Rutter v. Maher

Mr. Presiding Justice Smith delivered the opinion of the court. Appellants contend that upon the death of Mary McDonnell, the sole defendant, this action abated. The action of forcible detainer, while not a common law action, is an action at law relating to real property. St. Louis Stock Yards v. Wiggins Ferry C.o., 102 Ill. 514, 520. As such we think it falls within the provisions of sections 11 of chapter 1, entitled Abatement, of the Revised Statutes. In Gruyer v. Wookey, 18 Ill. 536, the court held that the action of ejectment survived under this section of the statute, although at common law the action did not survive. At page 538 of the opinion the court say: “The only inquiry is,- as we have said, as to the survivor of the right,— whether that be title or possession,—and to whom it belongs, in order to substitute a plaintiff. And to know who shall be summoned as defendant, we inquire upon whom the law casts the right claimed in the action, or the responsibility of answering for the sum of money or damages to be awarded plaintiff in the action. Where no one is entitled to the one, nor liable to the other, the cause of action does not survive. But where both are true in law and fact, the action survives to the party next entitled, and against the party next liable, as claimant of the specific thing in dispute, or the estate out of which the recovery is to be satisfied. “Testing the case upon these plain principles and we have no difficulty in finding the heir of a sole defendant, a proper substitute in an action of ejectment, in which his title, as heir, and that of his ancestor, are both in issue. Were a new suit brought against him, as heir, no more or less would be put in issue if he contested the plaintiff’s title. If he do not he may renounce as well under the revival as upon a new suit. “So under every aspect of the case, and, without violating any of the old technicalities or analogies of the common law, in principle, we think this action now survives as well against the heir of a sole defendant as against surviving defendants.” So here, in this statutory action at law, where the right of possession is involved as in ejectment, no reason is apparent why under the section of the statute above cited, the action of forcible detainer should not survive as well against the heirs of a sole defendant as the action of ejectment, for which it is a substitute, or additional remedy, in certain cases provided in the statute. Nothing could be gained, and no right would be subserved by requiring the plaintiffs to dismiss the action against Mary McDonnell, and compelling, them to commence a new suit against the appellants. The evidence is undisputed that Mary McDonnell leased the premises from appellees and paid rent for and occupied the premises under the lease; that after the expiration of the lease a written demand was made upon her to deliver up the possession thereof and that she refused to surrender the possession, and that she remained in possession until her death. It also appears that appellants are the heirs of Mary McDonnell and that they lived with her on the premises up to the time of her death, and that they continued to occupy the premises after her death, refusing to vacate the same. Appellants are bound by the covenants of the lease and have no other or greater rights than Mary McDonnell had at the time of her death. Hence appellees have the right to bring an action against them of forcible detainer for the possession of the premises, and in our opinion the case falls within the letter and intent of section 11 of the Abatement Act, and appellants were properly brought before the court in this action. Under the facts shown in the record appellants are in possession of the premises in question under Mary McDonnell and must surrender possession to her landlords. Their refusal so to do makes them liable in this action, her right of possession having been terminated prior to her death. Hardin v. Forsythe, 99 Ill. 312-321; Doty v. Burdick, 83 id. 473-478; Cox v. Cunningham, 77 id. 545. The trial court did not err in refusing to give the peremptory instruction requested by appellants, for no defense to the action was shown by the competent evidence offered. For the same reason the court did not err in giving to the jury the peremptory instruction in favor of the plaintiffs. There is no evidence in the record on which in the eye of the law the jury could reasonably find in favor of appellants. Finding no reversible error in the record, the judgment is affirmed. Affirmed.