Frazier v. Caruthers

Gabt, J. On the 8th day of October, 1887, Caruthers demised to Henry Petillon and Sophia Ellers certain premises, part of AArhich, on the 10th day of October, 1888, Petillon, aaTlo alone occupied, sublet to Elmer E. HaAves, who sublet the same to the appellants on the 2d day of November, 1888. The lease by Caruthers contained a covenant against subletting or assigning Avithout Avritten consent, and a clause of re-entry for breach of any coATenant or default in payment of rent. Petillon failed to pay his rent and Caruthers gaAre notice to Petillon and the administrator of Ellers, as provided by Sec. 8, Ch. 80, R. S., Landlord & Tenant; and the effect of it, the rent not being paid, Avas that Caruthers might “ consider the lease ended, and sue for the possession under the statute in relation to forcible entry and detainer, or maintain ejectment Avithout further notice or demand.” He folloAved up the notice by a suit for forcible detainer, to Avhich the appellants were not parties, so that they are not affected by the judgment Avhich he obtained therein on the 28th day of NoArember, 1888. Leindecker v. Waldron, 52 Ill. 283. As a part of that transaction, Avhen that judgment was entered, a stipulation was made, the terms of Avhich, in detail, the record does not show; but by it Caruthers agreed not to proceed upon the judgment until the 6th of December following, and to accept from Petition some property in satisfaction of the unpaid rent, and pay Petition something besides. "When Caruthers served the notice spoken of above, he knew that Petition had sublet portions of the premises without the consent required by the lease, and therefore the service of that notice, which, of itself, was a recognition of a continuing tenancy by Petition, and the effect of which might have been avoided by the payment of the rent within the five days mentioned in it, was a waiver of the forfeiture incurred by the subletting. Woodward v. Cone, 73 Ill. 241; Watson v. Fletcher, 49 Ill. 498; Murray v. Harway, 56 N. Y. 337; 1 Woodfall, L. & T., 322; 2 Taylor, L. & T., Sec. 497. On the 3d day of December, 1883, Caruthers having learned that Hawes was not a party, nor would yield, to the judgment in the forcible detainer suit, made his warrant as follows: “ Patrick Keenan, John Murphy: You are hereby authorized as my agents to take possession of premises known as store numbered 222 South Clark street, and in so doing to expel, remove and put out any person or persons occupying same, using such force as may be necessary so to do, and is granted under lease herein delivered. Yours, M. Cabuthees.” Keenan, Murphy and Caruthers then went to the premises; Caruthers demanded of Petillon possession; he yielded, saying “ all right,” or “ I surrender,” or both; but what then took place can, in no view of the testimony, be regarded as what is known in the law as a surrender by a tenant to a landlord, but only as non-resistance of an expulsion. The appellants were put out under the direction of Caruthers, and sued him, with others, in trespass therefor. They were defeated and appealed. The judgment in the forcible detainer suit did not suspend the freedom of action by Caruthers, to enforce his rights existing' independent of it. Yeates v. Allin, 2 Dana, 134. By the notice he had become entitled to possession. True, the statute assumes that such possession will be obtained by suit; but the common law gives, as the statute of limitation contemplates, wherever ejectment can be maintained, an entry as a concurrent remedy. Wherever there is an abuse of the right of entry by excessive force (and for that purpose all force is excessive) restoration of the possession may be obtained by an action of forcible entry, but trespass qu. cl. will not lie. Harding v. Sandy, 43 Ill. App. 442; Yeates v. Allin, 2 Dana, 134; 1 Hawkins P. C., 495; 3 Bl. Com. 214; 1 Ch. Gen. Pr., 649; 2 Woodfall, L. & T., 740. The same argument that induced the decision to the contrary in Reeder v. Purdy, 41 Ill. 279, has more than once been made and held specious in England. Turner v. Meymott, 1 Bing. 158. The argument that a forcible entry is unlawful because the party ousted may be restored by an action of forcible entry and therefor may maintain trespass, goes too far; leave and license is an answer in trespass, and as indicated in the cases cited, in forcible entry; but why, if the act be unlawful, does consent to it make it law'ful 1 Fabri v. Bryan, 80 Ill. 182, and earlier cases there cited. Such consent is no answer in trespass for an assault. Cooley on Torts, 188. It is illogical to hold that the consent of the wrong-doer is essential to redress of the wrong. To keep the symmetry of the law, leave and license should be held no answer in forcible entry and unnecessary in trespass. The true rule is laid down in Hoots v. Graham, 23 Ill. 81, where it is said í(no case has been referred to, and it is believed none exists, ivhich holds that a trespasser or a person in possession as'a wrong-doer can recover against the owner of the fee, with right of possession. Such a rule would be an end to the enjoyment of property and its protection by judicial determination. It wrould be to hold that actual possession, however acquired, was paramount title.” The experience of the last twenty-five years in this city justifies the statement that also under it blackmail is lawful gain. The acceptance by Caruthers, after his right of possession was fixed, of property from Petition for rent that had accrued, was no waiver of his right to enter. 1 Woodfall, L. & T., 324; 2 Taylor, L. & T., Sec. 499. The view Ave have taken makes it matter of speculation only in this case, yet it is quite singular that no express decision can be found as to the effect of a clause of re-entry upon sub-tenants. The only use of such a clause to enforce a forfeiture for subletting would be against a sub-tenant, and the text books all assume that a careful landlord will put it in his leases. 1 Taylor, L. & T. Sec. 290; 1 Woodfall, L. & T., 310. Yet these auth ors refer to but one case .as their authority for the position that a landlord may eAdct a subtenant under such a clause, and in that case it aatis assumed Avithout question. Arnsby v. Woodward, 6 B. & C. 519; 1 Taylor, L. & T., Sec. 109; 2 Woodfall, L. & T., 265, cited by the latter as Arnold instead of Arnsby. And see Hunter v. Galliers, 2 Term R. 133. But communis opinio is evidence of the law. Amberg v. Philbrick, 33 Ill. App. 200. We have folloAved the points made at the close of the reply brief of the appellants without going OArer the evidence and instructions. We hold that neither of those points is AArell taken, and that the judgment of the Superior Court should therefore be affirmed. When the cause Avas submitted here Malcolm Caruthers was a member of the bar of Chicago, still young, talented, but beyond the need of exertion, surrounded by, and blessed with, all that makes life a pleasure. In an hour, from a condition of apparent health, he sickened unto death. Following the authority of Danforth v. Danforth, 111 Ill. 236, the judgment of affirmance will be entered as of December 3, 1891, the day on which the cause was submitted. • Judgment affirmed.