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Full text of "A treatise on the law of forcible entry and detainer and related topics"

(5flm?U ICam irlynol ICihtarg 



Cornell University Library 
KFI1317.C97 1895 



Treatise on the law of forcible entry an 



3 1924 024 669 594 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924024669594 



A TREATISE 





i 




in 



AND RELATED TOPICS 



^.' 



nO' 



rV 



WILLIAM B. CUNNINGHAM, 



OF THE CHICAGO BAR. 



SECOND EDITION. 



CHICAGO: 

T. H. FLOOD & COMPANY, 

Law Book Publishers. 

1895. 




Entered according to Act of Congress, in the year 1895, 

Br WILLIAM B. CUNNINGHAM, 

In the office of the Librarian of Congress at Washington. 



13/7 



I'ttlMTED AND BOUND 
BY 

DARIUS D. THORP, 
Lansing, Mich. 



PREFACE TO THE SECOND EDITION. 



Finding so many new cases and new rulings of the 
courts on the*subject of Forcible Entry and Detainer, 
it seeras but just to those who received the former 
edition of this work so kindly, and only just to myself, 
that all new cases should be collated and the work 
■ brought fully up to the present time. 

While the original intention was to prepare a 
treatise, on the law of this State, yet, to state the 
general principles of the law, which obtain in all of 
the states, it was necessary to make citations, found 
in point, from the courts throughout the United States. 
This , also required that the work should be much 
enlarged, consuming much time in its preparation, and 
I hope and believe that it will prove to be accurate, 
a time saver and useful. 

WILLIAM B. CUNNINGHAM. 

Chicago, 1895. 



TABLE OF CONTENTS. 



CHAPTEE I. 

THE LAW 'of the LEASE. 

Section 1. Definition. 

3. Written leases. 

3. Signature and seal. 

4. Implied leases. 

5. Parol leases. 

6. Parol agreement with the lease. 

7. Fraud in leases. 

8. What may be leased. 

9. Consideration. 

10. Agreement for a lease. 

11. Present demise. 

12. Time. 

Kinds of Tenancy. 

13. Tenancy at will. 

14. Tenancy at sufferance. 
15.- Tenancy by the month. 

16. Tenancy by the year. 

17. Tenancy for life. 

18. Covenants. 

19. Express co.venants. 

20. Implied covenants. 

21. Surrender of leases. 
23. Rooms and lodgings. 

23. Who are lodgers. 

24. Who are tenants. 

25. Lien on baggage for board. 

26. Rights of lodgers. 

27. Landlord defined. 



VI TABLE OF CONTENTS. 

FORFEITDEE OF LEASES. 

Section 28. Nature of forfeitures. 

29. Forfeitures at common lav. 

30. Under tlie statutes. 

31. "Waiver of forfeiture. 

Attornment. 

32. Definition. 

33. Implied attornment. 



CHAPTER II. 

ASSIGNMENT. OF THE LEASE. 

Section 34. Leases may be assigned. 
/ 35. Accruing rent. 

36. When assignment releases from rent. 

37. Lease assigned contrary to its terms. 

38. Voidable— Not void if terms disregarded. 

39. 'Sub-tenants and their rights. 

40. Termination of sub-lease. 

41. Leases by corporations. 
43. Appurtenances. 

43. Partnership leases. 



CHAPTER III. 

FORCIBLE ENTRY AND DETAINER. 

Section 44. The Illinois statute. 

45. The purpose of the action and when it will lie_ 

46. Forcible entry forbidden. 

47. Definition. 

48. Nature of the action. 

49. The remedy. 

50. Two wrongs in one name. 



TABLE OF CONTENTS. VU 

CHAPTER IV 
WHEN THE ACTION WILL LIE. 

Second. — 

Section 51. Statutory provisions. 

52. What force Decessarj-. 

53. When the owner may enter peaceably. 

54. Peaceable entry defined, 

55. Who liable in this action. 

56. What constitutes forcible entry. 

57. Detention after demand unlawful. 

58. Actual force not necessary. 

Third. — For Entry Upon Vacant Lands. 

59. The action will lie for entry upon vacant lands. 

60. Owner deemed to have possession. 

FouBTH.— Against a Tenant Holding Over. 

61. The fourth cause of action. 

62. Possession by fraud. 

63. Sub-tenants. 

64. Holding over after term expires. 

65. Possession under lessee. 

66. What complaint must show. 

67. Conclusive possession. 

Fifth.— Against a Purchaser who FaiLS to Com- 
ply WITH the Contract of Purchase. 

68. The fifth statutory cause of action. 

69. Who may sue under this clause. 

70. What necessary to give jurisdiction. 

71. Growing crops. 

Sixth. — Where the Premises Have Been Sold 
AT Judicial Sale. 

72. The sixth cause of action. 

73. When right first given. 

74. Detention of premises after sale. 

75. Against whom suit brought. 



VIU TABLE OF CONTENTS. 

Section 76. Demand necessary. 

77. The proof necessary. 

78. Judicial sales. 

79. What steps necessary to recover under this clause. 



CHAPTER V. 

WHO MAY MAINTAIN THE ACTION. 

Section 80. The only issue to be tried. 

81. What possession necessary. 

82. Possession of timber lands. 

83. Who the proper plaintiff. 

84. Cases in illustration. 

85. Growth of the action under the statutes. 

86. Particular cases stated. . 

87. Right of exclusive possession requisite. 

CHAPTEE VI. 

AGAINST WHOM THE ACTION WILL LIE. 

Section 88. The general rule. i 

89. What persons included as defendants. 

90. When action will not lie. 

91. .Joint occupants — Joint tenants. 

CHAPTER A^II. 

POSSESSION. 

iSECTiON 93. The kind of possession necessary for plaintiff. 

93. Pedis possessio — unnecessary. 

94. Constructive possession. 

95. Extent of possession. 

96. Judgment for part only. 

97. The demand of possession. 

98. Demand in writing. 

99. The service of demand. 



TABLB OF CONTENTS. IX 



CHAPTER VIII. 

TERMINATION OF THE TENANCY AND HEREIN OF NOTICE 
TO QUIT AND DEMAND. 

Section 100. Possession of tenants. 
101. Notice — How signed. 
108. Notice — How served. 

103. Agency — How proven. 

104. Parol leasing f<jr more tlian one year. 

105. Delivery of key and the acceptance of premises. 

106. Statutes of 1865 construed. 

107. How demand sliould be made. 

108. Yearly tenancy— Notice. 

109. When demand made. 

110. When lease expii-es. 



CHAPTER IX. 

'jurisdiction. 

Section 111. Jurisdiction originally. 

112. What necessary to give jurisdiction. 

113. The venue. 

114. In justice courts. 

115. In circuit courts. 

116. In various states. 



CHAPTER X. 
THE COMPLAINT. 

Section 117. Complaint heretofore and at this time. 

118. Summons. 

119. What the complaint should contain. 
130. What description of premises required. 



X TABLE OF CONTENTS. 

CHAPTER XI. 

PLEADINGS— TRIAL— PROCEEDINGS. 

Section 121. Statutory provisions. 
133. Pleadings. 

133. Amendments. 

134. Plea of not guilty. 

135. Time to amend. 

126. Questions of practice. 

127. Whom affected by judgment. 

128. Defendant's conclusive possession. 
189. Mistake in date of complaint. 

130. Judgments v^here several holdings. 

131. Pursuing tvpo remedies at one time. 

CHAPTEE XII. 

THE TENANT CAN NOT DISPUTE THE LANDLORD'S TITLE. 

Section 133. Tenant's possession that of the landlord. 

133. Jury can not consider title. 

134. Tenant must restore possession to lessor. ' 

135. May show that lessor's title has terminated. 

136. What the tenant may show. 

137. Deeds may be read to show boundaries. 

138. The true meaning of the law. 

139. Can show source of title. 

140. Mistake, artifice, and fraud. 

141. The settled rule. 

CHAPTER XIII. 

EVIDENCE. 

Section 143. The proof necessary to support the action of forcible 
entry and detainer. 



TABLE OF CONTENTS. XI 

Section 143. The proof in case of forcible entry. 

144. Wrongful withholding. 

145. In case of unoccupied lands. 

146. Holding over after termination of lease. 

147. Holding under contract of purchase. 

148. Holding after judgment of ouster. 

149. Defective description can not be supplied by parol 

proof. 

CHAPTER XIV. 

THE JUDGMENT IN FORCIBLE ENTRY AND DETAINER. 

Section 150. Statutory provisions. 

151. Judgment unauthorized if description indefinite. 

152. Judgment conclusive as to right of possessfon. 

153. Circuit court can render judgment on dismissal bf 

appeal. 

154. The effect of a judgment in forcible entry and de- ■ 

tainer. 

155. Conclusive only as to, matters legally determined. 

156. Judgments by confession were heretofore sustained. 

157. They are now invalid. 

158. Judgments confessed only for bona fide debt due. 

159. Against whom judgments may be entered. 

160. Judgments as to sub-tenants. 

161. Judgments as regards the wife of defendant. 

CliAPTER XV. 
RESTITUTION. 

Section 162. Definition of term. 

163. Restitution— Concurrent remedies. 

164. Jury must sign verdict. 

165. Duty of officer in executing the writ. 

166. Unknown sub-tenants. . 

167 Circuit court on appeal may remand case to justice 
to issue writ. 



Xll TABLE OF CONTENTS. 

CHAPTEE XVI. 

THE TENANT'S REMEDIES. 

Section 168. Tenant may abandon premises for landlord's fault. 

169. May sue for breach of contract. 

170. No relief against rent except by stipulation in the 

lease. 

171. Defenses available to the tenant. 
•173. Test questions for trial. 

173. Tenant's right to abandon premises. 

CHAPTEE XVII. 
REPAIRS. 

Section 174. Time when repairs made. 

175. The common law rule as to repairs. 

176. The landlord's duties regarding repairs. 

177. What repairs made by tenant. 

178. Damages for personal injury on account of premises 

being dangerous. 

179. Damages by water. 

180. Defective plumbing and the results of sewer gas. 

Use and Occupation. 

181. When tenants liable for use and occupation. 

182. Actions for rent and for use and occupation. 

183. Set-off and recoupment. 
184 Recoupment against rent. 

185. Set-off— When allowed. 

186. Damages. 

187. Damages for failing to repair. 

188. Re-entry by landlord. 

CHAPTEE XVIII. 

FIXTURES. 
Section 185. Definition. 

190. Landlord's fixtures. 



TABLE OF CONTENTS. Xlll 



Section 191. Tenant's fixtures. 

192. Removing fixtures. 

193. The intention as to fixtures. 

194. Cases in illustration. 



CPIAPTEll XIX. 

DISTRESS FOR RENT. 

Section 195. Rent defined. 

196. The warrant for distress. 

197. Proceedings for distress. 

198i Distress warrant subject to lien of execution already 
levied., 

199. Interest of chattel mortgagee. 

200. What property subject to levy. 

201. Amount claimed by landlord limits his recovery. 

202. The oflHce of the warrant. 

203. The landlord's lien on crops. 
S04. Trial in distress cases. 

205. Cases in illustration. 

206. Practice in distress-for-rent cases. 



CHAPTER XX. 

EVICTION. 

Section 207. Definition. 

208. Actual eviction. 

209. Constructive eviction. 

210. Cases in illustration. 

211. Effect and consequences of eviction. 
312. Taking from tenant part of premises. 

213. To discharge the tenant from rent he must abandon 

the premises. 

214. Particular cases stated. 

215. Threats by landlord against tenant. 

216. Suspension of rent. 

217. Damages for eviction. 



XIV TABLB OF CONTENTS. 

CHAPTER XXI. 
APPEALS AND APPEAL BONDS. 

Section 318. Statutory provisions as to bonds. 

219. Appeal bond indispensable. 

220. Bond — By whom approved. 

221. What gives the upper court jurisdiction. 
332. Ihp penalty of the bond. 

223. Conditions of the appeal bond. 
324. What the bond should be. 

225. Bonds in larger amount may be required. 

226. Sureties on appeal bonds. 

227. Bonds must be in vpriting. 

338. What will discbarge the surety. 

329. Co-sureties. 

230. The defense of the sureties. 



CHAPTER XXII. 
FORMS. 

Demand for possession. 

Notice to quit by an agent. 

Demand by an attorney. 

Notice to quit by the owner. 

Notice to terminate weekly tenancy. 

Ten days' notice to quit for default. 

Another form of notice to quit. 

Notice to quit for landlord by the agent. 

Landlord's five day notice. 

Sixty day notice to terminate tenancy. 

Another form of the same. 

Sixty day notice to be served by an agent. 

Thirty day notice to terminate a tenancy from month to month. 

A demand for possession disclosing the agent. 

Written authority to agent or attorney. 

Written authority to attorney to sue, etc. 



TABLE OF CONTENTS. 

Complaint in forcible entry and detainer in Illinois. 

Summons in forcible entry and detainer. 

Appeal bond in forcible eiitry and detainer. 

"Writ of restitution. 

Agreement for a lease. 

Agreement not to obstruct lights. 

To renew a lease. 

Agreement of surety in lease. 

Agreement to let furnished apartments. 

Form of guarantee of rent, etc. 

Assignmeht and acceptance of lease. 

Assignment of lease. 

Consent to assignment. 

Assignment by lessor. 

New lease \yith full powers. 

Short country lease. 

.Skeleton lease. 

I 



CASES CITED. 



A 

PAGE 

Abbott V. Kruse 37 111. App. 549 188, 139 

Abbott's Law Dictionaiy _ _ 64 

Ackland V. Sutley 9 Ad. and El. 879 132 

Adlard v. Muldoon 45 111. 193 _ 31 

-Allen V. Tobias et al.. 77 111. 169... 

Alwood V. Mansfield 33 111. 452 

Amer. & Eng. Enoyo. of Law Page 466 

American Decisions, vol. 15 Page 64 

Anderson et al. v. The Chicago M. & 

F. Ins. Co 21 111. 601 

Anderson's Dictionary of Law 2 Bl. Com. 317 

Ankeny v. Pierce 1 111. 262 i... 

Arch. Landlord and Tenant-. Page 66 

Arms V. Burt 1 Vt. 306... 

Armson v. Forsythe 40 III. 49 

Asay V. Sparr... -..36 111. 115 

Atkins V. Byrnes ..^. ...71 111. 326 

Atkinson v. Lester et al S 111. 407 

_ 69,75,100,143,148,175 

B 

Bailey V. Moore et al... 31111. 165 39 

Baker v. Cooper .-51 Me. 388 103 

Baker v. Hays... 28 111. 387 61,97,98 

Ball V. Chadwick et al ..--46 IlL 38 78, 103 

Barlow V. Burns 40 Cal. 351.. 76 

Bartlett V. Hitchcock.. 10 IlL App. 87 87 

Bainter v. Lawson 34 lU. App. 634 333 

Ball V. Peck.... 43111. 482.... 

...79, 116, 120, 122, 134, 134 



95, 


174 


166, 


232 




266 




186 




353 




3 


164, 


254 




121 




16 




270 




236 


38, 


230 



XVlll CASES OriKJ). 

PAGF/ 

Ballanoe v. Curtenius et ai o Gil. III. 449 

....72,138,146,154,157,146; 

Baxley v. Collins 4 Blackf. (Ind.) 320-... 137 

Baxter v. West 5 Daly R. 460 3t 

Beard v. Bricker 3 Swan (Tenn.), 50... 84 

Becar v. Flues 64 N. Y. 518... 9" 

Bee! v. Pierce : 11 111. 93 136, 137, 145, 147 

Beezley V. Burgett 15 la. 192 102 

Bennett v. Bittle 4 Rawle, (Pa.) 399 249 

Benjamin v. Heeney et al. 51 111. 493 206- 

Beidler, et al. v. Fish 14 111. App. 29.. 3 

Bell V. Bruhn.... 30 III. App. 300..42, 123, 30, 191 

Bells V. Anderson !.... 38 III. App. 138 U& 

Berger v. Hoerner .36 111. App. 360 227 

Berrington v. Casey 78 111. 317 5,33 

Bigler v. Furman et al 58 Barbour, 555 167 

Billings V. Chapin... 3 111. App. 5.55 137, 13a 

Billings V. Lafferty 31 111. 818. 264, 36.5- 

Bingham on Real Estate; 557 228 

Birdsall v. Phillips.. 17 Wend. R. 472, 464. 31 

Bishop V. Elliott 11 Ex. R. 113 225 

Bissell V. Lloyd et al. 100 111. 314 c..l97. 202, 205 

Blackstone Com. vol. 2, 4i: ., 328 

Blake v. Ranous .35 111. App. 486 310 

Blanchard et al. v. Pratt '....37 HI. App. 343 ,. 163' 

Blake v. Kurrus 41 111. App. 563 18 

Bliss V. Gardner et al 3 III. App, 432 41,43- 

Black on Judgments, 663 ., , 187 

Block V. Ebner 54 Ind. .544 197 

Bloom V. Goodner 1 111. 63 .51,69,194 

B. & O. & C. R. R. Co. V. 111. Cent. 

R. R. Co 137 111. 9 13,200 

Borden v. Croak.. 33 111. App. 389 2d1 

Borman v. Sandgren 37 111. App. 160 305 

Boston R. R. Go. v. Ripley 13 AUen, (Mass.) 241... 349 

Bouv. Law Die _2, 38, 67 

Bowlby V. Robinson et al 45 111. App. 531 _ . 261 

Bowman v. Mehring 84 111. App. 389 ]56- 

Boyd et al. V. Frafernity Hall Assn.. .16 111. App. 574 14S 



(1ASKS CITED. XIX 

PAGE 

Boyd V. Kooher... _31 111. 295 264, 265^ 

Bradley v. West _ 60 Mo. 59 US 

Bradley v. West 68 Mo. 69 185 

Brackensieck v. Vahle et al 48 111. App. 312 91, 194 

Breher v. Reese : 17 111. App. 545 10' 

Brooks V. Bmyn ._ 18 111. 539 

—76, 95, 97 166, 177, 180, 174 

Brown v. Smith ,_ 83 111. 291 _. .17, 18, 192 

Brown et al. v. Stnith et al J. 24 111. 197 236 

Brownell et al. v. Welch.. ...91 111. 523 18 

Brushy. Fowler. 36 111. 53.. .77, 90, 190, 218. 217 

Bryton v. Marston : 33 111. App. 211 22 

Bull V. (Mswold 19 111. 631 8 

Bums et al. v. Nash _ 23 111. App. 552... 137, 140, 189 

Burt V. French 70 111.254.... 3a 



Cairo, etc., E. B. Co. v. Wiggins 

Ferry Co 1 82 111. 230 :..'. 145, 146 

Campbell v. Shields . 11 Hojverny, 165 249 

Carroll v. City of Jacksonville 2 Brad. 481. >. 154 

Carroll v. Ballance 26 III. 9 50 

Carson et al. v. Crigler_.__ 9 III. App. 83 43 

Carson et al. v. Crigler 9 111. App. 83 44, 110, 187 

Carter V. Marshall .--. 72111. 609 ._._ 170 

Casey V. McFalls 3 Sheed. 115 __. 187 

Casselberry v. Forguer.. 27 111. 170 80, 106 

Cazzalo v. Chambers et al 73 111. 75 22, 23, 49 

Center V. Gibner -..71 111. 557 155,263 

Chadwick V. Parker 44 111. 326. _. 32, 128 

Chapman et al. v. Kirby.. .49 111. 24_ 32, 84, 35 

Chapman V. Wright .20111. 120 33 

Chapman V. McGrew 20111. 101.. 12, 45 

Cheney v. Bonnell 58 111. 268 34,35 

Cheney v. Bonnell 58 111. 268 254 

Chicago Legal News Co. v. Browne 

et al —5 III. App. 250 218 



XX CASES CITED. 

I'AOK 

Chicago B. & Q. R. R. v. The Presi- 
dent, etc., of Knox College 34 111. 203 129 

Chicago Attachment Co. v. Davis i 

Sewing Machine Co._ 142 111. 171 44 

Church V.Brown 15 Ves. 265 41 

Churchward V. Ford 2 H. & N. R 44.5-4.50.. 31 

City of Bloomington et al. v. Brophy.32 111. App. 400. 69, 165 

City of Chicago v. Garrity et al 7 111. App. 474.. 50 

City of Peoria v. Simpson 110 111. 294 208 

Clark V. Clark 58 111. 527 212 

Clark V. Baker. .,...44 111. 349 ...72,74,77, 105 

Clark V. Ford .41 111. App. 199 219 

Clark V. Jones 1 Denio R. 516 36 

Clason V. Bailey 14 Johns, (N. Y.) 84... 4 

Clapp etal. v. Noble 84 III. 63 7, 181 

Clevenger v. Dunaway 84 111. 367 282 

Clemens V. Bloomfleld .19 Mo. 118 4 

Clinton Wire Cloth Co. v. Gardner et 

al 99111. 151.^... 8 

Cluett et al. V. Sheppard 131111.636 .. 22 

Cobb V. Lavalle.... 89 111. 331 114 

Coe V. Cassidy 72 N. Y. R. 133.^ 270 

Cochrane v. Tuttle .......75 111. 361 28 

Coford V. Bishop , 11 111. App. 117 191 

Commonwealth v. Shattuck. .4 Cash, 141.. 64 

Commonwealth t. Toram 2 Pars, (Pa.) Sel. Cas. 

411 65 

Commonwealth v. Kensey. 2 Pars. (Pa.) Sel. Cas. 

401 69 

Commonwealth v, Biglow.. 3 Pick. (Mass.) 31 102 

Consolidated Coai Co. V. Pears et al.. -39 111. App. 4.53 159 

Cone V. "Woodward. ..65 111. 477 ; ' 33, 35 

Cook V. Norton etal 48 111. 20 17 

Cooney v. Hayes 4 Vt. 478 ' 40 

Conley v. Shiller 34 N. Y. Sup. 473 354 

Consolidated Coal Co. of St. L. v. 

Sohaefer 31 111. App. 364 .,122,123 

Copeland V. Parker ...4 Mich. 660 ' 45 



CA8ES <'ITK7). XXI 

PAGE 

Coppinger et al. V. Armstrong 8 111 App. 210; 5 111. 

App. 637 ...41, 49, 165 

Corrigan et al. v. City af Chicago 

et al 144 111. 537 170 

Coursen v. Browning et al 86 111. 57 272 

Coverdale v. Curry 48 111. App. 313 70 

Coxv. Cunningham, ___ 77 111. 545 39, 79, 96 

Cox T. Jordan 86 111. 560 .230,332,243 

Cozens v. Stevenson 5 S. & R. 424 22, 49 

Cram v. Dresser 3 Sandf. E. 120 _ 318 

Crane v. Hardman _ 4 E. D. Smith R. 339. 218 

Creightou \. Sanders 89 111. 543 13^ 

Crofif V. Ballinger 18 111. 200 

69, 71, 173 174, 175, 182 

Cunnea v. Williams :.ll 111. App. 72 230, 233- 

Currey V. Davis 1 Houst. (Del.) 598...' . 11 



Daggittv. Menschet al, . 41111. App. 403 99 

Dale V. Doddridge 9 Neb. 138.... ." _ 186 

Davenport et al. v. Haynie et al 30111. App. 59 107 

Davis T. Lennen 24 N. E. Rep. 885 185 

Davis V.Woodward 19 Minn. 137 68 

Devell V. Binkerhoflf 22 Mich. 371 139 

DeWitt V. Pierson 123 Mass 8 250 

Dickason V. Dawson... .85 111. 53 88, 90, 129 

Dickenson V. McGill ..9Cal. 47 _. 152 

Dickinson V. Petrie... ...38111. App. 155 123 

Dickson V. Haley 16 111. 145 '.... 213 

Dills V. Stobie et al..! 81 111. 203.. 8, 39, 126, 131 

Disselhorst v. Cadogan et al 31 111. App. 179 42 

Dixon V. Buell .31 111. 203 41 

Dixon V. Haley 16 111. 145 18, 84 

Dixon V. Nicholls et al 39 111. 872...... 230 

Doe V. McMahan 1 3 Scam. (111.) 13 4 

Donnely V. Thieben 9 Bradw. 495 337 

Doty V. Burdick 83111. 473 

.44, 61, 68, 70, 93, 111, 164, 165 



XXll CASKS OITEI). 

