vested right. It gives only a capacity to acquire a right.” Here, the husband of appellant was living, and whether the inchoate right of dower would ever become more than a mere expectancy would depend upon the fact,—which might never occur,—that she would survive him; and we think it would be against sound public policy to tie up a fund in the hands of trustees to abide such an uncertain contingency as that relied upon by complainant in her bill. Again, the complainant executed the deed of trust and relinquished all her dower rights, and contracted that the property might be sold and converted into money. It is true, if she had paid off the mortgage, in the event that she survived her husband, she would be entitled to dower in the property; but the effect of her deed was that the real property in which she might be entitled to dower, might be converted into personal property, and when thus converted her inchoate dower rights would terminate.

In our judgment, the surplus money arising from the sale, in the hands of the trustee, was personal assets which belonged to complainant’s husband, upon which she had no claim whatever, and, as such, it was liable to be reached by the creditors of August Kauffman in like manner as personal property which he had acquired from any other source. Land articled to be sold and turned into money is reputed money. (2 Story’s Eq. sec. 1212.) By executing the mortgage and permitting the lands to be sold, appellant consented that the real estate should lose its character as such, and assume the character of personal property, and when it assumed this new character it would be controlled and governed by the laws in relation to personal and not real property. In the Indiana case, supra, it is said: “We do not perceive how Bennett’s wife had any interest in the residue of the money after paying the mortgage debt. She executed the mortgage with her husband; otherwise, had she survived him, she might have been entitled to one-third of the land. But the premises have been sold upon the mortgage to which she was a party. Her right to or contingent interest in the land was gone. The excess of money arising from the sale clearly all belonged to Bennett, and not to his wife, hence it might properly be applied to the payment of his debts.” In the case cited in 101 Mass., the court held that the wife of the owner of an estate subject to a mortgage valid against her, has no rights, as against her husband or his assignee in bankruptcy, in the proceeds of a sale of the estate made by the mortgagee for breach of condition, and under a power in the mortgage deed.

There is another consideration which, in our judgment, gives strength to the view we have adopted in this case. Sections 3, 4 and 6 of our statute entitled “Dower, ” confer upon a widow the right to surplus money arising from the sale of mortgaged premises in certain specified cases. The sections are as follows:

“Sec. 3. Where a person seized of an estate of inheritance in land shall have executed a mortgage of such estate before marriage, the surviving husband or wife of such person shall, nevertheless, be entitled to dower out of the lands mortgaged, as against every person except the mortgagee and those claiming under him.
“Sec. 4. Where a husband or wife shall purchase lands during coverture, and shall mortgage such lands to secure the payment of the purchase money thereof, the surviving' husband or wife shall not be entitled to dower in such lands as against the mortgagee or those claiming under him, although she or he shall not have united in such mortgage, but shall be entitled to dower as against all other persons.
“Sec. 5. When, in either of the cases specified in the two preceding sections, the mortgagee or those claiming under him shall, after the death of such husband or wife, cause the land mortgaged to be sold, either under a power contained in the mortgage or by virtue of the judgment or decree of a court, and any surplus shall remain after the payment of the moneys due on such mortgage and the costs and charges of sale, such survivor shall be entitled to the interest or income of one-third part of such surplus, for life, as dower.”

Dower, in this State, is a common law right, but it has been recognized and extended by the statute, and where the legislature has legislated in regard to a widow’s rights in surplus money arising from the sale of mortgaged premises, we may properly look to the statute as affording some guide, at least, as to a proper decision of a question like the one before us. It will be observed that the right of a wife to share in a surplus, in the two cases specified, is expressly confined to a sale arising after the death of the husband. Is it not a fair construction to be placed upon section 5 to hold that inasmuch as one particular ease is specified in which there may be a dower right in a surplus fund, all others are, by implication, excluded. This would seem to be a reasonable construction of the statute.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.