Sands v. Kagey

Mr. Justice Craig delivered the opinion of the Court: The bill of exceptions does not show that the defendants excepted to the decision of the court overruling a motion for a new trial, and it is claimed that this court, in the absence of that fact from the bill of exceptions, will not review the decision of the circuit court. Section 61 of the Practice act provides: “Exceptions taken to the decisions upon the trial of causes in which the parties agree that both matters of law and fact may be tried by the court; and in appeal cases, tried by the court without the intervention of a jury, shall be deemed and held to have been properly taken and allowed; and the party excepting may assign for error before the Supreme Court any decision so excepted to, whether such exception relates to ^receiving improper or rejecting proper testimony, or the final judgment of the court upon the law and evidence.” Under this statute no motion for a new trial was required: The bill of exceptions shows that the defendants excepted to the judgment rendered by the court in favor of the plaintiff, and that was all that was required to entitle them to review the judgment on appeal or writ of error. Moreover, we regard the question settled by former decisions. Metcalf v. Fouts, 27 Ill. 113; Mahony v. Davis, 44 id. 289; Jones v. Buffum, 50 id. 278. It is also contended, that as plaintiff established the legal title to the premises, he was entitled to recover although there might be an equity in the defendants. The general rule is, that in ejectment the legal title must prevail. But that is not always the case. The landlord, although the owner of the fee, can not recover against his tenant occupying under a lease, when there has been no forfeiture of the conditions of the lease. So an assignee of a note secured by mortgage, in possession of the mortgaged premises, can not be turned out of possession in an action of ejectment brought by the mortgagor, as held in Kilgour v. Gockley, 83 Ill. 109. In the same ease it was also held that ejectment can not be maintained against an occupant of real estate so long as he is lawfully in possession. So in Cobb v. Lavalle, 89 Ill. 331, it was held that a plaintiff in ejectment can not recover, although he has title, when the legal right to the premises was in another. In Stow v. Russell, 36 Ill. 20, it was held that the action of ejectment proceeds for the possession of the premises, claiming that they have been unlawfully entered into and injuriously withheld. Pacts which go to disprove this make a legal defense. It was also held, where a party has entered into possession under a. contract of purchase, made valuable improvements, paid taxes, exercised acts of ownership over the property, and paid the amount contracted to be paid, they are facts which may be proven, and amount to a defense in an action of ejectment brought by the vendor against the vendee. Here the vendee entered into possession under a bond for a deed, made valuable improvements, and the consideration for the premises described in the bond has been fully paid. The possession of the defendant being lawful, we perceive no principle under which the vendor, or a purchaser from the vendor, can recover in an action of ejectment. In other words, a vendee in pos-session under a w'ritten contract which he has fully performed, may hold the possession of the premises as against the vendor. Fleming v. Carter, 70 Ill. 288. Some importance is sought to be placed on the fact that the railroad company delayed entering upon, the land from 185é to 1872. The vendor, so far as appears, never found any fault with the vendee on account of the delay, and the delay is a matter that does not concern plaintiff, as he acquired no rights in the property until long after the railroad company entered into possession of the premises under the bond for a deed. The plaintiff was not an innocent purchaser. When he purchased, the defendant was in possession, and the possession was notice of the title held by the railroad company. The judgment of the circuit court will be reversed and the cause remanded. Judgment reversed.