PAGE 

Doran V. Gillespie 54 111. 366 79, 116, 

117. 129, 128, 139, 155, 159 

Dotson V. The State --6 Caldw. (Tenn.) 545... 63 

Dougherty V. Matthews 35 Mo. 520 42 

Dow V. Blake-l- 15 111. App. 89 287 

Doyle V. Hallen 31 Minn. 515 185 

DuBignon V. Tufts 63 Ga. 59 ._- 141 . 

Duckerv. Eapp - -41 N. Y. Sup. Ct. 385.. 268 

Dudley etal. v. Lee , 39 111. 339 

49,70, 89, 97, 160, 300 

Dunbai-Y. Bonesteel 8 Scam. (111.) 82. _ 167 

Dunham V. Carter.... 2 Stew. (Ala.) 496 141 

Dunn V. Jaffray .36 Kansas, 408 51 

Dunne v, Trustees of Schooir. 39 111. 578 

.16,115,123,125,145,146,262 

Dunstedterv. Dunstedter 77 111. 580 75 

E 

Eames v. Preston ..20 111. 389 '. 4 

Easton v. Mitchell J . 31 111. App. 189 16 

Edge V. Stafford.. 1 Tyr. 293 27 

Edge V. Stafford.. L...lConiplon& Jervis,391 27 

Edgerton v. Page -..-20 N. Y. E. 281 256 

Edwards v. Candy ' .14 Hun (N. Y. So.) 596 356 

Eiohhorn v. Peterson et al 16 III. App. 601 25 

Ely V, Ely ..80 111. 582 ., 27,205 

Eldredge v. Bell... J 64 la. 125... .84,40,47 

Eldridge v. Holway j ..18 111. 445 124 

Eliott V. Bishop 10 Ex. E. 496 225 

Elliott V. Atkin 45 N. H. 30 249 

Emerson v. Sturgeon ...59 Mo. 404. 68 

Emmons V. Soutler.. _.....■ 115 MasS. 367 _ 18 

Empson v. Soden 4 B. & Ab. E. 655 236 

Ennis V. Lamb _ 10 111. App. 447 191,195 

Epsen et al. v. Hinchliffe .131 111. 468 28,189 

Eten V. Luyster _ 60 N. Y. 252... 48 

Etherridge v. Osborn ' 13 Wend. (N. Y,) 529. 245 

Evans v. "Winona Lumber Co 80 Minn. 515 9 

F 

Fabri V. Bryan et al 80 111. 182 73 153 



CASES CITED. XXIU 

PAGK 

Tabri V. Cunio 1111. App. 340 191 

JFairbank v. Streeter .142 111. 226 261, 266, 267 

Fanning v. N. W. Life Ins. Co 6 111. App. 536 157 

Fairman V. Beal... 14 111. 344 111,174 

Farnam v. Hahman .90 111. 313 124 

Fenton et al. v. Strong ,.37 111. x\pp. 58 237 

Field et al. v. Herrick et al .101 111. 110 24, 253 

Field V. Herrick et al. 5 111. App. 54... 49 

JFink et al. v. Disbrow 69 111. 76 155,198 

J'inney v. Harding. 33 111. App. 98 237 

First Nat. Bank of Joliet v. Adam 

et al 138 111.483 231 

Fish V. Benson 71 Cal. 428 186 

Jlsher V. Deering. 60 111. 114 38 

Fishery. Smith ..48 111. 184 90 

Flood T. Flood 1 Allen (Mass.), 317.-. 18 

Fortier V. Ballance. 5 Gil. (111.) 41 173 

Foss T. Foss 2 Bradw. 411 173 

Frank V. Taubman ../SI 111. App. 592 * 127 

Frazier et al. v. Caruthere et al 44 111. App. 61 37,48 

French v. Miller :.-.136 111. 611 65,139 

French v. Wilier.... 126 HI. 611... _ 188,189 

Fusselman V. Worthington. 14 111. 135.... 166,173 



■Gable v. Wetherholt 116 111. 313 168 

Gallaway v. Kirby.' 9 lU. App. 501 201, 

Gartsid'e et al. v. Outley et al 58 111. 310 .. 19 

^Gardner V. Ketcler .'..3 Hill, 830. 33, 49 

Gazzolo V. Chambers et al .73 111.75 23,49 

•Gerlach v. Walsh 41 111. App. 83 146 

Qerzebech V. Lord 33 N. J. L. 240 204 

GilhoUey V. Washington .......4N. Y. 217.... ...250, 255 

Gilliam v. Coonetal.- :...10I11. App. 43 213 

Oinnet al. v. Rogers' 4 Gilm. (111.) 181 

135,138,139,141 

Godardetalv. Lieberman.. .17 111. App. 366 190 

Goldsborough v. Gable .140 111. 269 6, 13 

-Gorman V. Steed.. 1 W. Va. 1 141 



XXIV OASES CITED. 

PAGE 

Gould etal. v. Hendrickson 9 111. App. 171. _79, 161,217, 218 

Gradle v. Warner 140111.133 101 

Gray v. Gray ___3Litt. 465 - 97 

Greenaway V. Adams.. _ 12 Vesey, 395.. 47 

Greton V. Smith 33 N. Y, R. 245. 256. 

Gridley V. City of Bloomlngton 68 111. 47.. 208 

Griffin v. Kirk 47 111. App 258 50, 166, 167 

Griffin T. Knisely 75 111. 411..... 200 

Green etal. v. Hague 10 111. App. 598 208, 310 

Green v. Hague ...10 Brad w. .598 27 

Grommes et al. v. St. Paul Tr. Co. et 

al 147 111. 634 

-...36, 43, 44, 45, 47, 

198, 215, 222, 352, 256, 257 
Grymes V. Boweren , ...6 Bing. R. 4 37 225- 

H 

Haley v. Palmer 9 Dana (Ky.), 330 113 

HaUey et al. v. Metcalf ...12 111. App. 141 6,230 

Hallis V. Burns. 100 Pa. St. 206 8,10 

Halligan v. Wade 31 111. 470. .248, 250, 251, 252, 253 

Hansen V. Dennison et al 7 111. App. 73 243 

Hansen V. Meyer et al 81 111. 331 45 

Hannigan V. Massler et al 44 111. App. 117 139 

Hard v. Moon ...6 Cal. 161 139 

Hardin v. Forsythe et al 99 111. 312. 166, 167 

Harlan v. Scott 2 Scam. 65 154, 161, 194, 265 

Hardisty V. Glenn ..32 111. 62 92,93,110,174 

Hare v. Stegall : 60 111. 380 332, 235, 241 

Harms et al. v. McCormiok et al...l33 111. 104. 30 

Harms V. Salen et al ...79 111.460 243 

Harrison v. Hill 37 111. App. 32.. 50 

Haskins et al. v. Haskins ..67 111. 446.. 

....83,136,140,143,147,185 

Hassett v. Johnson 48 111. 69 95, 103, til, 176 

Hatfield V. Fullerton w 24 III. 378 49 

Hatfield V. Fullerton? 28 III. 378 233 

Haupt V, Pittaluga .6 Bush, 493 101 



CASKS CITED. XXV 

PAGE 

Haven & White v. Wakefield et al. . .39 111. 509 2, 230 

Havens v. Bickfoid 9 Humph. (Tenn.)673. 65 

Havckins v. Harding 37 111. App. 565 . 273 

Hays v. Porter-. 27 Tex. 93 98 

Hayes v. Lawyer j .., 38 111. 183 39 

Hayner et al. v. Smith et al 63 111. 430. .345, 349, 252, 254, 256- 

Heissler et al. v. Stose _.33 111. App. 39 197 

Herman on Estoppel, sec, 868 . 169 

Hermon v. Larned 58 Iowa, 169. 180 

Herron V. Gill 113 111. 347 333 

Herrell et al. v. Sizeland et al 81 111. 457.... ...16, 19, 127, 315 

Hersey et al. v. Westover .11 111. App. 197 118- 

Hersey v. Westover.. '. _ 11 Bradw. 191 181 

Hervie v. Turner 46 Mo. 444 186 

Hewitt r. Templeton et al ....48 111. 371 92 

Hiokmarv. Marl 55 lud. 551 204 

Hilliard v. Carr..., 6 Ala. 557 160 

Hinman V. Kitterman ' 40 111.354 1.55 

Jlilbourn v. Fogg et al .99 Mass. 11. I... 166, 172 

Hillary v. Gay .^ 6 C. & P. 384. 68 

Hisey v. Troutmau... 84 Ind. 115... 11 

Hoagland ^t al. v. Crum 113 111. 365 . 125 

Hoffman v. Reichert et al .....31 111. App. 558.. .106, 109, 111 

Holder V. Soulby- 6 Jur. N. S. 1031; 39 

L. J. C. P. 246; 8 W. 

R. 438; C. B. N. S. 

354-. 30 

Holladay et al. v. Bartholomas et al...ll 111. App. 306 118, 234 

Home Life Ins. Co. v. Sherman 46 N. Y. 370 249 

Hoops V. Meyer.- -1 Nev. .433 141 

Hope V. Eddington Lalor, 43 247, 248 

Hopkins v. Buck... 3 A. K. Marsh, 110... 68 

House V. Camp 33 Ala. 541 9S 

House V. Wilder et al 47 111. 510 157 

Howdyshell et al. v. Gary 31 111. App. 388 333 

Howe V.Clark - 33 III. App. 145 237 

Howell V. Ashmore 2 Zab. 265 168 

Hubner v. Feige 90 111. 208.... lOa 



.XX VI GASES CITED. 

PAOK 

Huftalin V. Misner-.. -70 III. 55 155 

Huftalin V. Misner 70 111.205 

_61, 6T, 112, 117, 130, 174, 180 

HuggiDS V. Halligan 46 111. 173.._-.. 105 

Hughes V. Van Stone. -.20 Mo, App. 637 23 

Hughes V. Streeter - -24 111. 647:--. - 185 

Hunt T. Morton -- 18 111. 75.- 19,20 

Hunteretal. v, Whitfield et al 89 111.329 ....238,242 

I 

JUingworth V. Btirley —33111. App. 394 50 

111. C. R. E. Co. V. B. & O. & C. E. 

R. Co _-- 23-111. App. 531 156 

International Bank V. Pappers ..105 111. 491,, 270 

Indiana, B.& W. E. R. Co. v, Allen. .113 Ind. 308 185 

I. C. R. E. Co. V. Thompson ,116111. 159 313 

jves V. Van Eppes _ -..2 Wend. 165 216 

J 

Jackson v. Groat 7 Cow. (N. Y.) 285... 40,47 

Jackson v. Silvernail 15 Johns. 378 _. 46 

Jackson v. Harrison ..17 Johns! 66... _ 46 

Jackson V. Eddy --- - 13 Mo. 209 _. 249 

Jackson v. Odell - 9 Daily R. 371 230 

Jackson v. Warren - 32 Hi. 331 

.85, 89, 100, 101, 104, 136, 155 

Jamison v. Graham.-- 57 111. 94._ -..94, 102, 108 

Jenney T. Jackson et a] 6 111. App. 33 226 

-Jex V. Jacob ' 19 Han. {N. Y. Sc.) R. 

105 _ 315 

Johnson v. Crane et al..-- 33 111. App. 366 187 

Johnson v. FuUerton 44 Pa St. 466 195 

Johnson v. Bantock 38 111. Ill 89,180 

Johnston v. Prussing 4 111. App. 575. 234 

Johnson v. West 44 Ark. 585 ' 65 

■Tones T. Gray 00 Cal. ,508 103 

K 

Kassing et al. v. Keohane--- ^4 111. App. 460 96 

Kassing et al. v, Koehane.. 4 111. App. 460 334 



OASKS CITKD. XXVll 

PAOlfi 

Keary v. Baker 33 Mo. 603.. ._ 267 

Keating v. Springer.. : 146 111. 481 157,158 

Keegan v. Kauiuaire 12 111. App. 484 182, 218 

Kepgan v. O'Callaghan.. _..35 111. App. 142 161 

Kee^-nan V. Germain 61 Miss. 498 301 

Kent's Comm. vol.4. 111, 112, 1 121 

Kepley v. Luke ..10 111. App. 403... .88, 136, 140 

Kepley v. Luke _.106 111. 895_.. _... 1.'56, 166 

Kessinger v. Whittaker et al 82 111. 33.. _ . . 163 

Kilburn v. Ritchie.. .2 Cal. 145. ....__ 126 

King V. Lawson... 98 Mass. 309 17, 185 

Kingsbury v. Perkins et al.- 15 111. App. 240 88 

Kinney v. Jones et al... 37 111. A-pp. 615 261 

Kinsley v. Ames.. 3 Met. (Mass.) 29 17 

Kinzie v. Chicago. 3 Scam. 111. 187 49 

Klingensmith v, Faulkner 84 Ind. 331 147 

Knicht V. Mitchell ..67 111. 86 11 

Knight V. Knight et al... 3 111. App. 306 /. 101, 164 

Koob V. Ammana 6 111. App. 160 343 

Kratz V. Buck _ HI 111. 40 88 

Kruse v. Kruse i. 68 lU. 188 338 

Kuirus T. Seibert 11 111. App. 319 208 



■Ladd V. Griswold. ,--.4 Gil. 25 51 

Laird v. Winters 37 Texas, 440 98 

Lake V. Campbell.... ...J 18 111. 106 3 

Lake V. Frasher.... ,,...:....79 Via.' 409... ibS 

Lambert V. Borden 10 111. App. 431 li>8 

Langford v. Selmes .....3 Kay & J. 220 169 

Lathrop v. Clewiss '...63 Ga. 282 228 

Leadbeater v. Roth..._ 35 IlL 587 353 

Leary V, Pattison... -.66 111. 303 143,155,159 

Leech v. Koenig 55 Mo. 451 39 

Lehman v. Whittington 8 111. AjDp. 74 

.87,90,116,117,133,173 

Leman et al. v. Best et al.. 30 111. App. 333 227 

Leindecker et al. v. Waldron 52 111. 383.. 77, 190 

Leiter v. Pike et al -137 lU. 387.' .....5, 42, 50 



xxvm CASES riTici). 

PAGE 

Lesher v. Sherwin -.86 111. 420. ..82, 83, 84, 178, 181 

Leopold V. Judson et al 73 111. 536 2.33, 2-56 

Libbey V. Telford.... 48 Me. 316 9 

Liude V. Hough 27 Barb. 41.5 46 

Lindley v. Dakin —13 Ind. 388 39 

Lindley v. Miller ....67 111. 244 236, 240, 241, 244 

Little et ux. v. Dyer. ' 3.5 111. App. 35 188,211 

Livingston v. Miller 8 N. Y. R. 283 229 

Loach V. Farnam et al 90 111. 368 •'! 

Louis V. Stitle.. 2 LHt. 294 97 

Louis et al. v. Fish 40 111. App. 372 24 

Lunn V. Gage , ...37 111. 19 201,203 

Lynch v. Baldwin.... 69 111. 210 

13, 234, 2.50, 2.52. 254, 256 

Mc 

McCartney V. MoMuUen .38111. 237. ...74, 75, 76, 

92, 93, 96, 1-09, 164, 176 

McCartney v. Hunt et al 16 111. 76. .77,82, 98 

McCouU V. Herzberg .33111. App. 542 ...205, 211 

McDevitt V. Lambert 80 Ala. 536 25 

McFarlane V. Pierson 21 111. App. .566 207, 254 

McFarlane v. Williams.. 107 111. 33 ..6, 14, 19 

McGlynn v. Moore ...25 Cal. 348 131 

MoGillickv. McAllister... 10 111. App. 40 235 

McHanv. Stansell 39 Ga. 197 i 111 

McKinney v. Peck ^..28 111. 174 19 

McKeagev. Hanover If. Ins. Co 81 N. Y. R. 38 325 

McMillan V. Solomon 42 Ala. 356 28 

McNair V. Schwartz .16 111.24 313 

M 

Mackin et al. v. Blythe .35 111. App. 216 233 

Maloney v. Shattuck 15 111. App. 44 147 

Mann v. Brady ...67 111. 95 174 

Mann v. Brady .67 111. 95 107, 109 

Mason v. Finch 2 111. (1 Scam.) 495.. 98, 107, 317 

Mason v. Powell 38 N. J. 576 68 



OASES CITED. XXIX 

PAQE 

Mason v. Finn 13 111. 525 226 

Mason V. Tiffany 45 111. 392 51 

Mason v. Grey 36 Vt. 308 17, 18 

Mattocks V. Helm 5 Litt. 185 186 

Mendel v. Fink ,. .. 8111. App. 378 209, 210, 219 

Mesaingill V. Boyles.. _..ll Humphrey, 112 77 

Mickle V. Miles 31 Pa. St. 20 13 

Miller V. James.. , 36 111. 399; 67111. 395.. 239, 240 

Miller etal. v. White 80111. 580 _._ . 81 

Miller etal. v. White. ..80 111. 580 80, 194, 195 

Miller v. Eidgely 19 111. App. 306 6 

Minor r. Sharon ._ .112 Mass. R. 477 220 

Minturn v. Burr 20 Cal. 48 104 

Mitchell V. Davis 23 Cal. 381 _. 187 

Mitchell r. Plant--..: 31 111. App. 128 305,219 

Monsen V. Stevens, - .-.56 111.335... 84 

Montanye v. Wallahan 84111. 355 -. 251 

Moore v. Smith .'. 24111 518 227 

Morey et al. v. Pierce 14 Illv App. 91.... 211 

Morgan v. Smith.... .-- 70 N. Y. R. 537, 543... 271 

Morris v. Tillson et/al 81 111. 607.... 248, 249 

Mueller v. Newell 29 111. ApiJ. 192 96 

Murphy v. Williamson.... 85 111.149... 129 

Murphy v. Lucas 2 O. 255 1 37 

Murphyv. Dwyer '. 11 111. App. 156 156,181 

Murr V. Glover et al 34111. App. 373... 231 

Murry v. Harper _.. 3 Ala. 374 196 

N 

Nash V. Berkraeii- 83 Ind. 536. 10 

Nave v. Benney 22 Ala. 382 22 

Neill et al. v. Chessen..... 55 111 App. 266 42 

Newfeld v. Beidler 37 111. App. 34 79 

Nicholson et al. v. Walker et al 4 111. App. 404 _. 87, 90 

Nicholson et al. v. Walker et al 4 111. App. 404 169 

isTixon V. Noble , 70 111. 32 117 

Norris v. Pierce ..'. 47 111. App. 469 160 

Norwood V. Kirby 70 Ala, 397 ..... 187 

N. W. Brg. Co, V. Manion. 47 111. App. 627 159 



XXX OASES CUTKD. 

O 

PAOE. 

Oakes v. Oakes , _16 111. 106 ---- 313 

Ogildie V. Hull 5 Hill R. 53 -- 356 

Olcott V. Dunklee 16 Ver. 478 - 30 

Olmstead v. Burke. .._ -35 111. 86 358- 

O'Hara v. Jones... 46 111. 288 335, 343 

O'Malla et al. v. Glynn 43 111. App. 51.... 156, 337, 342 

Ottumwa Woolen Mills v. Hawley . . . 44 la. 57 50 • 

Oswald V. Mollet ..39 111. App. 449 38 

Oswald V. Wolf - ....129 111. 300 209 

Otis V. May. 30 111. App. 581 _ 226 



Packard v. C. O. C. & St. ,L. E. R, 

Co 46 111. App. 344 16 

Page et al. v. De Puy. _..... .40 111. 506 61 

Paine etal. v. Irwin ..' ....44111. App. 105 206 

Palmer v, Ford.. ^....,-..70 111. 369 32 

Palmerv. Forbes ". 23 111. 301.... 236 

Pardy v. Rakestraw et al 13 111. App. 480 85 

Patchell et al. v. Johnston .'64 111. 305 .32 

Patchell & Turner v. Johnston..... 64 111. 305 78 

Patterson et al. v. Graham 140 111. 531. _ 

....113, 136, 145,246, 254, 3-56 

Patterson et al. v. Hubbard et al 30 lU. 301 77 

Pearson v. Herr 53 111. 144. 

.94, 95, 110, 113, 168, 174, 180 

Peck V. Hiller 31 Barb. R. 171 345, 246 

Peck V. Ledwidge 35 111. 109 206, 207 

Peck V. Scoville Mfg. Co 43 111. App. 360 205 

Pensoneau v. Bertke 2 111, 161 95 

People V. McAdam 84 N. Y. 287... 104 

Peterson v. Sweet 13 111. App. 255 170 

Pettyman V. Unland et al 77 111. 306 238, 343 

Phelps V. Randolph 147 111. 335 73,79, 164 

Phillips V. Sampson 2 Head (Tenn.), 429... 171 

Pitt V. Laming 4 Camp. 77 27 

Pitt et al. V. Swearingen 76111. 250 __ 263, 264 

Piatt V. Farney 16 111. App. 216. .. 211 



CASES CITKD. XXXI 

PAGE 

Pleasance v. Claghorn 3 Miles (Pa.), 302 10 

Post V. Bohner 36 N. W. Rep. (Neb.) 

308 116 

Poppers V. Meagher 148 111. 192. ...33, 134, 163,319 

Poppers V. International Bank ...... .10 111. App. 531 264 

Pratt V. Hone et al 10 111. App. 633 76, 94 

Powers V. David 6 Ala. 9 161 

Prehman V. Stifel ...41 Mo. 184 175 

Prickett v. Ritter .16 111. 96 

..6,17,116,131,134,126,128 

Prendergast v. Young 1 Foster, 338.. 32 

Prescott V. Overstatter L...-85Pa. St. 534.... .. 197 

Prettyman v. Walston et al 34 111. 175 164, 221 

Preston V. Kehoe... 10 Cal. 445 107 

Preston et al. v. Zahl 4 111. App. 423 1. 89. 90 

Price V. P. & F. W. C. R. R. Co 34 111. 13 314,246 

Proctor et al. v. Taws et al 115 111. 138 17 

Q 

Quinlan v. Bonte _ 35 111. App. 240 7 

R 

Ragor V. McKay et al _ 44 111. App. 79... 160, 165 

Rains V. Oshkosh.-.L 14 "Wis. 373....^ 107 

Randall v. Lynch 2 East. 182.... 20 

Reed v. Bar'tlett.... 9 111. 267 - 39 

Reed v. Grant'. -. 4 Cal. 176 81 

Reed v. Hawley 45 111. 40.. ..77, 80, 81, 105, 123 

Rees V. Lawlass -• 6 Litt. 184 106 

Reeves v. Hyde 14 111. App. 233 216 

Reader et al. v. Purdy et ux 41 111. 284 61, 63, 69, 71 

Reichenbacher v. Paheyer 8 Bradw. 217 _. , 27, 207 

RensenV. Conklin 18 Johns. R. 447 229 

Rev. Stat. 1874, p. 535 -.. 86 

Rev. Stat., chap., 57, sec. 5 ..- 143 

Rex V. Nichols 1 Kenyon, 512 64 

Reynolds v. Gage - -91 111. 125..., 125, 134, 140, 144 

Reynolds v. Thomas et al 17 111. 307... 106, 161 

Rice V. Brown -77 111 549.. .87, 90, 96, 103, 113 



XXXn CASES CITED. 

