Dean v. Comstock

Mr. Justice Breese delivered the opinion of the court: This was-an action of trespass guarne clcmsumfregit brought in the Recorder’s Court of the city of La Salle, by the appellee, against the appellant. The locus in quo is described as lots one and two in block seventy-four, in the city of La Salle. The defendant pleaded not guilty and liberum ienementum. The issues were found for the plaintiff and his damages assessed to eighty-five dollars. A motion was made for a new trial, which .was overruled and exceptions taken, and the ease brought here by appeal. It appears by the bill of exceptions that one Heman Baldwin was the owner in fee of these lots, and on the 13th of July, 1857, he executed a bond to Mrs. Ann 0. Wilson in the usual form, to make her a deed of general warranty for them, on condition that she paid two hundred dollars down, which she did pay, two hundred dollars on or before the first day of December then next, four 'hundred and fifty dollars in one year from the date of the bond, and the further sum of four hundred and fifty dollars in two years from the same date, all to bear interest at the rate of ten per centum per annum. This bond was recorded July 14, at which time the obligee with her husband were in the actual possession of the premises, and so remained until some time in the summer of 1858, when they left the premises and removed to Peoria. At Peoria, on the 18th of December, 1858, Wilson and wife, for the consideration . of five dollars, by deed of general warranty with covenants of title and against incumbrances, conveyed the premises to the plaintiff, “subject, nevertheless, to the bond of Heman Baldwin to Ann C. Wilson, the grantor above named.” The plaintiff, about this time, employed one McGin as his agent to take charge of the premises, there being a house one story and a half high on the lots, and a fence around them. McG-in leased the premises to one Fuller, and obtained a policy of insurance on the house in the name of Mrs. Wilson, which was assigned to the plaintiff. Fuller remained in possession until the spring of 1860, paying rent to MeGin as agent of the plaintiff, and when he left he delivered the key of the house to MeGin. MeGin did not go on to the premises after Fuller left. The defendant told MeGin, about the time Fuller left, that he was going to take possession, and knew that MeGin was plaintiff’s agent, and asked him for the key, which he declined giving to him. Defendant knew of plaintiff’s claim of title to the premises. The plaintiff himself was never in possession of the premises. Fuller was the only one in possession as stated. It does not appear that the plaintiff ever paid any taxes on the lots. They went to sale and were bid in by MeGin. It also appeared that on the 15th March, 1860, Baldwin executed a quit-claim deed to the premises, to the defendant and one Blanchard for the nominal consideration of one dollar, and soon thereafter the defendant put one Adgate in possession of the house, and this is the trespass of which the complaint is made. When Adgate went into possession the premises were vacant, the door of the house was unlocked. The defendant put on a new lock and gave his tenant the key; he paid rent to defendant. When defendant sold to Hitt he paid rent to Hitt. Adgate states, when he first went to the premises with defendant, he found the house open, entirely vacant, and no one in possession. It also appeared that Baldwin was a resident all this time of La Salle, and that defendant, as his assignee, had received payment of the two hundred dollar note executed by Mrs. Wilson, as part payment of the premises. The other notes for four hundred and fifty dollars each were due, one on the 13th July, 1858, and the other on the same day in 1859, and had not been paid. Several points are made by the appellant, which it is not necessary to notice in detail, the real question being, has the appellee shown a right to recover in this action ? It is a settled principle in this action, that the plaintiff must have the actual, or constructive, possession of the locus i/n quo. The gist of the action is the injury to the possession. If the premises are actually occupied, the action must be brought by the party in possession; if they are vacant and unoccupied, the party having the legal title has the right of possession, and must brinn the action. Halligan v. Ch. & R. I. R. R. Co., 15 Ill. 560. Did the appellee occupy either of these positions ? The proof is he never, at any time, was in the actual possession himself, and never on the premises. After receiving a deed from the Wilsons, he, by his agent, put a tenant in the house, who paid rent to the agent, and when the tenant left the premises he delivered the key to the agent, after which they were vacant and unoccupied. We can find no case, and we are referred to none, recognizing such facts, as an actual possession, when set up against the entry of the owner of the fee.. Against strangers, having no claim or color of title, they might prevail. When the defendant put a tenant in, the door,of the house was open and the premises were vacant. He entered, claiming the fee, of which he was the legal owner by his deed from Baldwin. The plaintiff, not being in actual possession, had no legal right on which to found the action. Trespass being a possessory action, it is not at all necessary that the right should come in question. But if it does come in question, as it did in this case, by the plea of Ubemtm tenementwn, and the defendant has shown, as he did show, that he owned the premises in fee, he cannot, on any principle of law with which we are acquainted, be rendered responsible to a person having neither a right to the property nor to the possession. Even if he had a naked possession, the owner of the fee had the right of entry, and would not be liable in trespass for exercising the right in a peaceable manner. Agatt v. Wood, 4 Johns. 151; Wilde v. Cantillon, 1 John. Cases, 123; Watton v. File, 1 Dev. & Bat. (N. C.), 568. But it is urged by the counsel for appellee that, being the assignee or grantee of the premises through the deed from Wilson and wife, he had the right of possession. Wilson and wife held but a covenant from Baldwin to make a title on certain conditions, which had not been complied with by them; this contract was executory and gave them no right to enter upon the premises. Cooper v. Slower, 9 Johns. 331; Suffern v. Townsend, id. 35; Erwin v. Olmstead, 7 Cowen, 229. The most that can be implied by such a contract is a permission to enter while the conditions are maturing, as a tenant at will, and occupy as such. When the Wilsons abandoned the premises and removed to Peoria, this implied permission to occupy, expired, and they could not transfer it to their grantee. All that the plaintiff got by this transfer from the Wilsons was the right to pay the money due for the premises, and to demand a deed from Baldwin. Hot having done so, not having complied with the terms of purchase, Baldwin was at liberty to treat the contract as rescinded, and regain the possession by an action” of ejectment, and no demand of possession or notice to quit would be necessary. Prentice v. Wilson, 14 Ill. 93. If their ejectment could be without a demand of possession, or a notice to quit, what should prevent the grantee of the real owner from taking peaceable possession of the premises when abandoned and left vacant ? If the owner of the equitable title wishes still to perform the contract, by paying the balance of the purchase-money, he is at perfect liberty to do so, and on a proper case made, chancery would decree the title to him. His ease would not be weakened in the least degree by being out of possession pendente lAte. The plaintiff, appellee here, having shown neither an actual nor constructive possession to these premises, and the defendant, justifying his entry under a plea of title in himself, and having established it on the trial, he should have had the verdict. The • plaintiff, at least, had but a bare equity, which could not avail him in an action at law. These views dispose of the instructions and render unnecessary a special reference to them. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Judgment reversed. Mr. Justice Walker concurred. Mr. Chief Justice Catos dissented.