PACK 

Richardson v. Richardson 75 Mass. 313 38 

Rider V. Bagley..__ _ 41 III. 365 363 

Ridgley V. Stillvvell 37 Mo. 138 330 

Rigg V. Cook 4 Gil. (111.) 336 _. 164 

Riverside Co. v, Townshend et al...l30 111. 9 .- 186 

Robertson v. Robertson _2 B. Mon. (Ky.) 385.. 196 

Robinson v. Crummer.... 5 Gil. (111.) 318 _63, 99,217 

Robinson v. Berry 31 Ga. 183 40 

Rosenbaum v. Gunter 2 E. D. Smith R. 415._ 369 

Rowland v. Hewitt 19 111. App. 450 158 

Ruoker v. Wheeler et al _ 39 111. 436. 267 

Ryan v. Kirchberg _-17 111. App. 132 8 

Ryan v. Kirchberg 17 111. App. 132_ 158 



Sanborn v. Haynex et al... 26 111. App. 335_ 313, 313 

Schaumtoeffel v. Belm 77 111. 569.. ..137, 147, 159, 180 

Scheldt V. Belz et al 4 111. App. 431 46. 50, 51 

Schreider et al. v. Chicago & Evans- 
ton R. R. Co 115 111. 340 125 

Seem v, McLees 24 111. 193 _ 

....122.124,126.160,174,198 

Sexton V. Chicago Storage Co. etal...l29 111. 318.. 14, 47, 198 

Sexton et al. v. Carley ..147 111. 369. 164,170 

Shackelford v. Bailey... 35 111. 387... 185 

Sheetz v. Baker 38 111. App. 349 331,233 

Sherman et al. v. Dutch ..16 111. 383 _ 45 

Sheridan v. Beardsley et al 89 111. 477. 262,263 

Shepherd v. Cummings l.Coldw. (Tenn.) 354.. 9 

Shoudy V. School Directors 83 111. 390 92 

Shumick et al. v. Thompson 25111. App. 319.151, 156, 158, 268 

Shinkell v. Letcher et al 40 111. 48. 269 

Silvey V. Simmer 61 Mo. 253 .' 139 

Silverman v. Chase, Exr 90 111. 43 51 

Simons v. Jenkins 76 111. 479 118 

Smith v. Kinkaid 1 111. App. 620 207,213 

Smithy. Marrable .11 M. & W. 5 30 

Smith V. Marrable ...11 M. & W. R. 5 P. R. 220 

Smith et al. v. McLean et al 22 111. App. 451 igg 



CASES CITED. XXX1H 

PAGE 

Smithy. The People 99 111. 445..., 186 

Smith V. Hellinback et al 51 111. 333 93,93 

Smith V. Killeck , 5 Gilm. 3.93.. 115, 145 

Smith V. Reed ." 53 How. (N. Y.) Pr. 14. 3Q 

Smith V. Hoag 45 111. 350.. 73, 93, 167, 174, 175 

Snyder v. Norris 3 M. & S. 386 4 

Sourwine v. Truscott.... ....17 Hun (N. Y.), 433... 10 

Spear v. Lomax 43 Ala. 516 103 

Spinney v. Barbe .-...43 111. App. 585_ 336 

Spurch V. Forsyth 40 111.. 438 93, 94, 143, 154 

State V. Pierson ., .......3 N. H. 550 97 

State Y. Walker... 5 Sneed. (Tenn.) 359... 64 

Star V.Stark.. 1 Sawy. 375... 185 

Steele v. Grand T. Junction Ry. Co. .135 111. 385 151 

•Stewart et al. v. Munford... 91 111. 58 34, 131 

Stiner v. Priddy 38 111. 179 .'. 136, 141 

Stillman v. Palis 134 111. 533 137, 146^ 165 

Stobie et'al. v. Dills 63 111,433 .....~.- 24 

Stoe V. Russell et al... 36 111. 18 198 

St. John. V. Quitzow 73 111. 334 167 

St. Louis Nat. Stock Yards v. Wiggins 

FerryCo ....103 111. 514 63 

Stolberg v. Ohnmacht 50 111. 443 138 

Stolberg V. Ohmacht... 50 111. 343 361 

Stohecker v. Barnes 31 Ga. 430, 303 

Stuart V. Hamilton 66 111. 353 84 

Stubblefield V. Soule 31 111. App. 154. 317 

Stubbings v. Village of Evanston-_-136 111. 37'. '....., 354 

Sutherland v. Goodno w et al 108 111. 538 14, 47 

Sullivan v. Ivey... L 3 Sneed. (Tenn.) 487... 84 

T 

Tanton v. Van Alstine 34 111. App. 405 135 

Taylor Landlord'and Tenant Sec, 66 and 67 

...37,30,31,49,131,133,315 

Taylor V. Bailey 74 111. 178. .r ..309,310 

Taylor v. Taylor 64 Ind. 856 368 

Taylor v. White 1 T. B. Mon. (Ky.) 37 178 

Taylor et al. v. Koshetz 88 lU. 479 319 

T. Est. V. Devers 3 Black F. 80 194 

C 



XXXIV OASES CITED. 

PAGE 

teeney, V. Child 1 Maule & Selwin, 262 16 

Thielmanetal. v. Carr et al --75 111. 385 226 

Thorn V. Reed 1 Ark. 480... 126 

Thome v. Lucket .5 C. B. 38. 29 

Thompson v. Mead - 67 111. 395 238,340,242 

Thomsen V. McCormick 136111.135 190 

Thomasson v. Wilson 46 111. App. 398 

70, 73, 97, 102, 104, 164, 165, 196 

The Chicago Stove Co. v. Wheeler. .14 111. App. 113 207 

The U. B. Manfg. Co. v. Lindsay.-lO 111. App. 583 308 

Tiernan v. Hinman 16 111. 400 33 

Tilghmanet al. v. Little ....13 111. 389 , 169 

Tobey Furn. Co. v. Kowe ...18 111. App. 393 51 

Toler V. See.brook. 39 Ga. 14 338,230 

Tomle V. Hempton '..139 111. 379 208- 

Torapson v. Sornberger.. 59 HI. 326 

-.63, 92, 93, 110, 143, 157, 174 

Townsend v. Gilsey ^ ..-7 Appr. (Ms.) 59 .'. 355 

Townsend v. Brooks 5 Cal. 52 141 

Tolman et al. v. Green et al'. 39 111. 335 266, 367 

Tucker v. Phillips '. 5 Metcalf (Ky.), 416... 63 

V 

Vance v. Funk. 3 111. 363 4 

Van Hook v. Story 4 Humphries (Tenn.), 59 99 

Vanarden V. Decker .Paine, 108 106 

Vail V. Butler.. 49 Cal. 74 .'. 113 

Vansant V. AUmon." 33 lU. 30 163 

Vanderhiirell V. Storrs 3 Conn. 208 213 

Van Rensselaer v. Jones 5 Denio R. 449, 453 239 

Venmunv. Venmun 56 111. 330 117, 121, 134, 134 

Voltz V. Harris et al 40 111. 155 368 

w 

Wade V. Newbern -.77 N. C. 460 4 

Wadev. "Flalligan 16 111. 507 33,303, 244 

Walker V. McGill 40 Arkansas 38 185 

Walker v. Shoemaker. 4 Hun (N. Y. S. C), 

K- 579 ." 318 



PASteg CITED. xxSv 

PAGE 

Walker V. Wilson __53 111, 353 _.- 9 

Walker etal. v. Tucker et al 70 111. 537 , 33,251 

Walker v. McDonald 28 111. App. 643.. 38 

Walker etal. v. Ellis etal... 13 III. 470 19, 123, 131 

Walter v. Dewey 16 Johns R. 233 229 

Wallace V. Headley- - 23 Pa. St 106 13 

Wallace v. Hall 32 Kati. 271.... 190 

Wallv. Goodenough ,.16111. 415 33, 110, 112 

Warner V. Hale et al 65 111. 395.... 18 

Wart. Cr. L., vol. 2, sec. 1083 63 

Watson et al. v. Hooten Exr 4 111. App. 294.....>... 206 

Watson V. Whitney..... 23 Cal. 375 151 

Watson T. Hankins ....".-13 la. 547 41 

Watt V. Soofield 76 111.261 242 

Watts V. Coffin 11 Johns. 495 316- 

Wear v. Killeen 38 111. 259 155 

Webster etal. v. Nichols et al ! 104 111. 160 

L7, 34, 37,45, 338, 343 

Webb V. Hayman.., 40 111. App. 335 103 

Weist V. The People 39 111. 507 154 

Welford V. Beazley ..3 Atk. 503 , 5 

Wells V. Hogan Breese, 337 142,154,160 

Wells V. Reynolds 8 Scan. (111.) 191 191 

Wells V. Mason etal 4 Scram. (111.) 84 _ 21,168 

Werner v. Ropiequet ^ 44 111. 5?2 235 

Wescott V. Arbuckleetal 12 Bradw. 579 61, 104 

Weston V. Haley - 27 Vt. 3831 139 

Westv. Frederick 63 111 191 83,85 

Wetsel V. Mayers etal 91 111.' 497 338,339,343 

Wheelen v. Fish -' 2 Bradw. ;t47 

93, 116, 165, 173, 179 

Whiting V. Brastow 4 Pick. R. 310... 226 

Whitaker et al. v. Gautier 3 Gilm. 443.. ......93, 100, 145 

White V. Mayhard 111 Mass. 250 38 

Whitney v. Allaire.. 1 N. Y. R. 305 to 310 331 

White V. Suttle ■. 1 Swan (Tenn.), 169... 141 

Whittimorev. Gibbs 24 N. H. 484.. 17 

Wilburn v. Haynes 53111. 207 84 

Wilcox V. Radden 7 111, App. 594 7 



:^XXV1 OASES CITED. 

PAGE 

Wilyes V. Whitehead 89 Pa. St. 131 9 

Wilder et al. v. House _48 111. 379 67, 72 

Wildermann et al. V. Sandusky 15 111. 59 I ^.. 191 

Willard V. Reinhardt ...2E. D. Smith, 148.... 37 

Williams v. Newcomb 16 Mo. 185 186 

Williams V. Vanderbilt 145111. 138 37, 38, 136 

Williamson v. Paxton 18 Gratt. (Va.) 475 84,106 

Wilier V. French... _ 37 111. App. 76 137, 188 

Windett V. Horlbut 115 111. 403__ 156 

Wineman et al, v. Hughson _.44 111. App. 29 40 

Witz V. Haynes 43 Ind. 470^ 141 

Wolcott V. Sullivan.. 9 Paige (N. Y.), 117.. 204 

Wolz V. Sanford .* 10 111. App. 136 7 

Wood V. Tucker.. _ .66 111. 376 368 

Woodward V. Blanehard 16 111.434 163 

Wood on Landlord and Tenant, 304 _._30, 37, 30, 33, 37 

Woodward V. Cone .73111. 341 32 

Wright V. Lattinetal 38 111. 293 

.24, 197, 201, 206, 217, 351, 254 

Y 
Yoderv. Barley 3 Dana (Ky.) 245 107 



LAW OF 

FORCIBLE ENTRY AND DETAINER. 



CHAPTER I. 

THE LAW OF THE LEASE. 

Section 1. Definition. 

2. Written leases. 

3. Signature and seal. 

4. Implied leases. 

5. Parol leases. 

6. Parol agreement with the leas". 

7. Fraud in leases. 

8. What may be leased. 

9. Consideration. 

IQ Agreement for a lease. 

11. Present demise. 

13. Time. 

'Kinds of Tenancy. 

13. Tenancy at will. 

14. Tenancy at sufferance. 

15. Tenancy hy the month. 

16. Tenancy by the year. 

17. Tenancy for life. 

18. Covenants. 

19. Express covenants. 

20. Implied covenants. 
31. Surrender of leases. 
33. Rooms and lodgings. 

33. Who are lodgers. 

34. Who are tenants. 

35. Lien on baggage for board. 

36. Rights of lodgers. 



2 DEFINITION. [§ 1- 

37. Landlord defined. 

Forfeiture of Leases. 

28. Nature of forfeitures. 

29. Forfeitures at common Jaw. 

30. Under the statutes. 

31. Waiver of forfeiture. 

Attornment. 

32. Definition. 

33. Implied attornment. 

^ 1. Definition. — The word "lease" has been derived 
from the Saxon word " leapu'ni " or "leasum," "for 
that the lessee cometh in by lawful means." A lease is 
a contract for the possession and profits of lands and tene- 
ments, either for life or for a shorter term.' A better 
and clearer definition is a conveyance of any lands or 
tenements (usually in consideration of rent or other 
annual recompense) made for life, for years, or at will, 
but always for a less time than the lessor has in the 
premises. 

The lessor is the person who grants the lease, and the 
lessee, the person to whom the lease is made.'' 

"To constitute a valid lease, it is not essential that 
the building which is the subject of the contract should 
be erected at the time the lease is inade, or that the 
lessor should at that time be the owner of the ground 
upon which the building is to be placed." ' 

A lease is a contract between landlord and tenant, fix- 
ing the terms of the tenancy. The Eev. Stat., chap, so, 
sec. 13, says: "The term 'lease,' as used in this act, 

' Bouv. Law Die. 

- Anderson Dictionary of Law, 606; 2 Bl. Ck)m. 317. 

8 Haven & White v. Wakefield, et al., 39 111. 509. 



§ 2. J WRITTEN LEASES. 3 

shall include every letting, whether by verbal or written 
agreement. ' ' With many persons the word lease is used 
only to designate a written lease, but in law the contract 
of letting is the lease, whether written or verbal, and the 
written document is simply evidence of the contract. 

§ 2. Written leases.— If a lease is in writing, it does 
not need to be under seal ; nor does it need to be acknowl- 
edged or recorded to give it validity ; and the lease can 
be made by the landlord or his agent, and it is not neces- 
sary that the agent should have other than verbal author- 
ity from his principal to authorize him to execute the 
lease without seal. But if the lease is made in writing 
under seal, in that case the agent must have authority 
under seal to act. 

" An agent can execute a sealed instrument for and on 
behalf of his principal only when he has authority to do 
so in writing, under seal. ' ' ' But as leases are not 
required to be sealed, an agent can make a valid lease 
on verbal authority only. 

Written leases are frequently prepared in duplicate, 
'one of which duplicates is executed by the lessor, the 
other by the lessee. In such case, both papers must be 
treated as a single instrument and must have the same 
legal effect as if each was signed by both parties at the 
same time. 

In some state? a lease is required to be under a seal the 
same as a deed; but in the State of Illinois a lease need 
not be under seal to be valid between the parties.' 

' Lake v. CampbeLi; 18 111. 106; Loach v. Farnum et al., 90 111. 368; 
Beidler et al. v. Fish, 14 III. App. 20. 
2 Lake v. Campbell, 18 111. 106. 



-i SIGNATURE AND SEAL. [§ 3. 

§ 3. Signature and seal. — An instrument required to 
he sealed must have a scroll, the word " seal " or some- 
thing for a steal; " witness my hand and seal " without 
a sealis not a sufficient sealing.' 

The proper — not essential — words to constitute a lease 
are " demise, grant and to farm let." 

The date of a lease is not part of its substance, its real 
date being the time when it is delivered. 

The names of the lessor and lessee in a formally worded 
lease, generally appear near to its commencemeiit, after 
the date. Manifestly the document is incomplete unless 
their names appear somewhere in it ; and, as just remarked, 
a lease under the statute must be subscribed by the lessor 
or his properly authorized agent. 

Leases may be made by written contract or may be 
implied from acts and words of the parties. 

It is essential to a complete written lease that the 
parties affix their signatures thereto, or such an act of 
recognition as would in law amount to a signature; until 
some such act or thing is done,, it is not a lease. ^ 

A signature to a lease may be made with a lead-pencil 
or in ink, or if the party so signing is in the habit of 
using a' stamp with his name upon it as his signature, an 
impression of this made by him is sufficient." 

And it was held, that where a letter has bfeen written 
b^' a party to a lease, to another party to it, referring to 

' Vance v. Funk, 3 111. 263; Doe v. McMahan, 3 Scam. (111.) IS (and 
note) ; Eames v. Preston, 20 111. 389. 

- Clemens v. Bloomfleld, 19 Mo. 118; Wade v. Newbern, 77 N. C. 460. 

'Snyder v. Norris, 3 M. & S. 286; Clason v. Bailey, 14 Johns (N. 
Y.), 84. 



§ 4.] IMPLIED LEASES. 5 

it and acknowledging- it as his contract, it vas sufficient 
to bind sucli party.' 

A lease by an infant lessor, himself, is voidable by him 
upon attaining majority, and the lessee, doubtless, in the 
meantime has no valid- title to the possession; Accept- 
ance of rent accruing after majority is a confirmation,' 
and will render the lease binding. In the case of an 
infant lessee, continuance in possession of the premises 
after majority operates ks a confirmation and binds him 
to the payment of the rent. 

A receipt expressing the terms and nature of the ten- 
ancy may be a lease. For instance, the following was 
sustained as a lease : ' 

'•Chicago, Dec. 7, 1871. 

"Eeceived of M. F. Casey ten dollars ($10.00) on 
rent of store on corner of Lake and Canal streets (No. 
22), which Mr. Casey is to have for one hundred dollars 
(§100.00) per month until May, 1873." ' 

If a tenant signs a lease, retains one and makes, signs 
and seals a duplicate thereof and sends the same to the 
lessor, this in law will amount to an acceptance, of the 
lease, notwithstanding the lessee may send with the 
duplicate a letter, stating that he does not assent to the 
terms of the lease as to the amount of rent he is to pay. 
AYhere his deliberate acts, under seal, evince an accept- 
ance of the lease, his words cannot be received to a con- 
trary intent.' 

§ 4. Implied leases. — Where a lease recites that the 

' Welford v. Beazley, 3 Atk. 503. 
i' Berrington v. Casey, 78 111. 317. 
^Leiter v. Pike et al., 127 III. 287. 



6 IMPLIED LEASES. [ § 4. 

lessee is to pay a certain sum as rent for the premises, 
and he accepts thei lease, which he may do by retaining 
the lease without objection, by going into possession under 
it or other similar act, this makes him a direct promissor 
to pay the rent, although he has not signed or executed 
the instrument.' 

The acceptance of rent by a landlord from a tenant 
who is holding over after the termination of his tenancy, 
will amount to an election on part of the landlord to con- 
tinue the tenancy on the same terms as before.'' 

Where the old lease expires, the tenant holds over and 
the landlord receives the rent, it is presumed, as a matter 
of law, that the old lease is renewed in all its terms. ' 

Where a tenant under a lease for a year or years holds 
over, it will be construed as an implied agreement that 
he shall hold for a corresponding period, upon the same 
terms, unless there be some act of one or both of the 
parties to rebut the implication." 

Six months prior to the end of the term, the landlord 
said to the tenant : "If you stay on, you \Yill have the 
rent reasonable and I will throw off for heretofore. ' ' The 
tenant said nothing ; nothing further was said and the 
tenant held over. As no notice was given and no new 
arrangement made, the tenant was held to occupy the 
premises as tenant from year to year and must pay the 
same rent as for previous years. ' 

Where a tenant occupies under a lease for one j'ear and 

» McFaiiane v. Williams, 107 111. 33. 
- Goldsborough v. Gable, 140 111. 269. 
' Miller v. Ridgely, 19 111. App. 806. 
* Prickett v. Eitter, 16 111. 96. 
« Holle}' et al. v. Metcalf, 12 111. App. 141. 



§ 4. J IMPLIED LEASES. 1 

holds over without any new agreement, the landlord may. 
elect to treat him as a tenant for anothei' year, on the 
same terms.' 

A tenant for years holding over after the expiration of 
his lease without any new arrangement with his landlord 
may be treated as a tenant for another year upon the 
terms of the original lease.'' 

If the assignee of a leasehold estate continues tooccupj"^ 
the premises after the term has expired, without any new 
agreement, the law will bind him to the same terms by 
which he was bound by the expired lease.' At common 
law " covenants " it is said, " ran with the land but not 
with the reversion. Therefore the assignee of the lessee 
was held to be liable in covenant and to be entitled to 
bring covenant, but the assignee of the lessor was not." 

Where a tenant holds over after the expiration of his 
term, with the implied assent of the lessor, it will be 
upon an implied undertaking or liability to pay rent 
thereafter, on the same terms as in the original lease. * 

Where a tenant took a lease of certain premises, which 
was canceled before the tenant came into possession 
thereof, but the tenant, being in possession under an old 
lease, remained a few days in occupancy of the premises, 
and, upon receiving notice from his landlord, that he 
would be considered as holding over under the prior 
lease, immediately vacated the premises, in such case 
there is no implied tenancy for another year. ' 

1 Quinlan v. Bonte, 25 111 App. 340. 

2 Wolz V. Sanford, 10 111. App. 136. 

'' AVebster et al. v. Nichols et al., 104 111. 160. 
^ Clapp et al. v. Noble, 84 111. 63. 
6 Wilcox V. Raddin, 7 111. App. 594. 



8 PAROL LEASES. [ § 5. 

Where a tenant left certain property in the house and 
offered the same to the lessor in payment of rent due and 
the lessor took time to consider whether he would take 
the same, but gave no notice to the tenant that he would 
not accept it in payment for some considerable time, it 
was held that his silence implied assent and justified the 
jury in finding a payment of the rent.' 

Where a tenant for a year or 3'ears holds over after 
the expiration of his lease, without making any new 
arrangement with his landlord, the landlord at his elec- 
tion may treat the tenant as a trespasser or as a tenant 
for another year, upon the same terms as in the original 
lease, and this though the tenant has no intention of 
holding over for a year or of paying the same rent. The 
law fixes the tenant's liability for holding over independ- 
ent of hi,s intention. The legal presumption of a renewal, 
from the holding over, can not be rebutted bj' proof of a 
contrary intention on the part of the tenant alone. ^ 

§ 5. Parol leases — A parol lease is where the parties 
agree either orally or by a writing not under seal." 

The taking of a new lease bj^ parol is, by operation of 
law a surrender of the old one, although it be by deed, 
provided it be a good one and pass an interest, according 
to the contract and intentions of the parties." 

A lease of land by parol, for a term not exceeding one 
year, is valid." 

' Dills V. Stobie et al., 81 111. 203. 

* Clinton Wire Cloth Co. v. Gardner et al., 99 111. 151. 

3 Hallis V. Burns, 100 Pa. St. 206. 

■" Ryan v. Kirchberg, 17 111. App. 133. 

« Bull V. Griswold, 19 111. 631. 



§ 5.] PAEOL LEASES. 9 

After a lease has been executed, the parol promises of 
the landlord to repair are void for want of consideration.' 

A parol lease .of premises for a year, to commence in 
future, is not an executory contract prior to the time of 
taking possession. It vests a present interest in the term 
and cannot be rescinded by either party alone. In case, 
therefore, of a refusal of the lessee to perform, the lessor 
is not required to lease to another if he has an oppor- 
tunit}' and is not confined to his remedy for actual dam- 
ages, but may refuse to accept a rescission and hold the 
lessee liable for rent." 

Although a lease may be void by the statute of frauds, 
if the tenant goes into possession thereunder and remains 
for a time, the lease inay be looked to in determining the 
amount of rent due. ' 

A parol lease for one year is valid, and if the tenant 
under; such a lease holds over for a portion of another 
year the lessor may elect to treat him as tenant frbm 
year to year and recover the value of the premises as 
upon a lease from year to year." 

A parol license by lessor to lessee to remain in posses- 
sion after |the expiration of the lease, made' without con- 
sideration, is subject to revocation." 

A verbal agreement changing a contract under seal is 
valid if supported by a new consideration and not within 
the statute of frauds." 

1 Libbey v. Tolford, 48 Me. 316. 

■^ ?ecar V. Flues, 64 N. Y. 518. 

= Evans V. Winona Lumber Co., 30 Minn. 515. 

■* Shepherd v. Cummings, 1 Ooldw. (Tenn.) 354. 

' Walker v. Wilson, 52 111. 353. 

« Wilyes V. Whitehead, 89 Pa. St. 131. 



10 PAEOL AGEEEMENT NOT BINDING. [ § 6- 

A lessee who occupies premises, cannot avoid paying 
the rent agreed upon in a parol lease for five years, made 
by a married woman without her husband's concurrence. 
His liability for rent results from his occupancy, and the 
terms are properly regulated by a lease otherwise void.' 

§ 6. Parol agreement with the lease not binding. — 

A verbal agreement to give a lease is not binding if any 
essential matter affecting the rights of the parties — as 
here the time of commencement — is left open to future 
consideration and remains unsettled.' 

The validity of an oral modification of an unsealed 
lease agreed to during the term of the lease, if acted upon 
by both parties appears yet plainer ; as where a verbal 
arrangement being made that future rent under such a 
lease shall accrue at a reduced rate, the tenant continues 
his occupation and the landlord accepts an installment of 
rent at the reduced rate, giving a receipt as for rent in 
full. 

A written lease under seal cannot be changed by a 
subsequent verbal agreement made during the existence 
of the lease;' but a new contract, for new consideration 
may be made in the same matter. 

A parol lease ' ' by the year ' ' is for one year and binds 
the parties no longer.* 

There may be a parol reservation of the landlord's 
share in growing wheat from a written lease, under which 

1 Nash V. Berkmeir, 83 Ind. 536. 

- Sourwine v. Truscott, 17 Hun. (N. Y.), 433; Hallis v. Burns, 100 Pa. 
St. 306. 
" Breher v. Eeese, 17 111. App. 545. 
* Pleasance v. Claghorn, 3 Miles (Pa.), 303. ' 



§ 6.] PAKOL AGEEEMENT NOT BINDING. 11 

■ the lessee takes possession before the matui'ity of the 
crop." 

Where the owner of certain lands enters into an agree- 
ment with another person by which the last named party 
is to raise a crop of wheat, corn and fodder upon the 
land, the owner to furnish all the teams, horses, etc., all 
seed, wheat and corn, and all the carts, etc., and some 
guano ; the second party to do all the labor and cultivate 
and tend the crops, etc. ; the owner to have a certain 
portion of the crop and .the. other person the residue; 
held, not to be parol lease. ^ 

Where, since the amendatory acts of 1865 and 1867, 
relating to forcible entrj' and detainer, a landlord made 
a verbal lease of premises for two years and the said 
premises were occupied under the same and the rents 
paid, it was held that, although the contract was not 
binding on the parties in the first instance, because of the 
statute of frauds, yet, having been executed, no notice 
was necessary to terminate it, as in the case of a tenancy 
from year to year." 

If a lease in Avriting has been executed purporting to 
Contain the whole contract between the parties, oral rep- 
resentations and understandings which the parties have 
failed to insert will not, as already seen, be added to the 
written contract, no fraud or other ground of equitable 
interference being shown. And an express covenant or 
agreement in such a lease on any particular subject will 
prevent the implication of a further or different covenant 

> Hisey v. Troutman, 84 Ind. 115. 
' '- Currey v. Davis, 1 Houst. (Del.), 598. 
s Knecht V. Mitchell, 67 111. 86. 



12 FEAUD IN LEASE.S. [ § ''^• 

or agreement on the same subject; "all implied cov- 
enants," it has been said, "are done away by express 
ones." 

There are some engagements inferred or implied " from 
the use of certain words having a known legal operation.", 

Thus from the use in a lease of the word demise or the 
word grants or the latin words conceHul or demisi, the 
engagement is implied for the lessee's quiet enjoyment 
during the term, whether the lease be sealed or parol. 

g 7. Fraud in leases 'But if the lessee, by means of 

the willful wrong of the lessor, acquire by the lease no 
right to possession, he may recover as damages for the 
wrong, the difference in amount between the rent reserved 
and the annual value of the term, together with what 
expenses he has incurred in expectation of, and on the faith 
of the lease. 

A lease not wholly ineffectual, but tainted by fraud of 
the lessor toward the lessee, such as false representation 
concerning the quantity of land comprised in the premises 
leased, may be rescinded by the lessee before taking pos- 
session, fraud being "a thing grievous!}' amiss, and 
above all odious to the law." 

The rule concerning representations is, that a person 
representing to be true, of his own knowledge, what false 
report has caused him to believe, is to be held to the 
same responsibility as one representing to be true what 
he knows to be false. 

A parol agreement to var\' a contract under seal can- 
not be pleaded in a court of law, to defeat a recovery on 
the original undertaking; and such an agreement will 
not discharge a security from liability.' 

' Chapman v. McGrew, 30 111. 101. 



§§ 8, -9.] WHAT MAY BE LEASED. 13 , 

It is not competent to mpdify or change the terms of 
a lease or other agreements under seal, by proof of a 
subsequent parol understanding or agreement.' 

Where a landlord, at the request of the tenant, agrees 
to reduce the rent reserved in the lease, and there is no 
evidence tending to show the tenant had surrendered the 
premises or offered to do so and refused to execute the 
terms of the lease, or that there was any reason w-hy he 
could then have surrendered the premises and refused to 
carry out the lease, such parol agreement to reduce the 
rent will be void for want of consideration and the land- 
lord may collect the rent provided for in the written 
lease." 

Where the landlord agreed verbally, outside the lease, 
that the tenant should have the use of a Avell on another 
lot, and tfie tenant was deprived of the use by reason of 
the acts of the landlord, it was held that this could not 
aihpunt to an eviction so as to defeat the collection of 
the rent, as the parol agreements were, not named in the 
lease, but the tenant's right in respect to them grew- out 
of a different contract.' 

§ 8. What may toe leased Anything corporeal or 

incorporeal, lying in livery or in grant may be subject of 
a lease for instance, lands, houses, commons, ways, 
fisheries, franchises, live-stock, goods, chattels, etc.* 

§ 9.. Consideration. — Some consideration must appear 
in order to make a lease valid, although this considera- 

1 B. & O. & C. R. R. Co. T. 111. Cent. R. R. Co., 137 111. 9. 
' Goldpborough v. Gable, 140 111. 369. 
« Lynch v. Baldwin, 69 111. 310. 
■ •'Wallace v. Headley, S3 Pa. St. 106; Miokle v. Miles, 81 Pa. St. 30. 



14: AGEEEMENT FOE A LEASE. [§ 1^. 

tion need not consifet of what is technically called ' ' rent, ' ' 
or a periodical rendering of compensation for the use of 
the premises ; it may be a sum in gross or the natural 
aiffection which one party may have for another; it may 
consist of grain, animals or the .personal services of the 
lessee ; and the promise to pay rent to the owner of the 
premises is a sufficient consideration for an agreement to 
lease the premises to a person making such promise.' 

Where one holds under a lease for monthly payments, 
an agreement to pay semi-monthly is a safe consideration 
for a new lease for less rent." 

^ 10. Agi'eement for a lease A clause in a lease for 

one year, giving the lessee the option, on a certain con- 
dition, to renew the lease for another year, is not a 
demise to take effect at the expiration of the first year ; 
it is a mere covenant or undertaking of the lessor to let 
the lessee have a second term, which may be enforced on 
bill for specific performance, or upon which an action of 
law may lie for a breach.' 

The privilege reserved in a lease, permitting the tenant, 
on notice, to extend the term for one or more years, is 
not a present demise, but a mere covenant, which may 
be enforced in chancery, or upon which an action of law 
may be maintained." 

A lease for one year, providing that the lessee may 
have the privilege of renewing the lease for five years, 
with the privilege to him of purchasing the premises, 

' MoFarlane v. Williams, 107 111. 33. 

= Goldsbrough v. Gable, 86 111. Ap. 363. 

3 Sutherland v. Goodnow et al., 108 111. 528. 

•■ Sexton V. Chicago Storage Co. et al. , 139 111. 318. 



§§ 11, 12.j PRESENT DEMISE. 15 

etc., does not constitute a present demise of the premises 
for the extended time, which can be enforced in a cOurt 
of law.' 

§ 11. Present demise "When the agreement in the 

lease is such that bpth parties are bound by the agree- 
ment that the lease should be actually executed, it con- 
stitutes a present demise ; but where the tenant only is 
bound to take the premises and pay rent for the one 
year, it does not constitute a present demise for the 
extended term.'' 

Where a party in possession of premises under an 
unexpired lease, agreed with his landlord verbally that he 
should have the premises for another year, commencing 
at the expiration of the existing term, , upon the same 
terms, a written lease to be executed, and a few days 
before the new term commenced the landlord withdrew 
his proposition and rescinded the verbal agreement, so 
that there was no time before such rescission that the 
lessee could have entered under the \'erbal agreement ; 
held, that this was not a present leasing, but only an 
agreement for a lease.'' 

§ 12. Time. — When no date is fixed for the beginning 
of the tenancy, the time at which the tenant enters into 
the premises is to be regarded as the beginning of the 
tenancy.* 

A lease for " the whole time that the lessee may be 

1 Hunter v. Silvers, 15 III. 174. 

^Hunter v. Silvers, 15 111. 174; Tenney v. Child, 1 Maule & Selwin, 
262. 
8 Griffin v. Knisely, 75 111. 411. 
* Eberlein v. Abel, 10 111. App. 626. 



16 KINDS OF TENANCY. [§13. 

postmaster," expired with the commission held by the 
tenant at the time the lease was made.' 

A lease for " as long as wood grows or water runs " 
conveys a fee.' 

Kinds of Tenancy. 

§ 13. Tenancy at -will A tenancy at will is where 

one person lets land to another, to hold at the will of 
the lessor. A person who takeS possession of premises 
under an agreement for a lease but refuses to carrj^ out 
the agreement, is regarded as a tenant at will.^ 

Where parties move into the house without any terms 
or rent agreed on, they are mere tenants at will and a 
demand for possession will terminate the tenancj''. 

If a tenant be placed on the land without any terms 
prescribed or rent reserved, and as a mere occupier, he 
is strictly a tenant at will." 

Where a tenant is let into the possession of premises 
under an agreement to take a lease, which he afterwards 
refuses to do, he is a mere tenant at will after his refusal 
to make a lease." 

A verbal lease of land for a term of twenty years, at 
a rental of one dollar for the entire term, is a tenancy at 
will, a mere license and not assignable." 

A tenancy at will at the common law, required no 

' Easton v. Mitchell, 21 111. App. 189. 
'' Arms V. Burt, 1 Vt. 806. 

'Herrell et al. t. Slzeland et al. , 81 111. 457; Dunne v. Trustees 
of Schools, 39 111. 578. 
^ Herrell et al. v. Sizeland et al., 81 111. 457., 

5 Dunne v. Trustees of Schools, 39 111. 578. 

6 Packard v. C. C. C. & St. Louis R. R. Co., 46 111. App. 244. 



§ 14.] KINDS OF TENANCY. l7 

notice to terminate it; but the statutory notice must 
generally be given to effect a termination of such ten- 
ancy. ' 4 

The interest of a tenant at will is not such an estate 
as can be assigned." 

And if an assignment is made, it terminates the 
tenancy.'' 

*^ 14. Tenancy at sufferance. — A tenant at suffer- 
ance is one who comes into possession of land by lawful 
title but holds over by wrong after the determination of 
the interest. He has only a naked possession and has 
no estate which he can assign or transfer.* 

A lessee holding Qver after- the expiration of a tenancy 
at will is a tenant at sufferance. ' 

Where one buys a lot and permits another to occupy 
it, under no particular agreement as to time, the latter 
is a tenant at sufferance." 

A mortgagor, after a foreclosure and sale of the prem- 
ises, is a tenant at sufferance.' 

Tenants _/J<'^' auter vie after the death of the cestui que 
■wie, tenants for years, whose terms have expired, tenants 
at will, whose estates have been determined by alienation 
or by the death of the lessor, . under-tenants holding 
over after the expiration of the original lease and a lessee 

' Prickett v. Bitter, 16. 111. 96. 
» Whittimore v. Gibbs, 34 N. H. 484. 
» King V. Lawson, 98 Mass. 309. 

^ Proctor et al. v. Tows et al., 115 111. 138; Coomler v. Hefner, 86 
Ind. 108. 

i^Cook V. Norton et al., 48 111. 30; Brown v. Smith, 83 111. 391. 
« Proctor et al. v. Tows et al., 115 III. 188. 

■'Kinsley v. Ames, 3 Met (Mass.) 39; Mason v. Grey, 36 Vt. 308. 
■:> 



is KINDS OF TENANCY. [§15- 

who agrees to deliver possession by a particular day and 
holds over, are tenants at sufferance.' 

A tenant at sufferance at the common law is not liable 
for rent, nor entitled to emblements. ° 

Under a tenancy at sufferance, the landlord can term- 
inate the relation at his pleasure. "^ 

§ 15. Tenancy Iby the month. — Where a party enters 
into possession of premises under a verbal letting, which 
is void under the Statute of Frauds, agreeing to pay 
rents monthly, and pays rent under the contract a while, 
he will become a tenant from month to month and as 
such is entitled to notice to quit. 

A letting by parol for a certain sulu per month, noth- 
ing being said about a year, constitutes a lease from 
month to month, and the fa,ct that the tenant holds over 
for more than a year can not make him a tenant from 
year to year. 

Where a party enters possession of premises under a 
verbal letting, which is voidable under the Statute of 
Frauds, agreeing to pay rent monthly, which he pays as 
it accrues, he becomes a tenant from month to month." 

A person in possession of real estate under a written 
agreement for a lease for a longer term than one year, 
occupies under a verbal leasing within a statute of frauds, 
and his tenancy is one from month to month." 

> Brown v. Smith, 83 111. 391. 
- Flood V. Flood, 1 Allen (Mass.), 317. 

^ Dixon V. Haley, 16 111. 145; Emmons v. Scutter, 115 Mass. 367; 
Mason v. Grey, 36 Vt. 308; Warner v. Hale et al., 65 111. 895. 
* Brownell et al. v. Welch, 91 111. 533. 
s Blake v. Kurrus, 41 111. App. 563. 



§ 16.] I KINDS OF TENANCY. 19 

§ 16. Tenancy from year to year. — The reservation 
-of an annual rent is the leading circumstance that turns 
leases for uncertain terms into leases from year to year.' 

Where a contract for a lease provides that the rent is 
to be paid annually, but fixes no time of payment, 'and 
no contrary usage is shown, the rent will be payable at 
the end of the year." 

Where a person holds lands or tenements under a 
demise from another, under an agreement to pay an 
annual rent, without any other provision as to the length 
of the term, it constitutes a tenancy from year to year; 
in other words, a tenancy from year to year is a general 
letting, without any limitation as to time.^ 

According to the rule as held in England and many of 
the United States, a tenancy from year to year would 
continue until' one party should notify the other six 
months previous to the end of the year of an intention 
to determine it." But under the Illinois statute, sixty 
days notice prior to the end of the term will terminate a 
yearly tenancy. 

A tenant occupying premises under a written lease and 
holding over will be compelled to pay the same rent that 
the lease provided for : if it is an annual lease, and the 
rent to be paid monthly, the premises cannot be aban- 
doned and the. re^t avoided, except at the end of the 
year. ° 

' Herrell et al. v. Sizeland et al. , 81 111. 457. 
" McFarlane v. Williams, 107 111. 33. 

^Gartsideet al. v. Outley et al., 58 111. 210; Hunt v. Morton, 18 
111. 75. 
•"Walker et^l. v. Ellis et al., 13 111. 470. 
' McKinney v. Peck, 38 111. 174. , 



20 KINDS OF TKNANCV. [■§§ 17, IS, 19. 

Where a tenant went into possession of land without 
any specific contract for the payment of rent, with per- 
mission to remain until spring, and continued in possess- 
ion, raising crops for two years, it was held to be a 
tenancy from year to year and that a proceeding for 
forcible detainer, without notice to terminate the tenancy, 
could not be sustained.' 

§ 17. Tenancy for life. — A lease for life, being a free- 
hold, can be created by instrument under seal, only, but 
a lease of land for years by an individual, might at com- 
mon law, be made by mere words, no particular form of 
expression being necessary, if words sufficiently declar- 
ing the intention of the lessor were spoken. 

§ 18. Covenants. — A covenant in a lease i^ a stipula- 
tion that a certain thing has or has not been or shall or 
shall not be done; or it may be properh- said to be an 
agreement of the parties under seal." 

Each covenant in a lease belongs only to the party who 
is to perform it, and it must be taken as his language ; 
but a covenant in a lease may be a covenant of both 
parties.' 

A party has no right to recover under any contract 
until he has performed his paVt of the agreement, and 
this is true in any form of action e.c contractu and the 
jury alone are the judges as to whether or not the con- 
ditions had been performed ' 

§ 19. Express covenants in leases. — The words 

' Hunt V. Morton, 18 111. 75; Wood Landlord & Tenant, 304. 

' Randall v. Lynch, 2 East. 183. 

3 Olcott V. Dunklee, 16 Vt. 478. 

^ Harms et al. v. McCormiok et al., 133 111. 104. 



§ 19.] KINDS OF TENANCY. 21 

"demise" or "demised" in a lease import a covenant 
on part of tiie lessor of good right and title to make the 
lease and also imply a covenant for quiet enjoyment.' 

The word "demise'' in a lease imports a legal estate 
in the lessor; if the tenant be ejected from the demised 
premises by force of an adverse title and entry, he will 
be discharged from the payment of^ren^;.'' 

This agreement for quiet enjoyment, which in every 
valid lease for a definite term of years, is implied, if not 
expressed, is interpreted as assuring to the lessee legal 
entry, as well as enjoyment after entry. 

If when the lessee at or after the time fixed for the 
commencement of the term, attempts to enter under the 
lease, some person, not claiming by an adverse title, be 
in possession, the agreement is not thus broken, since 
the legal entrj' is not prevented, and the lessee may, by 
virtue of his lease, proceed against the intrucler to obtain 
possession. 

A lease of property on a monthly rental of $500 a year 
provided that on the determination thereof, by. lapse of 
time or otherwise, the lessee should yield up immediate 
possession of the premises to the lessor, and in case of 
failure to do so, the lessee should pay liquidated damages 
for the whole time such possession should be withheld, 
the sum of $30 per day. The lessee held over 105 days, 
and the proof showed that the rental value of the prem- 
ises' was $7,000 a year. Held, that the lessor was 
entitled to recover and collect from the lessee the sum 
fixed in the lease as liquidated damages. 

' Adlard v. Muldoon, 45 111. 198. ' 

■' Wells V. Mason et al., 4 Scam. (III.) 84. 



•J-2 KINDS OF TENANCY. [§20. 

The fact that negotiations for a lease of demised prem- 
ises are pending under an agreement to extend the term 
of the original lease, which negotiations failed and were 
abandoned, will not justify the tenant in holding over so 
as to relieve him from his covenant in the lease, to yield 
up to the landlord the possession of the premises at the 
end of the year. And this is so, even though the orig- 
inal lessor may have received a check for the first month's 
rent, pending such negotiations, vs'hich check was returned 
to the maker on the failure of the parties to agree upon 
the new lease.' 

A landlord gave a tenant a lease in which were these 
words, " tenant to have privilege of storing a reasonable 
number of cases in the basement. " This was held to be, 
not a leasing of the premises, but the grant of a privilege 
to the lessee to occupy for a special purpose. ° 

The covenant arising from a "demise" of premises, 
whether express or implied, only means that the lessor 
shall have such title to the premises as Avill enable him to 
have a good and unincumbered lease for the term demised. 
It implies no warranty agaitlst the acts of strangers. It 
confers upon the lessee a right to enter upon the premises, 
but nothing more." 

§ 20. Implied covenants The implied covenant for 

quiet enjoyment creates no obligation on the part of the 
lessor to place the lessee in possession of the premises. 

' Poppers V. Meagher, 148 111. 192; Bryton v. Marston, 33 111. App. 
311; Tiernan v. Hinman, 16 111. 400. 

- Cluett et al. v. Sheppard, 131 111. 636. 

'Gardner v. Keteler, 3 Hill, 330; Cozens v. Stevenson, 5 S. & R. 
424; Pendergast v. Young. 1 Foster, 33-'; Glazzolo v CJiambers et al., 
73 111. 75. 



§ 30. ] KINDS OF TENANCY. 23 

If he is kept out of possession by any act of the landlord 
or by cue holding paramount title, the lessee has a right 
of action. The amount'of damage in such case is the 
difference between the rental and the actual value of the 
premises to the lessee. ' 

The law will implj covenants for quiet possession and 
enjoyment against paramount title and against such acts 
of the landlord as destroy the beneficial enjoyment of 
the lease. ° 

There is aji implied covenant on part of the tenant, 
that he should commit no voluntary waste or nuisances 
injurious to the premises and that farming land shall be 
cultivated in a husband-like manner and not in a manner 
materially different from its former use.' 

The parties to a lease may provide therein, that the 
lessee waives his right to notice of an election to declare 
the term ended, or for any demand for the payment of 
rent, or for demand for the possession of the premises, 
and provide that the simple fact of the non-payment of 
rent shall constitute a forcible detainer. Such an agree- 
ment is binding on the lessee, so that the action will lie 
upon the simple proof of the non-payment of rent 
reserved." 

The lessee cannot have his lease set aside and be 
released from his covenants to pay rent, from the mere 
fact that a prior tenant, whose term has expired,, holds 
over without rio^ht. 

1 Gazzolo V. Chambers et al., 73 111. 75. 

' Wade V. Halligan, 16 111. 507; Berrington v. Casey, 78 111. 317. 

2 Walker et al. v. Tucker et al., 70 111. 537; Hughes v. Van Stone 
24 Mo. App. 637; Nave v. Benney, 23 Ala. 383. 

■• Espen et al. v. Hinchliffe, 131 111. 468. 



24 KINDS OF TENANCY. [§21- 

The lessee, having the right of possession, should take 
legal steps to obtain the possession from such prior 
tenant. ' 

g 21. Surrender of leases The tenant' cannot sur- 
render premises leased to him before the expiration of 
the term, so as to absolve himself from the payment of 
rent thereafter, without the consent of the lessor; and 
the abandonment of the premises, with notice thereof to 
the lessor, will not exonerate the lessee thereafter from 
his obligation to pay rent, unless the lessor assents 
thereto." 

Any act of the landlord which renders the lease unavail- 
ing to the tenant, discharges such tenant from the terms 
and conditions of the lease, and he may abandon it." 

Where a tenant surrenders his lease in view of a con- 
templated sale of his improvements, to enable the lessor 
to make a new lease to the purchaser, the original lease, 
in law, if not in equity, is canceled and the lessor invested 
with the legal 'title to the term, and, without any new 
writing to restore the term, the lessor may again lease 
and pass the, legal title free from the claim of tlie first 
lessee. ' 

The surrender of a lease cannot be effected by the act 
of one party only ; the concurrence of both is necessary." 

Where a written lease contains the stipulation that the 
tenant may, after the expiration of the term, continue to 

' Field et al. v. Herrick et al., 101 111. 110. 
- Stobie et al. v. Dills, 63 111. 433. 
3 Wright V. Lattin et al., 38 111. 393. 
■■ Stewart et al. v. Munford, 91 111. 58. 
' Lewis et al V. Pish, 40 111. App. 378. 



§ 22. J KINDS OF TENANCY. 35 

occupy by the month, but does not bind himself to do so, 
each party, in that case has an equal right after the 
expiration of the term to put an end to the tenancy by 
the month by giving the proper notice.' 
* Where a tenant had a Avritten lease, providing that 
" he should have the privilege of a further lease of five 
years after the expiration of his term," the five years 
elapsed and the teuant elected to renew. An action of 
forcible entry and detainer was brought to oust him.' It 
was held, that under the statute amended, appellees had 
a right to defend under the covenants in the lease,, pay- 
ing all installments of rent as they became due, the 
covenant for a lease being equivalent to a lease written 
out in full form." 

§ 32. Rooms and lodgings. — There is another 
species of tenancy, called lodgings, which occurs when 
only part of a tenement is let to another; and this 
usually consists of furnished apartments. Being a con- 
tract for an interest in lands, it is within the statute of 
frauds, and must, therefore, be in writing, in all cases 
where the statute requires a lease to be in writing. 
Thus, where the plaintiff took a house, partly furnished, 
at a certain rent, and the defendant agreed to send in all 
other necessary furniture within a reasonable time, it 
was held that the defendant's agreement to send in the 
furniture was an inseparable part of a contract for an 
interest in land, and ought, therefore, to be in writing. 

But a contract with a keeper of a hotel, or boarding 

' McDevitt V. Lambert, 80 Ala. 536. 

' Eichhorn v. Peterson et al.,16 111. App. 601. 



26 KI2JDS OF TENANCY. [ § 22. 

house, for board and lodging, paying separate prices for 
each, whether it be by the week, month, or year, creates 
no relation of landlord and tenant between the parties ; 
for the lodger acquires no interest in the real estate, the 
contract being entire for board and lodging. 

" Lodgers are entitled to all the privileges of tenants, 
and if a man take lodgings on the first or second floors 
of a house, he has a right to the use of the door-bell, the 
knocker, the sky-light of the staircase, and the water- 
closet, unless it is otherwise stipulated at the time of tak- 
ing the lodgings ; and if a landlord deprives a lodger of 
the use of either, an action lies. He is also, in general, 
subject to the same liabilities as other tenants; and is 
not justified in quitting his apartments withojit proper 
notice, even from fear, however reasonable, that his 
goods may be seized for his landlord's rent. If a house 
is divided into several apartments with an outer door to 
each apartment, and no communication with each other 
subsists, the several apartments are, for certain purposes, 
considered in law as distinct mansion houses; but if the 
owner lives in the house, all the untenanted apartments 
will be considered as parts of his house. In general, 
however, the question, what shall be deemed the mansion 
house of the party, turns upon the fact of their being an 
outer door or not. Thus, chambers in inns of court and 
in cottages, which have each of them an outer door that 
opens upon the common staircase, have been held, in 
cases of burglary, to be the houses of the respective 
occupants. But this privilege extends only to the pur- 
poses of protection for a man and his familv; a bailiff, 



§ 23.], KINDS OF TENAKCY. 37 

therefore, in the execution of mesne process, may break 
open the door of a lodger, having first gained peaceable 
entrance at the outer door of the house." ' 

A person who agrees to take furnished lodgings, but 
does not enter, is not liable to an action for use and 
occupation." 

Letting lodgings is not a breach of a covenant not to 
under-let." 

A verbal agreement to take ready furnished lodgings 
" for two or three years " is a contract for an interest in 
land within the meaning of the statute of frauds, and is 
not valid unless in writing." 

The distinction between a boarding-house and an inn 
is, that in the former, the guest is under, an express con- 
tract for a certain time at a certain rate ; in the latter, 
the guest is entertained from day to day upon an implied 
contract." 

Assuming it to be a usage in lodging-houses, that the 
keeper, when the lodger is about to quit his apartments, 
has license to enter and show them to strangers who are 
inquiring for lodgings, there does not arise out of that 
usage, any liability on the keeper, if goods are then 
.stolen, for not using due and proper care to prevent such 
persons from carrying away the lodger's goods then in 
the apartments. " 

'Taylor's Landlord and Tenant, Sees. '66 and 67. 

-Edge V. Stafford, 1 Tyr. 293; Edge v. Stafford, 1 Crompton and 
Jervis, 391. 

2 Pitt V. Laming, 4 Camp. 77; Reiohenbacher v. Pahmeyer, 8 
Bradw. 317; Greene v. Hague, 10 Bradw. 598; Wood's Landlord and 
Tenant, Sec. 539. 

^Ely V. Ely, 80J11. 5^2. 

= Willard V. Reinhardt, 2 E. D. Smith, 148, 

' Willard v. Reinhardt, 3 E. D. Smith, 148. 



28 KINDS OF TENANCY. [§§23, 24. 

§ 33. Who are lodgers A lodger is one who inhabits 

a portion of a house of which another has the general 
possession and custody. ' 

The distinction between a lodger and tenant seems to 
be, in a keeper reserving to himself the legal possession, 
custody and care of the whole house.' 

It is not easy to give a general definition of the word 
'■ lodger," but it involves more than the word " tenant;" 
there is a personal relation. A lodger lodges with some- 
body who has control over the house. The question 
whether a person is a lodger, or not, depends partly 
on the contract between him and his landlord and partly 
on the fact that the landlord retains control over the 
house. The lodger has no interest in the real estate 
except such as is necessary for the enjoyment of the 
apartments rented ; he enters into the contract with the 
keeper of the house, who retains control over it. Should 
a lodger, however, lease apartments in a house and take 
full possession and control of the apartments leased, the 
relation of landlord and tenant would at once be estab- 
lished.' 

§ 24:. Who are tenants When the owner of a house 

takes a person to reside in part of it, though such person 
has exclusive possession of the rooms appropriated to him 
and the uncontroled right of ingress and egress ; yet, if the 
owner retains his character of master of the house, the 
individual, though occupying part of it, occupies it as a 

' Bouv. Law Diet. 

« White V. Maynard, 111 Mass. 250; Cochmne v. Tuttle, 75 111. 361. 
'McMillan v. Solomon, 42 Ala. 356: Richardson v. Richardson, 75 
Mass. 213. 



§§ 25. 26. J - KINDS OF TENANCY. 29 

lodger only and not as a tenant. The fact of the party 
having or not having the key to the outer door is not 
decisive of the question ; but the question depends upon 
Avhether or not the owner of the house resides on the 
premises, retaining his quality of master and reserving 
to himself the general control and dominion of the whole. 
If he doesj the inmate is a mere lodger ; that is the funda- 
mental proposition, that the landlord must reserve control 
and dominion over the house. If the owner gives up'his 
house to another person to live in, the occupant is a 
tenant. Therefore, if you go out and give up the house 
to him, he is a tenant and not a lodger." 

^ %h. Lieu on baggage for board The statute of Illi- 
nois, chap. 82, sec. 48, provides as follows : " Plotel, inn 
and boarding-house keepers shall have a lien upon the 
baggage and other valuables of their guests or boarders 
brought into such hotel, inn or boarding-house, by such 
guests or boarders, for the proper charges due from such 
such guests or boaixlers for their accommodations, board 
and lodgings, and such extras as are furnished at their 
request." 

If a lessee of rooms, before the expiration of the term, 
abandons the premises, delivers the key to the landlord's 
agent, and notifies the landlord of the fact by letter, and 
he, in reply to the letter, makes no objection and retains 
the key, this will be suificient evidenpe to authorize a 
jury in finding a termination of the tenancy.'' 

§ <J6. Rights of lodgers — It is incumbent on a 
boarding-house keeper to exercise due and proper care 

• ' Thome v. Luckett, 5 C. B. 38. 
^ Dills V. Stobie et al., 81 111. 202. 



30 KINDS OF TENANCY. [§-^- 

of the baggage or property of his boarder — such care 
as a prudent person would take of his own property ; and 
he is liable for the loss of his guest's goods, occasioned 
through ' the negligence of his own servants, while they 
are acting within the scope of their employment.' 

There is no duty on a keeper of ^a lodging-house to take 
care of his lodger's goods, as in the case of an inn- 
keeper. " 

It is said there is an implied condition in the letting of 
a furnished house, that it shall be reasonably fit for habi- 
tation.^ 

This is an exception to the general rule that there is 
no implied 'warranty on the letting of an house or land 
that it shall be reasonably fit for habitation or cultiva- 
tion, or anA' other purpose for which it was let.* 

"Where a tenant enters into possession of a furnished 
house or apartments, he may be compelled to pay the rent 
in an action for use and occupation, and his goods may 
be distrained by the landlord. 

There is no presumption from a general hiring of lodg- 
ings and furnished apartments, that it is a hiring for a 
year, as in the case of the hiring of unfurnished houses 
or of lands. 

If the rent is payable weekly, monthly or quarterly, 
it will be a weekly, monthly or quarterly tenancy accord- 
ingly . 

' Stniyi V. Reed, 52 How. (N. Y.) Pr. 14. 

- Holder v. Soulby, 6 Jur. (N. S ) 1031; 29 L. J., C. P. 346; 8 W, R. 
438; C. B., N. 8. 254; Wood's Landlord and Tenant, !ig 51, 58. 

'Smith V. Marrable, 11 M. & W. 5; Woofl's Landlord and Tenant, 
§ 51; Taylors Landlord and Tenant, § 381, and note. 

^ AVood's Landlord and Tenant, § 53. 



§§ 27, 28. J ' FOEFEITUEE OF LEASES. 31 

When the landlord retains general possession, lodgers 
are only responsible for willful injuries to the property, 
or such as resulted from their negligence. ' 

To create the relation of landlord and tenant, there 
must have been a transfer of the possession of land itself, 
or of some part of a building erected upon the land, such 
possession not being subject to the control or interference 
of the lessor, unless certain privileges be specially reserved 
to him, this, relation does not exist bet^Yeen the keeper of 
an hotel, inn or boarding-house and his guests, lodgers or 
boarders. These are inmates, not tenants.' 

§ 27. Landlord defined " The word ' kndlord ' does 

not mean the lord of the soil, but the person between 
whom and the tenant the relation of landlord and tenant 
exists." ' The term "landlord" extends, it seems, to 
every person whose title is connected "with and con- 
sistent with the possession of the occupier.' 

Forfeiture of Leases. 

§ 28. Natnre of forfeitures Forfeitures are not 

regarded with any special favor by the courts, and where 
a party insists on a forfeiture, he must make clear proof 
and show that he is entitled to it. It is a harsh way to 
terminate contracts, and he who insists on making a 
declaration of forfeiture must be held strictly within the 
limits of the authority which gives the right. And 
where the landlord reserved the right to declare a for- 
feiture of the lease for default in the payment of rent, 

' Taylor's Landlord and Tenant, § 381. 

- Birdsall v. Phillips, 17 Wend. R. 464, 472; see Baxter v. West, 5 
Daly, R. 460. 
3 Churchward v. Ford, 3 H. & N. R. 445, 450. 



32 FOEFEITUEE OF LEASES. [§28. 

and several installments were unpaid, and the landlord 
had evinced a disposition to favor the tenant, and the 
tenant relied on this, it was held that, under the circum- 
stances, even though in the lease, the tenant had waived 
the right to any notice, of an intention of the lessor to 
declare a forfeiture, yet the tenant should have notice 
before such declaration could properly be made. ' 

As forfeitures are odious to the law, such forfeitures 
are never enforce.d but upon strict compliance with all 
the requirements of the la\v. All leases having such 
conditions would be attended with the same conse- 
quences, and be liable to be swept awa}' if the rent is 
not paid on the day it falls due, notwithstanding it may 
owe its entire value to the expenditure of labor and 
money of the tenant. It is only reasonable that the 
landlord should, on the day his rent falls due, indicate 
his-intention to terminate the lease, and the tenant have 
the entire day within which to make payment. When 
the five days given by the statute expire after notice 
and deinand, without payment of rent in arrear, the ten- 
ancy is terminated, and the landlord may sue and recover 
possession.'' 

To create a forfeiture under the act of 1865, fori non- 
payment of rent, there must be a demand of the rent and 
ten days' notice to quit, and a failure to pay the rent 
before the expiration of the ten days ; and the action 
of forcible entry and detainer will not lie until all these 
things take place." 

' Palmer v. Ford, 70 111. p69; Wood's Landlord and Tenant, Sec. 518. 
- Chadwick v. Parker, 44 111. 336; Chapman et al. v. Kirby, 49 111. 
311; Wood's Landlord and Tenant, Sees. 518, 519. 
' Woodward v. Cone, 73 IV. 341. 



§ 29.] fokfp:ituee of leases. 33 

The possession of a tenant is that of the landlord, in 
fact and in law ; and the claiming of adverse possession 
by the tenant or those claiming under him forfeits the 
term and the landlord may enter or bring forcible 
detainer ; otherwise, if the descent is cast by death of 
the disseisor. ' 

Where the lessee of premises has sub-let a portion of 
the same and afterwards forfeits his own lease by non- 
payment of rent and is evicted, an action of forcible 
detainer will lie by the landlord against the sub-tenant 
to recover, possession of the portion of the premises held 
by him, nor would it change or affect the relations of the 
parties if the landlord had consented to the sub-letting.' 

In cases of forfeiture of a lease for non-payment of 
rent, there must be a demand at a fixed time, or the for- 
feiture will not accrue." 

§ 29. Forfeiture at common law At common law, 

in order to justify the landlord in declaring a forfeiture 
of the lease for the non-payment of rent, a demand of 
the rent was necessary on the day it became due; but 
the statute of this state has changed the rule, and a 
demand may be made any time thereafter.* 

In an action of forcible detainer for failure to pay 
rent, if the plaint does not aver that a demand for the 
rent was made, it is insufficient to support a judgment of 
forfeiture. ' 

The second section of the chapter of the revised stat- 

' Wall V. Goodenough, 16 111. 415. 
' Patchell et al. v. Johnston, 64 111. 305, 
'Chapman v. Wright, 30 111. 130. 
" Burt V. French, 70 111. 254. 
sCone V. Woodward, 65 111. 47T. 
3 



34 FOEFKITUBE OF LEASES. [ § 29. 

utes, entitled "Landlord and Tenant," gives the land- 
lord double rent in case of a willful holding over after 
the term has expired, by afflux of time, and not to a 
case of holding over, where the term is ended by act of 
the landlord in declaring a forfeiture. In the latter case, 
the tenant is liable to no more than a fair and reasonable 
rent for the use and occupation for the time he holds 
over. ' 

And the covenant being made for the benefit of the 
lessor only, it is held, that an assignment made without 
consent is not void, but merely voidable, and that such 
sub-letting or assignment contrary to the terms of the 
lease does not work a forfeiture without the lessor declar- 
ing to that effect. ° 

It is held, that the evidence fails to establish a for- 
feiture of the lease, — where the tenant continued on the 
place nnder the lease and precisely as he did previously, 
until the following January. Although a forfeiture may 
have been spoken of, we find none of the steps taken by 
the landlord that are usually employed to manifest such 
an intention. The record of the proceeding was not pro- 
duced and the evidence fails to show that there was any 
service on or appearance by the defendant." 

In giving construction to the act of I860, this court 
has said, that if the tenant pays the rent in arrears 
within the ten days after service of the notice, a forfeit- 
ure of the lease is thereby prevented.' This was in a 

' Stuart V. Hamilton, 66 111. 253. 

'Webster et al. v. Nichols at al , 104 111. 160; Eldredge v. Bell, 64 
la. 125. 

' Cheney v. Bonnell, 58 111. 268. 
* Chapman v. Kirby, 49 111, 311.- 



§ 30.] FORFEITURE OF LKASES. 35 

case where a notice had been given to terminate the 
tenancy because the rent had not been paid. 

§ 30. Under the statutes. — To create a forfeiture, so 
as to support the action of forcible entry and detainer for 
the non-pa3'ment of i:ent, under the act of 1865 four 
things must concur : there must be a default in the pay- 
ment of rent ; a demand of the same ; a ten days' notice 
to quit ; and a failure to pay the rent before the expira- 
tion of the ten days' notice. ' 

A forfeiture of a lease will not be inferred, because there 
were grounds for declaring a forfeiture, but all the requi- 
site steps must be taken. A forfeiture cannot be pro- 
duced unless there is a notice that the tenancy has ended, 
a demand for possession and a notice to quit. The law 
does not favor such forfeitures. ° 

Mere non-payment of rent does not authorize the land- 
lord to enter upon and forcibly expel the tenant, or to 
remove the tenements or any appurtenances thereto, nor 
to cut ofif steam power agreed to be supplied to the tenant 
by the landlord in the lease." 

Eent collected after re-entry inures to the benefit of 
the tenant. A provision in a lease against a forfeiture 
of the rents to be paid during the fall term, does not 
authorize the lessor to collect the subsequent rent, both 
from the lessee named in the lease and also from the 
tenant to whom the lessor may re-let the premises, but 
the rent due from the original lessee is to .be credited 
with such rent as is realized from the re-letting. The 

' Oone V. Woodward, 65 111. 477. ' 
■' Cheney v. Bonnell, 58 111. 368. 
'Chapman et al. v. Kirby, 49 111. 311. 



36 FOEFJEITTJEE OF LEASES. [ § ^1 . 

lessor is entitled to such sum as is equal to the rents 
required by the tenure of the lease to be paid during the 
full term, and no greater sum. 

If the liability of the lessee for rent accruing after 
re-entr^' by the lessor may be inferred from a j)rovision 
in the lease authorizing the lessee to re-let for the benefit 
of the lessor, there can be no doubt about the liability of 
the lessee for such subsequent rent under an express 
stipulation that the re-entry shall not work a forfeiture 
thereof. ' 

Provisions for forfeiture are not favored by the law. 
While no precise form of words is requisite .to their cre- 
ation the intention that a liability to forfeiture shall be 
incurred must be unmistakable. 

It is saicl that ' ' in all cases where an estate for years 
is granted on condition, and the lease declares that the 
estate shall cease and determine on the breach of the 
condition, without any clause of re-entry or other qualifi- 
cation, the estate will ipso facto cease as soon as the con- 
dition is broken." But whenever a lease provides that 
on breach of any condition the lessor shall or maj' re-enter 
and perhaps, generally in instances where the provision 
for forfeiture relates to breach of a duty, which, under his 
lease, the lessee owes to the lessor, the estate, on a breach, 
is held to be void as to the lessee, but as to the lessor 
voidable only, and the forfeiture is to be enforced, if the 
landlord elect to enforce it at all, by an action of eject- 
ment." ' ■ 

§ 31. Waiver of forfeiture If the landlord, kno^Y- 

' Grommes et al. t. St. Paul Trust Co. et al., 147 111. 634. 
"- Clark V. Jones, 1 Denio R. 5i6. 



§ 31.] FORFEITURE OF LEASES. 37 

ing the cause of forfeiture by his tenant, recognizes the 
sub-lessee as his tenant, or receives rent subsequently 
accruing, he thereby waives the forfeiture. ' 

The general rule is, that any act done by a landlord 
knowing of a cause of forfeiture by his tenant, affirming 
the existence of the lease and recognizing the lessee as 
his tenant, is a waiver of the forfeiture.'' 

The acceptance bv a landlord, after his right of pos- 
session was fixed, of property from the tenant in pay- 
iTient of rent that had accrued, is no waiver of his right 
to enter." 

Lessor having declared forfeited for non-payment of 
rent, a lease given to three lessees, the fact that one is 
willing to give up the lease does not render the trans- 
action a voluntary surrender. 

Delay of 23 days in declaring a lease forfeited for non- 
payment of rent does not constitute a waiver of the right 
of forfeiture.' 

An action for subsequent rent, with knowledge that a 
forfeiture has been incurred by the breach of some cov- 
enant or condition , operates as a waiver of the forfeiture. " 

The acceptance of an obligation of inferior or of an 
equal degree does not extinguish a prior obligation, 
unless such is the express agreement of the parties, and 
rent issuing out of the realty is of a higher obligation 
than any simple contract. The execution of a prora- 

' Webster et al. v. Nichols et al. , 104 111. 160. 
-' Williams v. Vanderbilt, 145 111. 238, 
^Frazier et al. v. Caruthers et al., 44 111. App. 61. 
Williams v. Vanderbilt, 34 N. E. Rep. 476. 
' Wood's Landlord and Tenant, Soo. 518. 



38 ATTOENMENT. [ § 32. 

issory note for rent due does not operate as a waiver of 
the right to enforce payment by distress.' 

The common law. rule, making it necessary to demand 
the rent on the. day it falls due in order to declare a 
forfeiture, is abrogated in this State. The landlord may 
forfeit the lease for non-payment of rent on any day 
after the rent falls due." 

The tender of a certificate of deposit of fifty dollars 
in payment of forty-seven dollars and seventy cents of 
rent due, if not objected to at the time on some proper 
ground, will be sufiicient to prevent the lessor from 
declaring a forfeiture of the term for the non-payment of 
rent. 

Attornment. 

§ 32. Definition. — Any act of the tenant which recog- 
nizes a change of the person to whom he pays the rent is 
an attornment." 

Payment of rent is a sufficient attornment." 

Where a landlord had leased premises and before the 
expiration of the term sold to a third party, and the 
tenant had paid one or more installments of rent to the 
grantee, it was held, that such a payment amounted to 
an attornment and authorized the grantee to sue for the 
recovery of the rent." 

A purchaser at a foreclosure sale cannot distrain for 

1 Atkins V. Byrnes, 71 111. 326. 
■Williams v. Vanderbilt, 145 111. 238. 
3 Oswald V. MoUet, 29 111. App. 449. 
-» Walker v. McDonald, 28 111. App. 643. 
■•> Fisher v. Deering, 60 111. 114. 



§ 33. J ATTORNMENT. , 39 

rent against a tenant holding under grantors of the equity 
of redemption unless the tenant attorns to him.' 

If a tenant should attorn to another and is turned out 
of possession by forcible detaliner by the person to whom 
he attorns, the first lessor can maintain the same action 
against the second lessee. The latter, in such case, can 
occupy no better position than the tenant under the first 
lease. "" , i 

§ 33. Implied attornment.^Where a tenant, after 
notice of a convej'ance of the demised premises by his 
landlord, promises to pay rent to the grantee, this is 
sufficient evidence of an attornment." 

A tenant has a right to attorn to one who has acquired 
his landlord's title, but not to one who has acquired a 
title hostile to the landlord, although it may be a better 
title!" 

Attornment is an acknowledgment by the tenant of a 
new landlord after the transfer of the premises and his 
agreement to become the tenant of the new landlord." 

A tenant who has received possession from his landlord 
has no right to attorn to a third person without first sur- 
rendering possession to his landlord or obtaining his con- 
sent to such attornment. ° 

' Reed t. Bartlett, 9 111. 367. 

- Cox V. Cunningham, 77 111. 545. 

3 Hayes, V. Lawyer, 83 111. 183. 

^Bailey v. Moore et al.,'3l 111. 165. 

'Lindley v. Dakin, 13 Ind. 388; Austin v. Ahearii, 61 N. Y. 6. 

<> Leech v. Koenig, 55 Mo. 451.. 



40 LEASES MAY BE AS8IG-NED. [ § 34. 



CHAPTEK II. 

ASSIGNMENT OF THE LEASE. 

Section 34. Leases may be assigned. 

35 Accruing rent. 

36. When assignment releases from rent. 

37; Lease assigned contrary to its terms. 

38. Voidable— not void if terms disregarded. 

39. Sub-tenants and their rights. 

40. Termination of sub-lease. 

41. Leases by corporations, 
43. Appurtenances. 

43. Partnership leases. 

§ 34. Leases may be assigned All leases except a 

lease at will may be assigned, if there is no restriction 
therein." And even if, by the terms of the lease, an 
assignment is forbidden, 3'et such an assignment will not 
render the lease absolutely void, but only voidable. 

A landlord ma^^ assign the rent to become due upon a 
lease without assigning the reversion. 

The assignee of rent to become due may maintain an 
action therefor in his own name." 

The lessor cannot assign a lease by indorsement, so as 
to give the assignee such a legal title as can be enfoi'ced 
in his name, although the assignee may, in that way, 
acquire an equitable title to the rents. 

An assignee of a lease who has been recogni/.ed as such 

•Eldrodge v. Bell, 64 Iowa, 135; Robinson v. Berry, 31 Ga. 183; 
Jackson v. Gioar, 7 Cow. (N. Y.) 385; Cooney v. Hayes, 40 "Vt. 478. 
' Wineman et al. v. Hughson, 44 III. .A_pp. 32. 



§ 34:. j LEASES MAY BE ASSIGNED. , 41 

may sue in his own name for rent, although he has no 
interest in the reversion.' 

Equity treats the assignee of a contract, not assignable 
at law, as the party in interest, and will afford him relief 
in a proceeding instituted in his own name. 

A lessor can assign his interest in a lease by an indorse- 
ment on it, so as to pass the equitable right to his assignee 
to receive the rent when it becomes due.'' 

The power to assign a lease belongs to every lessee, 
unless he has been restrained by the terms of his lease. 
It is common to insert as part of the lease, that the tenant 
shall not assign or underlet the premises without the 
written permission of th^ landlord,- acc(Jmpanied by a 
clause of re-entry in case of breach. And while it seems 
reasonable that a man shall exercise this restraint, for 
the purpose of selecting such tenants as he is satisfied will 
take care of his property and pay rent punctually, yet 
the courts of law do not favor this restraint." 

Where an assignment of a lease for years was by parol 
and the assignment void, yet, it having become executed 
and the assignee accepted by the landlord as a tenant, 
the Statute of Frauds has no application.* 

An agreement in a lease that the tenant will " remove 
all rubbish and spalls " at the expiration of his term, runs 
with the land and is binding upon the assignee of such 
tenant,'^ 

Although the owner of real estate may have leased the 

'Watson r. Hankins, 13 la. 547. 

-Dixon V. Buell, 21 111. 303; Chapman v. McGrew, 20 111. 101. 

^Church V. Brown, 15 Ves. 265. 

J Bliss V. Gardner et al., 2 111. App. 432. 

* Coppinger et al. v. Armstrong, 5 111. App. 0^7. 



42 ACOEUINC; KENT. [§36. 

same, he may sell or convey one part of his reversion to 
one person and the residue to another, and the grantee 
of the reversion will be liable on his grantor's covenant 
to renew the lease, for the. reason that such covenants 
run with the lease. Such a covenant is divisible. ' 

The lessor may assign the lease and vest the power in 
the assignee to collect rent without a transfer of the 
reversion." 

Where a lessor conveys property pendente lite, his 
recovery inures to the benefit of the vendee." 

§ 35. Accruing rent. — An unqualified conveyance of 
demised premises passes the rent thereafter to accrue." 

Where land 4s sold that is held by another by virtue 
of a lease, the grantee in the deed is entitled to recover 
the rents accruing after the execution and delivery of the 
deed, unless the deed or agreement otherwise provide." 

Accruing rent, when not reserved, passes by the deed 
to the grantee on a sale of the premises; but until 
attornment by the tenant, the grantee cannot maintain 
a suit against the tenant for rent." 

Although the tenant cannot dispute the landlord's 
title, yet in a suit for rent he may show that he has 
acquired title of his landlord by conveyance to him ; and 
it makes no difference whether the conveyance is directly 
from the landlord or from a trustee, duly authorized to 
sell and convey the title b}' a former owner, provided 

' Leiter v. Pike et al., 137 111. 387. 
- Dougherty v. Matthews, 35 Mo. 530. 
8 Bell V. Brulm, 30 111. App. 300 

* Disselhorst v. Cadogan et al., 31 111. App. 179. 
' Neill et al. v. Chessen, 15 111. App. 366. 

* Raymond et al. v. Kerker, 3 111. App. 496. 



§ 36.J WHEN ASSIGNMENT BELEASES FROM EENT. 43 

the same is a lien prior to the rights of the landlord. 
Where there is an express covenant to pay rent for a 
term of years, the mere acceptance of rent by the lessor 
from the assignee of the lessee does not discharge the 
lessee. His contract continues in force, notwithstanding 
he may have parted with his interest in the estate, unless 
the lessor enters into such stipulations with the assignee 
as to accept him as sole tenant and absolve the original 
lessee. ' 

.An assignment of the lease by the lessee does not dis- 
charge either the lessee or his surety from the covenants ; 
it does* not have this effect even when the lessor recog- 
nizes the assignment. by accepting rent from the assignee." 

S 36. When assignment releases from rent Where 

a tenant has assigned his interest in the lease and the 
landlord has recognized the assignee as his tenant and 
accepted rent from him, the lessee is no longer liable to 
the lessor in the debt for the rent." 

If there be not a substitution of the assignee in place 
of the original lessee and a clear intent to make a new 
contract with the former and to discharge the latter from 
further liability under the lease, both will be held liable 
to the lessor. 

Where it is mutually agreed between parties that a 
lease shall be surrendered, and a new one ' is thereupon 
made with another party and the landlord accepts the 
new party as his tenant, this will estop the landlord 
thereafter from denying the surrender of the first lease. 

' Carson et al. v. Crigler, 9 111. App. 83. 

» Grommes et al. v. St. Paul Trust Co. et al., 147 111. 634. 

3 Bliss V. Gardner et al., 2 111. App. 422. 



•i-i WHEN ASSIGNMENT EELEA.sKS FROM KENT. [§ 36. 

The assignment of a lease by a tenant, or his sub-letting 
the premises, with the written assent of the lessor, when 
this is allowed by the terms of the lease, will not dis- 
charge the tenant from his liability to pay the rent 
agreed to be paid, nor his guarantor. And where the 
demised premises are used for a saloon, the sale of the 
saloon by the tenant and the taking of possession by the 
purchaser and the acceptance of the rent from the latter 
by the landlord will not operate as a discharge of the 
guarantor of the first tenant from the payment of the 
rent thereafter accruing.' 

In a suit on a lease to recover rent, the tenant may 
show that the landlord has assigned the lease by a sale 
of the demised premises, or that he has been evicted by 
paramount title, which form exceptions to the general 
rule." 

Where a lessee of an unexpired terra made a verbal 
assignment thereof and put his assignee in possession, 
who paid the rent to the original lessor for about a year, 
when he ceased to occupy the premises and refused to 
pay I'ent thereafter, and the lessor brought suit against 
him for the subsequently accruing rent, it was held, that 
the statute of frauds was a bar to the action." 

The landlord is entitled to rent that had accrued before 
tlie execution of the deed of conveyance, but rent not 
then matured passes with title and vests in the purchaser.* 

An administrator or executor can not distrain or sue 

' Groiiimes et al. v. St. Paul Trust Co. et al., U7 111. 634. 
' Doty V. Burdick, 83 111. 473. 

^ Chicago Attachment Co. v Davis Sewing Machine Co., 142 111. 
171. 
■■ Cai-son et al. v. Crigler, 9 111. App. S3. 



§ 37.] LEASK ASSIGNED, ETC. 45 

for rent which accrues after the death of the owner of 
the land ; the rent in such case goes to the heir. ' 

The assignee of a leasehold estate is liable for the rent 
according to the terms of the lease, and the fact of his 
liability after the assignment does not discharge the lessee 
from his covenant to pay rent. In case the rent is not 
paid by the assignee as it becomes due-, an action lies 
against the lessee therefor, and it makes no difference 
that the lessor may have received rent from the assignee 
and accepted him as a tenant of the premises.'' 

§ 37. Lease assigned contrary to its terms A 

clause in a lease that the same shall not be assigned 
without the written assent of the lessor, is for the 
benefit of the lessor onl^'. It does not render the assign- 
ment, when otherwise valid, absolutely void, but void- 
able only at the Option of the lessor or his representa- 
tives.' 

Where a lease states that it shall be binding upon the 
lessor, his heirs, executors and administrators, but says 
nothing about assigns, the lessee cannot maintain a suit 
against a purchaser of the house and premises from the 
lessor upon a clause in the lease binding the lessor to peuy 
for certain fixtures." 

The lessor cannot assign a lease by indorsement, so as 
to give the assignee such legal interest as can beenfoi'ced 
in his name, although the assignee may in that way 
acquire an equitable title to the rents. ' 

I Sherman et al. v. Dutch, 16 111. 383. 

- Gromraes et al. v. St Paul Trust Co. et al., 147 111. 684,. 
_» Webster et al: v. Nichols et al., 104 111. 160. 
"■• Hansen v. Meyer et al., 81 111. 321. 

5 Chapman v. McGrew. 20 111. 101. 



46 VOIDABLE NOT VOID WHEN. [§3''^- 

"Where a reversion in a lease has been conveyed and 
the tenant has attorned to the assignee, all the covenants 
pass to the assignee, and if the tenant thereafter com- 
mits a breach of such covenants, the assignee alone can 
recover damages therefor.' 

§ 38. Toidable — Not void if terms disregarded — If 

the landlord has the right to declare the lease forfeited 
on account of assignment and he accepts the rent accru- 
ing after such assignment, this will be a waiver of his 
right to declare the lease forfeited ; and when a lessor 
once consents to an assignment, the restriction is then 
removed forever." 

If the provisions of a lease containing such stipulations 
are violated by the tenant, the landlord may waive his 
right to declare a forfeiture of the lease. In such case, 
the assignment would be valid. And in case the lessee 
covenants not to assign, transfer or set over the lease or 
premises, it does not prevent him from underletting the 
same. " 

Nor will a covenant on part of the tenant, not to let 
or underlet the whole or any part of the demised premises, 
preclude him from making an assignment of his whole 
interest. * 

However, authorities are not agreed on this point. In 
Den V. Post, 1 Dutch. 285, a covenant against under- 
letting was declared to be a bar to assignment. 

' Soheidt v. Belz et al, 4 111. App. 431. 

* Murrey v. Harway, 56 N. Y. 347; Chipman v. Emerich, 5 Cal. 49. 
2 Jackson v. Silvernail, 15 Johns. 378; Jackson v. Harrison, 17 
Johns. 66; Copland v. Parker, 4 Mich. 660. 
•• Lynde v. Hough, 27 Barb. 415. 



§39. J SUB-TENANTS AND SUB- LETTING. 47 

Sub-tenants and Sub-letting. 

§ 39. Sub-tenants and their rights. — Provisions in a 
lease, that upon the re-entry for breach of covenants the 
landlord may relet the premises for the account of the 
lessee, holding him for any deficiency, have been uni- 
formly sustained.' 

A covenant or clause in a lease, that neither the tenant 
nor his heirs, etc. , shall underlet any part of the demised 
premises or assign the lease, is for the benefit of the 
lessor alone. If he does not choose to set it up, no one 
else can." 

Where a lease contains a clause prohibiting sub-letting, 
in case it takes place, receipt of rent by the landlord 
from the sub-tenant does not release the tenant- from his 
promise to pay.^ 

A tenant cannot sub- let longer than his present term, 
nor can he charge his sub-tenants with an increased rent 
by notice to them before renewal of his lease, in case they 
hold over after their term expires.'' 

An agreement not to let, set or demise the premises, 
or any part thereof, for the whole or any part of the 
term, was held to restrain an assignment. " 

If a lease provides that ' ' if the tenant shall assign the 
lease, it shall become void," in such case the lease is 
voidable only and not void." 

' Grommes et al. v. St. Paul Trust Co., 47 111. App. 568. 

"■ Sexton V. Chicago Storage Co. et al., 129 111, 318. 

'Grommes et al. v. St. Paul Trust Co , 47 111. App. 568. 

■'Sutherland v. Goodnow, etal., 108 111. 538. 

' Greenaway v. Adams, 12 Vesey, 395. 

« Eldredge v. Bell, 64 la. 135; Jackson v. Groat, 7 Cow. (N. Y.) 285. 



48 SUB-TENAN'1> AND SUli-LEmNG. [ § 40. 

Where a tenant, without license from the landlord, 
takes a third person into co-pai-tnership with him and 
lets such person into joint possession of the premises, it 
is not a breach of the condition of the lease against sub- 
letting." 

The service by the landlord upon his tenant of a five 
days' notice under the statute, he having knowledge at 
the time of a sub-letting which, under the lease, was 
ground for forfeiture, amounts to a waiver of the for- 
feiture incurred by such sub-letting." 

§ 40. Termination of sub-lease A termination of 

the original lease does not always terminate the sub- 
lease. Where a tenant holds premises under a' lease and 
sub-lets a portion of the premises to a third person, there 
being no restriction in the lease against sub-letting, and 
subsequently, without the knowledge or assent of the 
sub-tenant, surrenders his term to the then owners of 
the premises, such surrender terminates the original lease 
and the term created thereby as between the parties to 
the original lease; but the interest and term of the sub- 
tenant continue the same as if no surrender had been 
made. The original landlord becomes the immediate 
landlord of the sub-tenant with only such rights as the 
original lessee would have had to the possession of the 
premises before the expiration of the term.' 

If a landlord has alienated the reversion during the 
lease, then his alienee is entitled to possession at its 

' Boyd et al. v. Fraternity Hall Ass'n, 16 111. App. 574. 
^ Frazier et al. v. Caruthers et al., 44 111. App, 61. 
'■^ Eten V. Luyster, 60 N. Y. 253. 



§41;].. SUU-TEN'ANTS AND* SUB-LETTING. ( 49 

'termination ; he should make the demand and bring the 
action.' 

If the party holding over is a mere wrong-doer, the 
right of the lessee after the date fixed for the commence- 
ment of the tenancy is effectual to dispossess him : the 
landlord is not entitled to possession and can maintain no 
action to recover the premises. The right of immediate 
possession is in the lessee alone and he must bring the 
action. Therefore, when the tenant is prevented from 
obtaining the enjoyment of the premises by a former 
tenant whose tenancy has expired, his remedy is against 
the latter and not against the lessor. "^ 

§ 41. Leases hj corporations The doctrine that a 

corporation cannot make a contract except under a cor- 
porate seal is not in force in this state ; a corporation 
can make a lease not under the seal.^ 

It was formerlj^ held, that a lease by a corporation 
without the corporate seal is void." 

A guardian has no power over the real estate of his 
wards except to lease on such terms as shall be approved 
by the County or Probate' Court ; without such approval a 
lease made by him is, as to the minors, wholly inopera- 
tive.' 

. Where land held by a tenant for years is taken by 
condemnation proceedings, the tenant remains liable for 

' Dudley et al. v. Lee, 39 111. 339. 

^ Taylor L. & T. Sec. 313; Hatfield v. Fullerton, 34111. 378; Gardner 
V. Ketellar, 3 Hill, 330; Cozens v. Stevenson, 5 S. & R. 434; Gozzolo 
V. Chambers, 73 111. 75. 

^"Goppinger et al. v. Armstrong, 8 111. App. 210. 

^Kinzie v. Chicago, 3Scammon (111.), 187. 

" Field et al. v. Herrick et al.. 5 111. App. 54. 
4 



50 SUB-TENANTS AND SUB-LETTING. [ § 42. 

the entire rent, according to the terms of the lease. 
The condemnation of the land does not extinguish the 
lease as between landlord and tenant.' 

Where the reversion of leased real estate is severed by 
the condemnation of a part thereof for a street, the tenant 
will be entitled to an abatement of the rent, according to 
the value of the several parts of the land.'' 

A lease merges in ' the fee, when they unite in the 
same person." 

The rent of a house occupied as a residence is a family 
expense within the meaning of sec. 15, chap. 68, Eevised 
Statutes, and husband and wife are jointly and sever- 
ally liable for such rent and may be sued jointly or 
separately." 

The possession of a riparian proprietor is' to the center 
thread of a given stream to as full an extent as if 
included in the terms of the deed under which he claims, 
and he may maintain replevin for sand or gravel taken 
therefrom by a trespasser who invades that possession. 

A person in possession of lands abutting upon a stream 
may maintain forcible detainer against one who invades 
his possession of lands acquired by accretion." 

§ 42. Appurtenances. — Appurtenances in a lease 
include only such things as belong to the realty and do 
not include personal property." 

' City of Chicago v. Garrity et al., 7 111. App. 474. 

« Leiter v. Pike et al., 137 111. 387. 

3 Carroll v. Ballance, 26 111. 9. 

1 Illingworth v. Burley; 33 111. App. 894; Harrison v. Hill, 37 111. 
App. 33. 

= Griffin V. Kirk, 47 111. App. 258. 

' Ottumwa Woolen Mills v. Hawley, 44 la. 57; Scheldt v. Belz, 4 
111. App. 431. 



§ 43. J SUB-TENANTS AND SUB-LETTING. 51 

An appurtenance means something belonging to another 
thing and which passes incidentallj^ to the principal thing, 
but does not include property totally disconnected with 
the premises.' 

The Statute of Illinois requires all the jury to sign the 
verdict in forcible entry and detainer cases." 

Where the amount of rent is agreed to be fixed by 
appraisement and the appraisers refuse to act, the law 
will not permit a failure of justice and the court will 
hear evidence and make the appraisement.'' 

Both by the common law and the statute of this State, 
where a tenant for life gives a lease for a term of years 
on a yearly rent and dies in the course of a year, before 
the day of the payment of the rent, the rent cannot be 
apportioned and the tenant may quit the premises on 
such death without liability. to pay any rent to anyone 
after the last day appointed for payment." 

§ 43. Partnership leases. — The covenants of a lease 
by a partnership firm are joint and several and each 
individual partner is personally liable thereon. 

"Every partnership debt, being joint and several, it 
follows necessarily that resort may be had, in the first 
instance, for the debt to the surviving partners or to the 
assets of the deceased partner. ' ' ° 

' Scheldt V. Belz, 4 111. App. 43. 
- Bloom Y. Goodner, 1 111. 63. 
^ Tobey Furniture Co. v. Rowe, 18 111. App. 393.' 
* Hoagland et al. v. Crum, 113 til 36.5. 

°Ladd V. Griswold, 4 Gilman, 25; Mason v. Tiffany, 4.5 111. 392; 
Silverman v. Chase, Exr., 90 111. 42; Dunn v. Jaffray, 36 Kansas, 408. 



52 THE ILLINOIS STATUTE. [ §§ 44, 45. 



CHAPTER III. 
FORCIBLE ENTRY AND DETAINER. 

Section 44. The Illinois Statute. 

45. The purpose of the action and when it will lie. 

46. Forcible entry forbidden. 

47. Definition. 

48. Nature of the action. 

49. The remedy. 

50. Two wrongs in one name. 

§ 44. {The Illinois Statute The Statute of the State 

of Illinois, on the subject of Forcible Entry and Detainer. 
is as follows, viz. : 

* 

Section 1. Be it enacted .by the People of the State of 
Illinois, represented in the General Assembly, 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 peace- 
able manner. 

§ 45. The purpose of the action^ and when it will 
lie. 

Sec. 2. The person entitled to the possession of lands 
or tenements may be restored thereto in the manner here- 
after provided : 

First. When a forcible entry is made thereon. 

Second. When a peaceable entry is made apd the pos- 
session unlawfully withheld. 

Third. When entry is made into vacant or unoccupied 
lands or tenements without right or title. 



§ 45. J DEMAND SERVICE EETUEN. 63 

Fourth. When any lessee of the lands or tenements, 
or any person holding under hliu, holds possession with- 
out right, after the determination of the lease or tenancy 
by its own limitation, condition or terms, or by notice to 
quit, or otherwise. 

Fifth. AVhen a vendee, having obtained possession 
under a written or verbal agreement to purchase lands or 
tenements and having failed to comply with his agree- 
ment, withholds possession thereof after demand in writ- 
ing by the person entitled to such possession. 

Sixth. When lands or tenements have been conveyed 
by any grantor in possession, or sold under the judgment 
or decree of any court in this State, or by virtue of any 
sale in any mortgage or deed of trust contained, and the 
grantor in possession, or party to such judgment or decree, 
or to such mortgage or deed of trust, after the expiration 
of the time of redemption, when redemption is allowed 
by law, refuses or neglects to surrender possession thereof 
after demand in writing by the person entitled thereto, 
or his agent. 

Demand — Sermoe — Return. 

Sec. 3. The demand required by the preceding section 
may be made by delivering a copy thereof to the tenant, 
or by leaving such a copy with some person above the 
age of twelve j^ears, residing on, or being in charge of, 
the premises; or in 'case no one is in actual possession of 
the premises, then by posting the same on the premises. 
When any such demand is made by an officer authorized 
to serve process, his return shall \>q pvliaa fade evidence 
of the facts therein stated ; and if such demand is made 



-54 OK0WIN& CROPS. [ § 45. 

hy anj' person, not an officer, the return may be sworn 
to by the person serving the same and shall then be 
jprima facie evidence of the facts therein stated. Which 
demand for possession ma^' be in the following form : 

To : 

I hereby demand immediate possession of the follow- 
ing described premises (describing the samej, which 
demand shall be signed by the person claiming such pos- 
session, his agent or attorney. 

Growing Crops. 

Sec. 4. In case of forfeiture under contract of pur- 
chase, the purchaser shall be entitled to cultivate and 
gather the crops, if any, planted by him and grown or 
growing on the premises at the time of the commence- 
ment of the suit, and shall have the right to enter for 
the purpose of removing such crops, first paying or 
tendering to the party entitled to the possession a reason- 
able compensation for such use. of the land before remov- 
ing the crops. 

Complaint — Sum inons. 

Sec. 5. On complaint in writing by the part}' or 
parties entitled to the possession of such premises being 
filed in any court of record, or with any justice of the 
peace in the county where such premises are situated, 
stating that such party is entitled to the possession of 
such premises (describing the same with reasonable cer- 
tainty), and that the defendant (naming him) unla^vfully 
withholds the possession thereof from him or them, the 
clerk of such court or such justice of the peace shall 



§45.] SUMMONS FROM COURT OF EECOEU. 55 

issue a summons directed to the sheriff or any constable 
of his county to execute ; which summons, when issued 
by a justice of the peace, may be substantially in the 
following form : 

STATE OF ILLINOIS, ] 
County of Cook, ) 

The People of the State of Illinois, to the Sheriff or 
any Constable in said County — Greeting:' 

You are hereby commanded to summon 

to appear before , at , on the 

day of , A. D. , , at o'clock 

M. , to answer the complaint of , \vherefore he 

unlawfully withholds from him the possession of certain 
premises in said county (describing the premises), and 
hereof make due return, as the law directs. 

Given under my hand this day of , A". 

D., 18. _. 

Summons ^from Court 'of Record . 

Sec. 0. When a summons is issued out of a court of 
record, it may be in like form as other summons issued 
out of such court. 

8ii,m,7nons from Justice of Peace. 

Sec. T. When the summons is issued b_y a justice of 
the peace, it shall specify a certain place, day and hour 
for the I trial, not less than five nor more than fifteen 
days from the date of the summons. 



56 SUMMONS FEOM COUET. [ § ^5. 

Summons from Court. 

Sec. 8. When the summons is issued out of a court of 
record, the summons shall be made returnable on the 
first day of the next succeeding term of said court, and 
if not served ten days before the first day of the next 
term, the cause shall be continued to the next term> of 
court. 

Sei'rire of S^mimons — Return — Publication. 

Sec. 9. Service of summons shall be made by deliver- 
ing a copy thereof to the defendant, or by leaving such 
copy at his usual place of abode, with soine person of the 
famil}', of the age of tAvelve years or upwards, and inform 
ing such person of the contents thereof. The manner of 
the service, and the date thereof, shall be indorsed on 
the back of said summons by the officer serving the same. 
"When service cannot b'e had as provided in this section, 
and it shall appear by affidavit or the return of the 
officer that the defendant is not a resident of this State, 
or has departed from this State, or on due inquiry can- 
not be found, or is concealed within this State so that 
process cannot be served upon him, then, if the suit is in 
a court of record, service may be had by notice, as in 
case of attachment in court of record, or, if the suit is 
before a justice of the peace, by notice, as in case of 
attachment before justices of the peace. 

Jury IVial Before Justice. 

Sec. 10. In trials under this Act before Justices of the 



§ 45. J TEIAL IN COURT OF EECOED. 57 

peace, either party may have the case tried by a jury, 
if he shall so determine before the trial is entered upon, 
and will first advance the fees of the jurors. The' num- 
ber of the jurors shall be six, or any greater number not 
exceeding twelve, as either party may desire. 

Trial in Court of Record — Pleading. 

Sec. 11. Trials under this Act in courts of record shall 
be the same' as in other cases at law in such courts ; pro- 
vided no special pleading shall be required ; but the 
defendant may, under the plea of "not guilty," give 
in evidence any matter in defense of the action. 

Defatdt — Trial Ex Parte 

Siic. 12. If the defendant does not appear (having 
been duly suminoned as herein provided), the trial may 
proceed ex parte, and may be tried by the justice of the 
peace or judge of the court, without the intervention of 
a jury. 

Plaintiff Entitled to Whole Premises — Jvdgiiient — Execn- 
tion — (Josts. 

Sec. 13. If it shall appear on the trial that the plaint- 
iff is entitled to the possession of the whole of the prem- 
ises claimed, he shall have judgment and execution for 
the possession thereof and for his costs. 

Plaintiff E^ititled to Part — Judgment — Execution — 

Costs-. 

Sec. 14. If it shall appear that the plaintiff is entitled 
to the possession of only a part of the premises claimed, 



58 



SEVERAL OCCUPANTS. [§^5. 



the judgment and execution shall be for that part only 
and for costs, and for the residue the defendant shall be 
found not ffuilty. 



to"- 



Several Occupants. 

Sec. 15. Whenever there shall have been one lease for 
the whole of certain premises, and the actual possession 
thereof, at the commencement of the suit, shall be divided 
in severalty among persons with, or other than, the lessee, 
in one or more portions or parcels, separately or sev- 
erally held or occupied, all or so many of such persons, 
with the lessee, as the plaintiff may elect, may be joined 
as defendants in one suit, and the recovery against them, 
with costs, shall be several, according as their actual 
holdings shall respectively be f®und to be. 

Nijn-su'd — Defendant Tlecovevfi Costs. 

8ec. 16. If the plaintiff is non-suited, or fails to prove 
his right to possession, the defendant shall have judgment 
and execution for costs. 

Dismissal as to Part — Judgment as to Part. 

Sec. 17. The plaintiff may at any time dismiss his 
suit as to any one or more of the defendants, and the jury 
or court may find auj' one or more of the defendants 
guilty and the others not guilty, and the court shall 
thereupon render judgment according to such finding. 

Appeal — ^Vrlt of liestitution — Bond. 

Sec. 18. If any party shall feel aggrieved by the ver- 



§ 45. J defendant's appeal bond. 59 

diet of the jury or decision of the court, upon any trial 
had under this Act, such party may have an appeal, to 
be taken to the same courts, in the same manner, and 
tried in the same way as appeals are taken and tried in 
other cases. Provided, the appeal is prayed and bond is 
filed within five (5) daj's from the rendition of the judg- 
ment, and no writ of restitution shall be issued in any 
case until the expiration of five days. 

Defendant^ s Appeal Bond — Nero Bonds. 

Sec. 19. If the defendant appeals, the condition of the 
bond shall "be, that he will prosecute such appeal with 
effect and pay all rent then due or that may become due 
before the final determination of the suit, and also all 
damages and loss which the plaintiff may sustain by rea- 
son of the withholding of the premises in conti'oversy 
and by reason of any injur}^ done thereto during such 
withholding, until the restitution of the possession 
thereof to the plaintiff, together with all costs that may 
accrue in case the judgment from which the appeal is 
taken , is affirmed or appeal dismissed ; which said bpud 
shall be in sufficient amount to secure such rent, damages 
and costs, to be ascertained and fixed by the court. And 
the court in which the appeal may be pending may require 
a new bond in a larger amount, if necessarj?^, to secure 
the rights of the parties ; and in case of continuance, may 
require another bond to be given to further secure the 
same. 

Plaintiffs Apxjeal Bond. 
Sec. 20. If the plaintiff appeals, the condition of the 



60 REPEAL. [ §§ 46, 47 

bond shall be, as in other cases of appeal, when taken 
by the plaintiff, except as otherwise provided by law. 

Bepeal. 

Sec. 1\. Chapter 43 of the Revised Statutes of 1845, 
entitled "Forcible Entry and Detainer,"' and an Act 
entitled "An Act in regard to forcible entry a,nd 
detainer," approved April 10, 1S72, and all other Acts 
and parts of Acts inconsistent with the provisions of 
this Act, are hereby repealed, except as herein re-enacted : 
Provided, that this section shall not be so construed as 
to affect any rights existing or actions pending at the 
time this Act shall take effect. 

§ 46. Forcible entry forbidden — Section 1. Be it 
enacted b}' the people of the State of Illinois, represented 
in the General Assembly, 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. 

§ 4?. Definition. — Originally, by the common law, it 
was allowable for every person disseised or turned out of 
possession, unless the right had been forfeited by neglect 
or other circumstance, to forcibly take possession of the 
lands from which he had been so wrongfully ousted. But 
this course was found very prejudicial to the public 
peace, and it was found neoessai-y to enact sta'tutes to 
restrain all persons from the use of such violent methods 
of doing themselves justice — and with much greater 
reason where the party seeking redress may have no jus- 
tice in his claim — and it became the law as early as the 
vear 13S0 (5 Eich. II. St. 1, Chap. S) that all forcible 



§ 47.] DEFINITION. 61 

entries were punished by imprisonment at the king's 
will. 

The injury to be redressed is the ouster or dispossession 
of a freehold or chattels real by disseisin. " Disseisin is 
a wrongful putting out of him that is seised of a free- 
hold." Whatever may be the nature of the ouster or 
dispossession or detainer, the party entitled to possession 
has no right to use force to dispossess the oqcupant. 
The Supreme Court has held in Doty v. Burdich, 83 111. 
Reps. 477, as follows: Under our law, whatever it may 
be in other jurisdictions, the landlord has no right to 
take the law into hi-s own hands and employ foi'ce atnd 
use violence to regain possession, although such posses- 
sion may be wrongful. It would lead to violence, if not 
to bloodshed, and hence ^youkl be contrary to sound 
policy, and is forbidden." 

A party in peaceable possession of land can not be 
forcibly expelled. The motives of a party who expels 
another ace immaterial ; the owner of land is liable in 
forcible entry and detainer, if he makes a forcible entry 
■on the actual possession of the plaintiff.'' 

So that the only lawful way of obtaining possession of 
property wrongfully withheld from the owner, is by the 
action of forcible entry and detainer, as it is called, or 
by the action of ejectment. 

Ejectment is the action Avhen the title is brought into 
question ; but when the possession and right of posses- 

' Reeder et al. v. Pvirdy et ux. , 41 111. 384; Page et al. v. D.e Puy, 
40 111. 506; Farwell et al. v. Warren, 51 111. 467; Baker v. Hays, 38 
111. 387. 

-Huftalin V. Misner, 70 111. 305; Westcott v. Arbuckle et al., 13 
Bradvv. 579; Doty v. Burdiok, 83 111. 473. 



62 XATDEE OF THE ACTION. [ § i'"^- 

sion are the only questions to be .tried, the action of 
forcible entry and detainer is the remedy most appropri- 
ate and expeditious. 

* While the action of forcible entry and detainer, as now 
used, is not a common law action, yet it is an action at 
law relating to real property. 

§ is. Mature of the action. — Forcible entiy and 
detainer is essentially an action given to protect actual 
occupation of real estate against unlawful and forcible 
invasion, to remove occasion for acts of violence in 
defending such possession and to punish a breach of the 
peace committed in the entry upon or the detainer of 
real property.' 

Forcible entry and the unlawful holding of possession 
of lands and tenements has been regarded as an offense of 
such serious nature, that in many states it has been indict- 
able and in all of the states the laws respecting it are 
very stringent, usually providing for the trial of the right 
of possession with the least delay consistent with justice. 
And while this is true, the Eoman Civil Law and the 
laws of many of the states, in their anxiety to preserve 
the peace, forbid that even the owner of property should 
take possession of the same by violence, illustrating that 
the liberty of the use and enjoymeut of the property of 
the American citizen is a liberty regulated iy law. 

The main object of this action is to preserve th.e public 
peace and prevent parties from asserting their rights, real 
or supposed, by force and violence. The action will lie 
irrespective of the question as to whether the defendant 
had the legal right to possession or a right of entry, the 

• Dotson T. The State, 6 Coldw. (Tenn.) 5«. 



§ 49.] THE EEMEDY. 63 

gist of the action being the entry and detainer by force 
and violence and, the ousting from a peaceable possession, 
contrary to law.' 

In the State of Illinois, the action of forcible entry 
and detainer has been changed to a civil proceeding. ° 

The action of forcible detainer, while it is not a com- 
mon law action, is an action at law relating to real 
property.' 

In the States general) j^, the criminal remedy has fallen 
into disusfe and the civil one alone is in vogue.* 

In this State the Supreme Court said the action 
of forcible entry and detainer is purely a civil remedj', 
the sole object of which is to regain a possession 
which has been invaded, and the only judgment that 
can be rendered is, that the plaintiff have restitution 
of the premises of which he has been unjustly deprived." 

§ 49. The remedy But generally the remedy for this 

offense is twofold ; b}^ indictment at common law and by 
proceedings under the sevei'al statutes relating to forcible 
entry and detainer. The common law remedy is purely 
criminal in its nature, but the action under the statute is 
a civil remedy. Thus we find it said, that the common 
law affords no civil remedy against a person who, having 
a right, enters forcibly, but the injured party must apply 
to the statutory action of forcible entry and detainer." 

The civil and criminal remedy cannot be pursued' in 

' Reeder et al v. Purdy et al., 41 111. 379. 
- Thompson v. Sornberger, 59 111. 326. 

'St. Louis National Stock- Yards v. Wiggins Ferry Co., 102 111. 514. 
' 3d Whart. Cr. L , sec. 1083. 
= Robinson v. Crummer, 5 Gilman (111.), 318. 

' Robinson v. Crummer, 5 Gilm. (III.) 318; Tucker v. Phillips, 2 
Metcalf (Ky.), 416. 



64 TWO \VKONGS IN ONE NAME. [ § 50. 

the same proceeding ; that is, a writ of restitution can- 
not be awarded on conviction in a criminal case, but gets 
its authority by virtue of the statutory proceeding.' 

Where the remedy has not been changed, by statute, 
an indictment may be supported at common law for a 
forcible -entry and detainer, but to justify an indictment, 
it seems the entry must appear to have been accompanied 
bv a breach of the peace." 

§ 50. Two wi'ongs in one name A forcible entry is 

defined to be the offense or wrong of taking possession, 
by exercise of strength or compulsory power, of lands or 
tenements against the will of the person entitled to the 
possession and without authority of law. "While .the 
two wrongs of forcible entry and forcible detainer are 
distinguishable in their nature, they are usually con- 
nected under one name. The degree of force and the 
particular wrongs necessary to support the action are 
regulated to a great extent by the statutes of the various 
States. 

A forcible detainer is defined to be the offense of 
keeping possession of real property by strength and by 
arrangement to exclude the adverse claimant, and with- 
out authority of law. A forcible detainer may take 
place either after a forcible or a peaceable entry." 

The actipn of forcible entry and detainer, or forcible 
detainer, being a special statutory proceeding, summary 
in its nature an,d ih derogation of the common law, must 

' State V. Walker, 5 Sneed (Tenn.), 359. 

- Commonwealth v. Shattuck, 4 Gush. 141; Rex v. Nichols, 1 Ken- 
yon, 513. 
' Abbott's Law Dictionary. 1 Bishop, Criminal Law, Sec. 536. 



§50.] TWO WEONGS IN ONE NAME. 65, 

be strictly pursued, otherwise the proceeding is coram 
non judiee. ' 

The action of forcible entry and detainer abates upon 
the death of a party during its pendency." 

Forcible entry and detainer are in substance and in 
principle but one offense and are treated of in the books 
together as " Forcible Entry and Detainer ; " but they 
are distinct and different acts. The forcible entry was 
an offense at common law and the detainer is punishable 
by statute only." 

In Arkansas, forcible entry and detainer is a tort, 
pure and simple. Force is the gist of the action. The 
remedy is <lBsigned to protect the actual possession, 
whether rightful or wrongful." 

' French v. Miller, 136 111. Gil. 
- Havens- V. Biokford, 9 Humph. (Tenn.) 673. 
^Commonwealth v. Toram, 2 Pars. (Pa.) Sel. Cas. 411. 
< Johnson v. West, 41 Ark, 53.5. 



66 WHEN ACTION WILL LIK. 



CHAPTER IV. 

WHEN THE ACTION WILL LIE. 

Second.^ 

Section .il. Statutory provisions. 
53. What force necessary. 

53. When the owner may enter peaceably. 

54. Peaceable entry defined. 

55. Who liable in this action. 

56. What constitutes forcible entry. 

57. Detention after demand unlawful. 

58. Actual force not necessary. 

Third.— FoK Entry Upon Vacant Lands. 

59. The action will he for entry upon vacant lands. 

60. Owner deemed to have possession. 

Fourth.— Against a Tenant Holding Over. 

61. The fourth cause of action. 

62. Possession by fraud. 

63. Sub-tenants. 

64. Holding over after tei-m expires. 

65. Possession under lessee. 

66 What complaint must show. 

67. Conclusive possession. 

Fifth.— Against a Purchaser Who Fails to Com- 
ply With the Contract of Purchase. 
t 

68. The fifth statutory cause of action. 

69. Who may sue under this clause. 

70. What necessary to give jurisdiction. 

71. Growing crops. 

Sixth. — Where the Premises Have Been Sold 
AT JuDicLiL Sale. 

72. The sixth cause of action. 



§ 51.] STATUTORY PROVISIONS. 67 

Section 73. When right first given. 

74. Detention of premises after sale. 

75. Against whom suit brought. 

76. Demand necessary. 

77. The proof necessary. 

78. Judicial sales. 

79. "What steps necessary to recover under this clause. 

§ 51. Statutory provisions. 

Sec. 2. The person entitled to the possession of lands 
or tenements may be restored thereto in the manner here- 
after provided : 

\ 
First — When a Forcible Entry is Made Thereon. 

In law, the phi'ase "forcible entry " means the unlaw- 
ful and violent entry and taking possession of . lands or 
tenements with actual force or violence. 

A forcible entry and (;letainer is a violent taking and 
keeping possession by one of any lands and tenements 
occupied by another, by means of threat, force or arms, 
and without authoritj'^ of law.' 

A party claiming the possession of lands and tenements 
should not take them "with strong hand nor with a 
multitude of people;" even the owner of land is liable 
in forcible entry and detainer if he makes a forcible entry 
upon the actual possession of the plaintiff.'' 

Although a landlord is wrongfully kept out of posses- 
sion, he has no right to resqrt to force to effect an entry. 
Such an entry is unlawful, and being so, an action for 
trespass will lie." 

'1 Bouv. Diet. 598; 4 Black. Com. 148. 
^ Huftalin v. Misner, 70 III. 305. 
2 Wilder et al. v. House, 48 111. 379. 



68 WHAT FORCE NECESSAEY. [ § 52. 

In Missouri, any person who shall enter upon any 
lands with force or strong hand, shall be deemed guilty 
of a forcible entry.' 

The fact that the tenancy of a house has terminated 
and the tenant has promised to leave on a particular day, 
does not justify the landlord under the statute in putting 
him out by force ; but if the tenant leave the house with 
his family and furniture and lock the door, the landlord 
may break into his own house without violating the 
statute. But in case the tenant is only temporarily 
absent, he ^vould not have the right to break open the 
door." 

Expulsion by force, without resort to legal process, of 
an occupant of the premises is illegal. 

§ 52. What force necessary. — On the question of 
what constitutes a forcible detainer, it has been held, 
that the mere act of nailing up the door of an house does 
not amount to retaining forcible possession of it.' 

In cases where the remedy has been extended by stat- 
ute to include tenants holding over, grantors and vendors 
refusing to yield possession, the force required to con- 
stitute a forcible detainer is constructive only and all 
that is necessary is that the tenant, grantor, or other 
person having possession refuses to yield it to the person 
entitled thereto after his right to it has been duly termi- 
nated or parted with.* 

To constitute a forcible entry and detainer under the 

' Emei'Bon v. Sturgeon, 59 Mo. 404. 

' Hillary V. Gay, 6 C. & P. 384; Mason v. Powell, 38 N. J. 576. 

» Hopkins v. Buck, 3 A. K. Marsh, 110. 

■■Doty V. Burdick, 83 111. 473: Davis v. Woodward, 19 Minn. 187. 



§ 53.] ' WHEN OWNER MAY ENTEK. 69 

statute, actual force is not necessary. ' Originally, actual 
force was necessary.' 

To constitute forcible entry and detainer, violence is 
not essential, and entry against the will of another is 
forcible in legal contemplation.'' 

§ 53. When the owner may enter peaceably. — The 

owner of land, having the present right of immediate 
possession, may enter the same peaceably, though 
occupied by another, without becoming a trespasser." 

In this State it has been constantly held, that any 
entry is forcible within the meaning of the law that is 
made against the will of the occupant. The language 
of the Supreme Court is as follows : " We state, then, 
after a full examination of this subject, that in our opin- 
ion the statutes on forcible entry and detainer should be 
construed as taking away the previous common law right 
of forcible entry by the owner, and that such entrj^ must 
be therefore held illegal in all forms of action.'" 

The use of force and violence is an offense of itself, 
for which, he who uses it may be indicted and punished. 
Whatever may be the legal rights of the parties, the 
lawfulness of the entry in no wise excuses the violence 
used to obtain the possession." 

There is a distinction between cases where the original 
entry was forcible and those where it was peaceable 
and tlie detention alone is wrongful and tortious. 

' Atkinson v. Lester et al., 3 111. 407; Bloom v. Goodner, 1 111. 63. 

^Croflf V. Ballinger, 18 111. 300.^ 

3 City of Bloomington et al. v. Brophy, 33 111. App, 400. 

^ Reeder et al. v. Purdy et ux., 41 111. 379. 

= Commonwealth v. Kensey, 3 Pars. (Pa.) Sel. Cas. 401. 



70 rOECIBLE ENTET DEFINED. [ § 54. 

Where the entry is forcible, the right of entry is com- 
plete as soon as the entry is made in the person whose 
possession is thus tortiously invaded; but where the 
entry is mad(? peaceably and without force, it is the 
detention alone that is unlawful and tortious and no right 
of action exists until after demand for possession.' 

§ 54:. Forcible entry deflued. — Originally a forcible 
entry was where the possession of plaintiff was invaded 
by force ; but it is not now necessary to give the fight 
of action, that any actual force should be resorted to, 
the Supreme Court having uniformly held that, in an 
a,ction of forcible entry and detainer, or in a forcible 
detainer, constructive force only is necessar^^ A mere 
wrongful entry or wrongful holding over only is required ; 
as in that case, as soon as the detention becomes illegal, 
it is, in contemplation of law, forcible." 

Of course, in a forcible invasion of the rightful pos- 
session, the offense is consummated as soon as the entry 
is made, and at that moment the right of action vests in 
the party entitled to possession. Where a person entered 
upon the possession of another without his consent, and 
by removing the fence and resetting the same, took pos- 
session of a strip or parcel thereof, it is a forcible entry 
under the terms of the statute and sufficient to support 
the action." 

Where the entry is lawful and the possession is unlaw- 
fully detained, as in case of landlord and tenant, then 

' Thomasson v. Wilson, 46 111. Ap^. 398. 

« Dudley ei al. v. Lee, 39 111. 342; Doty v. Burdick, 83 111. 473; 
Smith V. Hoag, 45 III. 350. 
« Coverdale v. Curry, 48 111. App. 313. 



§ 55.] WHO LIABLE IN THIS ACTION. 71 

the right of action vests in the rightful landlord, as soon 
as the tenant's right of possession ceases under his lease. 
Or, in case of an alienation by the landlord during the 
existence of the lease, then the grantee of the landlord 
is entitled to possession by operation of law, on the deter- 
mination of the lease, and the right of action vests in 
him. 

Ever}' entry against the will of the occupant is forcible 
in the meaning of our statute.' 

The owner of real estate has a right to enter upon and 
enjoy his own property if he can do so without a forcible 
disturbance of the possession of another ; but the peace 
and good order of society require, that he shall not be 
permitted to enter against the Avill of the occupant, and 
hence the common law right to use all necessary force 
lias been taken awaj'. His remedy must be sought 
through those peaceful agencies which a civilized com- 
munitj' provides for all its members." 

§ 55. Who liable in this action The statute of 

Illinois specially provides, that the tenant, or any person . 
claiming under him, may be liable to this action : but it 
seems, that while the action will lie against a person who 
makes a forcible entry, it will also lie against any person 
going in under the person who made such forcible entry 
collusively, with the knowledge of such force tind for the- 
purpose of availing himself of it, because such person might 
well be considered as himself committing the forcible entry. 
But Ave cannot hold, that one taking possession in good 
faith, in violation of no law, is liable to beturned out by this 

' Croff V. Ballinger, 18 111. 300. 

" Reeder et al. v. Purdy et ux., 41 111. 379, 



72 WHAT CONSTITUTES FOEUIBLE ENTRY. [ § 56. 

summary remedy, because the person from whom he pur- 
chases may, years ago, have made an entry by force. 
I-Iow can a purchaser be said to be guilty of an unlawful 
act of which he has never heard? In order to reach 
him in this action, the plaintiff must show him to have 
been in some way privy to the unlawful entry, or to have 
so acted, that he may fairly be considered as adopting it 
and making the act his own. If we were to hold the 
contrary rule, the result would be, that the hojiest occu- 
pant of land, who had entered peaceably and in good 
faith, would be liable to be visited with a punishment 
designed onlj'- for the wrongdoer. ' 

Under our statute, although the landlord may be 
wrongfully kept out of the possession, he has no right to 
use force to effect an entry. In case he should do so, an 
action of trespass will lie against him." 

§ 56, What constitutes forcible entry Entry by 

violence or breach of the peace is not necessary. Forci- 
ble entry does not necessarily mean the taking of real 
estate from the possession of another by breach of the 
peace. The taking of such property by opening a gate 
and removing cattle or other stock therefrom, against the 
will of the one occupying such property, is a forcible 
entry under the law. 

JN'o one, not even the owner, has the right to forc'ibly 
take real estate from the possession of another, no matter 
how justly he may be entitled to it ; and if the owner 
takes such possession against the will of the person in 

1 Ballaace v. Cuvtenius et al., 3 Gil. (111.) 449; Clarlf v. Barker, 44 
111. 349. 

2 Wilder et al. v. House, 48 111. 279. 



§ 57. j DETENTION AFTEE DEMAl^D UNLAWFUL. 73 

possession, he will be liable in an action of forcible entry 
and detainer, even though no violence is employed, and 
even though the occupant's possession may be unlawful.' 

Under the statute of forcible entry, actual violence 
amounting to a breach of the peace is not necessary in 
any case. Force and violence, short of a breach of the 
peace, are sufficient where the entry is required to be 
forcible. ^ 

Where a lease authorizes the landlord to enter into the 
possession of the leased premises, with or without process 
of law and expel or remove the tenant or any other per- 
son occupying the premises, and to use such force as may 
be necessary in so doing, and to regain and repossess the 
premises, in, case the tenant holds over, the landlord may 
enter and remove the tenant therefrom, after the expira- 
tion of the term of the lease, using no unnecessary force 
for the purpose, and a tenant can maintain no action of 
trespass therefor." 

Second — 7'he Action Will Lie for Unlawfully Withhold- 
ing Possession. 

When a peaceable entry is made, and the possession 
unlawfully withheld. 

§ 57. Detention after demand unlawful.^ — Every 
detention of premises by persons whp have intruded into 
the possession of another^ after demand duly made, 
becomes an unlawful detention, however peaceable the 
entry may have been made,' 

' Phelps V. Randolph, 147 111. 335. 
■' Smith V. Hoag, 4.5 111. 350. 
''Fabri v. Bryan et al., 80 111. 183. 
^ Thomasson v. Wilson, 146 111. 384. 



7-1- DKTENTION AFTEE DEMAND UNLAWFUL. [§ 57. 

Where a person entered into the possession of the 
premises peaceabl}' and in good faith as the tenant of a 
purchaser from one who had previously made a forcible 
entry, the tenant, or even his landlord, riot being privy 
to the wrongful act of the grantor or having any knowl- 
edge of it, sucli occupant is not liable to be turned out 
by this summary remedy ; but the action will probably 
lie against any person going in under the person who 
made the forcible entrj^ collusively, with knowledge of 
such force and for the purpose of availing himself of it, 
because such person might well be considered as himself 
committing the forcible entry." 

In this form of action, it is not perceived that pay- 
ment of taxes on the lands tends to prove an issue in the 
case, nor does ownei'ship. The whole question is one of 
actual possession, and a forcible entry upon that posses- 
sion, and not of payment of taxes or of mere acts of 
ownership not amounting to actual possession. Posses- 
sion is a fact that is in no just sense dependent on the 
payment of taxes, whether in good or bad faith or upon 
acts of ownership not constituting possession. Thei'e are 
acts which imply an assertion of title, which do not 
constitute actual possession. The recording of title 
papers, the offer to sell or lease the land, a sale of timber 
or stone, the bringing of suits to recover for trespasses, 
the license of other persons to take wOod, coal or stone 
from the premises, are all acts whicii indicate an asser- 
tion of ownership, but none of them, nor even all of 
them, will support a forcible entry and detainer." 

' Clark V. Barker, 44 111. 349. 

' JlcCartner v. McMuUen, 38 111. 237. 



§§ 58, 59.] ACTUAL FORCE NOT NECESSAKY. 75 

§ 58. Actual force not necessary. — To constitute 
forcible entry and detainer under the statute of this State, 
it is not necessary that actual force and ph3'sioal violence 
should be used.' 

Where the father permits his son to occupy his barn 
continuously with himself, for a long time, under no 
contract or agreement, this will not veist , in the son an}' 
right in the property or to its possession. It amounts 
only to an implied license, subject to revocation by notice, 
at any time. In such case, the action of forcible entiy 
and detainer by the father against the son for the posses- 
sion will lie.' 

Third — For JEntry into Vacant Lands. 

§ 59. The action will lie for entry upon vacant 
lands. — When entry is made into vacant or unoccupied 
lands or' tenements without right or title, this action will 
lie. 

In the case of unoccupied lands, acts which indicate an 
assertion of ownership only, do not constitute a possession 
that will support an action of forcible entry and detainer.^ 

In the case, of ■ Childs v. Stephens, 3 A.,K. Marsh, 3J-T. 
the court held, that there might be a possession without 
the plaintiff being on the land when the entry was made. 
On the English and American authorities, the court held, 
that the right of entry was not a question in this form 
of action, but simply the possession. In that case, a 
tenant gave notice to his landlord that he would surrender 
possession on a specified day, and, in accordance with 

' Atkinsou V. Lester et al., 1 Scam. (111.) 407. 
' Dunstedter v. Dunstedter, 77 111. 580. 
3 McCartney v. McMuUen, 38111. 237. 



76 THE FOURTH CAUSK OF ACTION. [§§60, 61. 

the notice, removed from the premises, but the landlord 
failed to attend. Afterwards the landlord's agent went 
on to the place, laid up the fences, laid the foundation 
for a house .and burned a plant-bed. The defendant, 
whilst no person was residing on the place, moved in and 
occupied the premises. The court on this evidence found, 
that the jury were wai'ranted in finding a verdict in favor 
of the plaintiff.' 

§ 60. Owner deemed to have possession Whoever 

has title to unoccupied lands, is deemed to be in possession 
for all purposes in defense or protection of his rights. ° 

The claim of land by virtue of the pre-emption laws of 
the United States, without occupation or enclosure of the 
same, is not sufficient to sustain the action." 

A. peaceably entered into unoccupied premises. B. 
procured A.'s arrest without warrant, and while A. was 
thus in custody, B. took forcible possession of the prem- 
ises and removed A.'s goods. In this case, A.^ could 
maintain the action of forcible entry and detainer.'' 

Fourth — Against a Tenant Holding- Ore r. 

§ 61. The fonrth cause of action The action will 

he when any lessee of the lands or tenements, or any 
person holding under him, holds possession without right, 
after the termination otVthe lease or tenancy by its own 
limitation, conditions or terms, or by notice to quit, or 
otherwise. 

' McCartney v. McMuUen, 38 1)1. L'37. 

-' Brooks V. Bruyn, 18 111. 539. 

« Barlow V. Burns, 40 Cal. 351. 

■• Pratt V. Stone et al. , 10 111. App. 633. 



§ 62.]' rossEssioN by rKAUD. 77 

The possession of the tenant cannot avail the landlord 
to any greater extent than it would the tenant if he was 
claiming and holding for himself." 

§ 62. Possession by fraud. — By procuring the posses 
slop from tlie tenant of the defendant, the party so pro- 
curing the possession stepped into the tenant's shoes and 
must hold the possession in the same capacity as the 
tenant did, to whose rights alone, he succeeded. Such is 
acknowledged to be the law, the policy of which is very- 
manifest. It is to prevent an}' party from tampering 
with ihe tenant to whom the possession of land has been 
confided ; it is to j)revent a tenant from betraying the 
rights and interests of the landlord fi^om whom he 
obtained the possession. The law will compel the ten- 
ant to act in good faith toward his landlord.'' 

A landlord who has recovered judgment in an action 
of forcible entr}' and detainer against his tenant; may, 
under the writ, dispossess a sub-tenant who is not a party 
to the suit, if such sub-tenant has entered jiendente lite, 
but not so if he was previously in possession. Our 
statute in terms contemplates an action against the sub- 
tenant, , and so it has been construed b}' this court. This 
court held, as a principle of universal law, that a person 
cannot be turned out of his possession by virtue of a 
judgment and execution in a proceeding to which he Avas 
not a party, unless he entered jjendente lite.'' 

' Patterson et al. v. Hubbard etal., 30 111. 201; Messingill v. Boyles, 
11 Humphrey, 113. 

- McCartney v. Hunt et al., 16 111. 76. 

''Clark V. Barker, 44 111. 349; Reed v. Hawley, 45 111. 40: Brush v. 
Fowler, 36 111. 53; Leindecker et al. v. Waldron, 53 111. 283. 



78 SUB-TKSANTS. [^63. 

§ 63. Snb-tenaiits. — AVhere a lessee of premises bas 
sublet a portion of the same and afterwards forfeits his 
own lease by non-payment of rent and is evicted, an 
action of forcible detainer will lie by the landlord against 
the sub-tenant to recover possession of the portion of the 
premises held by him ; and this is true,' even if the land- 
lord had consented to the sub-letting.' 

The theory upon which this doctrine is based is, that 
whenever a suit will lie against the tenant, it will lie 
against the sub-tenant. This must be so from the nature 
of the sub-tenant's holding; it rests entirely upon the 
original lease and must fall with that. If that is for- 
feited, the right of the sub-tenant is gone and he may be 
evicted by forcible detainer as well as the original lessee. 
It would be a mockery of the rights of the landlord if 
we were to hold that, where the lessee of a house con- 
taining a dozen rooms had sub-let a single room and 
afterwards forfeits his own lease by non-payment of 
rent and is evicted, the sub-tenant can nevertheless 
retain possession of the room rented to him if he 
promptly pays his own rent, or can be evicted only by 
the slow and expensive action of ejectment." 

Where a landlord had made a second lease, to com- 
mence from the close of the first term, action against 
the first tenant holding over was properly brought by 
the second tenant, who alone was entitled to the posses- 
sion at that time." 

The action lies by a lessor against a person to whom 

' Patohell & Turner v. Johnston, 64 111. 305. 
■' Patchell & Turner v. Johnston, 64 111. 305. 
'Ball V. Chad wick et al., 46 111. 28. 
J 



§ 6i.] HOLDING- OVEK AFTER TEEM EXPIKE8. 79 

his lessee has attorned and who has turned such lessee 
out of possession.' 

Under former statutes, a demand was required before 
commencing suit in forcible entry and detainer, whether 
the tenancy expired by expiration of the term or by for- 
feiture and notice to quit." 

But under the statute of 1845 it was held, that a 
demand before the end of the term would not authorize 
the action.' 

§ 64. Holding over after term expires If a tenant 

wrongfully holds over after the expiration of his teri^ 
and refuses to surrender the leased premises, the land- 
lord's remedy is by action of forcible detainer or eject- 
ment. But if the landlord, during the temporary absence 
of the tenant, enters and removes the tenant's stock and 
other property therefrom and excludes the tenant, the 
latter may be restored to his possession by the action of 
forcible entry and detainer." 

Suit on a lease to recover rent must be against the 
defendant in the same capacity in which he signed the 
lease. " 

A suit of forcible detainer cannot be maintained against 
several persons who hold in severalty; but in certain 
cases, where the action is joint in its conception and 
afterwards the tenancy is several, all may be joined in one 
suit, though the verdict and judgment must be several." 

' Cox V. Cunningham, 77 111. 545. 

■Ballv. Peck, 43 111. 483. 

^Doran v. Gillespie, 54 111. 366. 

■■ Phelps V. Randolph, 147 III. 335. 

^ Neufeld v. Beidler, 37 lU. App. 34. 

« Gould et al. v. Hendrickson, 9 111. App. 171. 



80 POSSESSION UNDEE LESSEE. [ § 65. 

A party cannot bring separate suits for several sums 
past due on a lease ; if more than one payment is due, 
these payments should be consolidated into one suit." 

Under our statute, the action of forcible entry and 
detainer lies against a sub-lessee holding over after the 
termination of the original lease." 

§ 65. Possession under lessee The following in- 
struction is correct and should have been given to the 
•jury : 

" The court instructs the jury, that the main question 
in this case to be determined is, whether the plaintiff was 
a sub-tenant of the premises, occupjnng the same under 
a lease froth Breed, or whether she was occupying the 
same for Breed and under his lease from the defendant, 
Mrs. Miller. And if the jury find, from the evidence, 
that the alleged lease from Breed is only a pretense and, 
in fact, never had anj^ existence, but that the plaintiff 
was occupying the premises with Breed, or for him and 
under his lease, then the law is for the defendants and 
the plaintiff cannot recover. ' ' - 

It can not be tolerated that a tenant who holds under 
Avritten lease shall, by a secret arrangement, constitute 
another his sub-tenant and, after judgment is obtained 
against the lessee, such other shall insist that he is not 
bound by the judgment, as he was not a party to the 
proceedings. If the sub-tenant was alone in the occu- 
pancy of the premises, there might be some color for the 
claim that she should have been a party to the suit. 
But she was not ; Breed occupied the premises with her. 

' Casselberry v. Forquer, 27 111. 170. 

"■ Reed v. Hawley, 45 111. 40. 

3 Miller et al. v. White, 80 111. 580. 



§§ 66, 67. J WHAT COMPLAINT JtOST SHOW. 81 

They were his home and appellant had no knowledge of 
this alleged subletting.'" 

^ 66. What complaint must show.— To give justices 
jurisdiction, the plaintiff must state such facts as show 
tiliat the relation of landlord and tenant existed, as well 
as a holding over after a demand made in writing by the 
landlord. ° 

To give the court jurisdiction, the petition should 
show that the defendants entered into the premises under 
, a le^se, or by the assent of the plaintiff, or some circum- 
stance from which it can be presumed that the relation 
of landlord and tenant is shown to exist.' 

If a sub-lessee holds over after the. termination of the 
original lease, he is liable to eviction by an action of 
forcible detainer." 

§ 67. Collusive possession — In an action of forcible 
entry and detainer by a landlord against his tenant after 
the termination of the lease, the holding over of the land 
is the foundation of the action and must necessarily be 
proved, like any other substantial fact.* 

The action lies by a lessor against a sub-lessee holding 
over after the termination of the original lease." 

If the proprietor- of land obtains possession hj col- 
lusion with the tenant of another, the lessor will recover 
possession by forcible entr\' and detainer, whether he is 
entitled to retain such possession as against the proprietor, 

' Miller et al. vs. White, 80 111. 580. 
'Wellsv. Hogan, 1111. 337. 
« Beel V. Pierce et al. , 11 111. 93. 
•• Reed v. Hawley, 45 111. 40. 
' Reed v. Grant, 4 Cal. 176. 
« Reed v. Hawley, 45 111. 40. 
6 



82 FIFTH CAUSE OF ACTION. [ §§ 68, 69. 

or not. The possession obtained by collusion with the 
tenant only gives the proprietor the right to hold in the 
capacity of the person with whom he colluded.' 

Fifth — Against a Purchaser v:ho Fails to Comply with 
the Contract of Purchase. 

% 68, The fifth statutory cause of action — The 

action will lie upon a vendee, having obtained possession 
under a written or verbal agreement to purchase lands or 
tenements and having failed to comply with his agree- 
ment, withholds possession thereof after demand in writ- 
ing by the person entitled to such possession. 

Where the vendor of real property brings forcible 
detainer against the purchaser to recover possession for 
^non-compliance with the contract of sale, it will be suffi- 
cient to show that the defendant at the time the suit was 
brought was in possession In' himself, or by others hold- 
ing under him." 

§ 69. Who may sue under this clause.^Under this 
clause of the statute, the grantee of a vendor may sus- 
tain the action.' 

In litigation arising under clause 5 of the statute, a 
purchaser having entered into the possession under a con- 
tract of purchase and failing to. perform his contract is 
estopped from denying his vendor's right." 

The detention of the premises under this clause may 

' McCarthy v. Hunt et al., 16 111. 76. 
2 Lesher v. Sherwin, 86 111. 420. 
' Monsen v. Stevens, 56 111. 335. 
••Lesher v. Sherwin, 86 111. 430. 



§ 70. J WHAT NECESSARY TO GIVE JURISDICTION. 83 

be by the purchaser or by others under him ; in either 
case it is ground for the action.' 

But the relation of vendor and vendee must exist ; the 
vendee must have obtained possession under a contract of 
purchase and his failure to comply with the contract 
must be before obtaining a deed to the premises to give 
the cause of action." 

Where a conveyance is made for the purpose of secur- 
ity and taking a bond back for re-conveyance of the 
premises, the grantee in such case is not liable as a vendee 
hereunder on default of payment, as such a conveyance is 
not a contract of purchase in the meaning of the statute.^ 

In order to give a justice jurisdiction in an action of 
forcible detainer, as between the vendor and vendee of 
land, under the act of 1861 the following elements must 
be shown by the complaint : First. The relation of vendor 
and vendee must exist. Second. The vendee must have 
obtained possession of the land iinder the contract. And 
then it is not sufficient that the vendee has at any time 
failed to comply with his contract, but he must have 
failed or refused to comply with it, before obtaining a 
deed of conveyance. If either of these elements is want- 
ing, the justice acquires no jurisdiction." 

§ 70. What necessary to give jurisdiction. — In 

forcible detainer by the vendor of land against his vendee 
to recover possession, the written agreement to sell and 
the tender of a deed under the contract, are proper 

' Lesher v. Sherwin, 86 111. 430. 

' Haskins et al. v. Haskins, 67 111. 446. 

8 West V. Frederick, 63 111. 191. 

•> Haskins et al. v. Haskins, 67 111. 446. 



84 M-HAT NECESSAEY TO GIVE JUKISDICTION. [ § 70. 

evidence to show that defendant failed to comply with 
his contract. ' 

■ Where the defendant, entering into possession under a 
contract of purchase, fails to comply with such contract, 
he will be estopped from denying his vendor's right to 
possession in forcible detainer, and the plaintiff need not 
prove any prior possession in himself.'' 

Where the i-elation of parties is that of vendor and 
vendee and elements above stated are not shown, a pro- 
ceeding for forcible entry and detainer will not be sus- 
tained.^ 

Under the act of 1861, the vendor of land may main- 
tain an action of forcible entry and detainer against the 
vendee, where the latter has entered into possession of 
the premises under a contract of purchase, but before 
obtaining a deed of conveyance to the same, and fails 
and refuses to comply with the terms of the contract.* 

In Illinois and some other States, the vendor can 
maintain this action against the vendee, where he has 
failed or refused to comply with the conditions of the 
contract under which he holds, or has forfeited it.'* 

Where a vendee, under a contract of purchase, has 
entered into possession, and, before obtaining a deed, 
refuses to comply with the contract and assigns his con- 
tract, or, without assigning- the contract, puts another 

' Lesher v. Sherwin, 86 111. 430. 

-■ Lesher v. Sherwin, 86 111. 420. 

3 Dixon V. Haley, 16 111. 145. 

^ Wilburn v. Haines, 53 111. 207. 

»Monsen v. Stevens, 56 111. 335; Wilburn v. Haines, 53 111. 207. 
Williamson v. Paxton, 18 Gratt. (Va.) 475; Beard v. Bricker, 3Swan. 
(Tenn.) 50; Sullivan v. Ivey, 3 Sneed (Tenn.), 487. 



§ 71. J GROWING CROPS. 85 

party in possession, he himself abandoning the posses- 
sion and refusing to comply with the contract, forcible 
entry and detainer can be maintained against the party 
in possession. He stands in the shoes of the vendee and 
is the vendee for all the purposes of this remedy.' 

Where a party borrows money and conveys land to 
secure its re-payment with interest, and takes back a 
contract for the re-conveyance of the land upon payment, 
the relation of vendor and vendee will not exist between 
them and the party making the loan cannot maintain 
forcible detainer to recover possession upon default of 
payment by the party in possession." 
' Where the landlord, before the end of the term, con- 
veyed the premises by a deed absolute to another and an 
agreement was made at that time that the landlord 
should procure the possession for the grantee by a cer- 
tain date, or forfeit $75.00; held, that this did not 
amount to a reservation of any right to possession in the 
landlord and he could not maintain forcible detainer 
against the tenant. The principle governing this decision - 
is, that even if such an agreement should, be construed as 
a reservation of the right of possession, it would be 
inconsistent with the deed which carries the right of 
possession with it', and being at the same time, would be 
void.' 

§ 71. Crrowing crops Sec. 4. In case of forfeiture 

under a contract of purchase, the purchaser shall be 
entitled to cultivate and gather crops, if any, planted by 

'Jackson v. Warren, 33 111. 331. 
■^ West V. Frederick, 63 111. 191. 
«Purdy V. Rakestraw et al., 13 111. App. 480. 



86 THE SIXTH CAUSE OF ACTION. [ §§ 72, 73. 

him and grown or growing on the premises at the time 
of the commencement of the suit, and shall have the 
right to enter for the purpose of removing such crops, 
first paying or tendering to the party entitled to the pos- 
session a reasonable compensation for such use of the land 
before removing such crops. ' 

Sixth — Where the Premises Have Been Sold at Judicial 

Sale. 

§ 73. The sixth cause of action The action will lie 

when lands or tenements have been conveyed by any 
grantor in possession, or sold under the judgment or 
decree of any court in this State, or by virtue of any 
power of sale in any mortgage or deed of trust contained, 
and the grantor in possession, or part}" to such judgment 
or to such mortgage or deed of trust, after the expira- 
tion of the time of redemption is allowed by law, refuses 
or neglects to surrender possession thereof after demand in 
writing by the person entitled thereto, or his agent. 

§ 73. When i-ight first given — The right of action 
under a judicial sale was given by the laws of ISOI. 
The right of action by a pui'chaser at a sale made under 
the power given in the mortgage or trust-deed was first 
given under clause 6 of this statute in Is 74. The right 
of action by a grantee against a grantor in possession 
was added by amendment in ISSl." 

The title of a purchaser at a foreclosure sale seems to 
date from the execution of the mortgage; he is not 
bound by the mortgagor's lease executed after the mort- 

' Rev. Stat. Cli. 57, sec. 4. 

- See Rev. Stat. 1 S74, p. 535 and aniendments thereafter. 



§ 74.] DETENTION AFTKK SALE. 87 

gage, and he may eject the lessee of the mortgagor with- 
out notice.' 

The action of forcible entry and detainer will lie 
against all persons bound by a decree, even though they 
may not be named in it." 

Where the defendant held possession and the plaintiff 
established his right of possession against the defendant 
in execution by proof of judgment, writ of sale and 
sheriff's deed, it is sufficient ; but in case the party in 
possession is a stranger to the judgment, he must be shown 
to hold under the judgment debtor by a right acquired 
since the judgment lien attached, to enable him to sus- 
tain the action.' 

The writ of possession issued upon a decree and the 
action of forcible entry and detainer seem to be concur- 
rent remedies -and both may be pursued untilsatisfaction 
is had by one remedy." 

A purqhaser at a foreclosure sale, after the expiration 
of the time for redemption, may bring this action after 
demand of possession in writing." 

§ 74. Detention of premises after sale The remedy 

of forcible detainer, given by the statute, in favor of a 
purchaser at a judicial sale, after the time of redemption 
has expired, is not restricted to the nominal party against 
whom the judgment is obtained, but may be employed 
against anyone who, either before or after the time of 

' Bartlett v. Hitchcock, 10 III. App. 87. 

-Rice V. Brown, 77 111. 549. 

" Mcholson et al. v. Walker et al., 4 111. App. 404. 

■* Kessinger v. Whittaker et al., 82 111. 22. 

'Lehman v. Whittington, 8 111. App. 374. 



88 AGAINST WHOM SUIT BROUGHT. [§ '''5. 

redemption has expired, obtains possession from the 
defendant in the judgment.' 

§ 75. Against whom suit brought — A purchaser at 
an execution sale must make a demand on the occupant 
before he can maintain forcible detainer.'' 

An action can be brought under the sixth clause of the 
second section of the foi'cible entry and detainer act only 
against a party to such judgment or decree." 

In an action under the statute, in forcible entry and 
detainer by the purchaser at the sheriff's sale, to obtain 
judgment of land against a party claiming ownership in 
fee, the question of title is put in i^sue. ' 

Although the question of title cannot arise on the trial 
of an action of forcible detainer, nevertheless the pur- 
chaser at a judicial sale cannot recover against the judg- 
ment debtor, or one succeeding to his rights and posses- 
sion, unless he offers in evidence a valid judgment, execu- 
tion and sheriff's deed. These are indispensable requisites 
to a I'ecovery, because a sale of the land under the judg- 
ment and a failure to redeem must be shown." 

When a remedy by an action of forcible entry and 
detainer is sought under the second clause of the act of 
1861, it is not restricted to the nominal party against 
whom the decree was rendered, but may be employed 
against any one who, even after the expiration of the 
time of redemption from the sale under the deci-ee and 

'Kratz V. Buck, 111 III. 40. 

- Dickason v. Dawson. 85 111. 53. 

■'Kingsbury v. Perkins et al., 15 111. App. 240. 

* Kepley v. Luke, 10 111. App, 403. 

« Kratz V. Buck, 111 111. 40. 



§§76, 77.] DEMAND NECESSAEY. 89 

/ 

after the execution and delivery of the master's deed to 
the purchaser, by collusion with the defendant in the 
decree, obtains and holds the possession of, the premises 
without the knowledge or consent of the purchaser. ' 

§ 76. Demand necessary. — No action arises against a 
^enant for holding over until demand of possession has 
been made. 

In this action the plaintiff must show that the posses- 
sion of the defendant is wrongful as against him, and 
this he may do by proving that the defendant went into 
possession under the party to the trust deed, under which 
plaintiff claims after the lien attached t» the land. 

§ 77. The proof necessary — To recover in an action 
of forcible entry and detainer, under the act of February 
20, 1861, against one who remains in possession after 
his rights have been divested by judicial sale, the plaint- 
iff must show a valid judgment, execution and deed.^ 

The plaintiff's right to possession, where the defend- 
ant in execution is defendant also in the action of forcible 
detainer, is fully established by the introduction ,in 
evidence of the judgment, execution and sale thereunder 
and sheriff's deed. But where the defendant in forcible 
detainer is a stranger to the judgment, it must be shown 
that the party in possession holds in subordination to the 
title or possession of the judgment rendered ; that his 
title was acquired subsequent to the lien of the judg- 
ment.- If his right was acquired prior to the judgment, 
a party leases the land for a term of years and the tenant 

■Jackson v. Warren, 33 111. 331; Dudley et al. v. Lee, 39 111. 339; 
Preston et al. v. Zahl, 4 111. App. 423. ' 
Johnson v. Bantock, 38 111. 111. 



90 JUDICIAL SALES. [§''8. 

takes possession, the purchaser under the execution can- 
not recover possession in an action of forcible detainer.' 

A purchaser at a sheriff's sale cannot maintain an 
action of forcible detainer after receiving a deed, without 
first making demand for possession.'' 

Where a plaintiff fails to show any privity of estate 
between the defendant and the mortgagor and there is 
nothing to show by what right defendant is in possession, 
the case is not made out against hira.^ 

A person in the quiet possession of mortgaged prem- 
ises at the time of the commencement of the foreclosure 
suit, who is put out of possession by means of a writ of 
possession issued on a decree to which he was not a 
party, maj' maintain an action of forcible entry and 
detainer to restore him the possession from which he has 
been forcibly and unlawfully ousted.' 

§ 78. Judicial sales In Illinois, the right of action 

is extended to purchasers at judicial sales.' 

Whei'e a tenant, after a sale of leased premises, attorns 
to the purchaser, but, after a judgment against him for 
the recovery of possession in favor of the original land ■ 
lord, paid such landlord's attorney one month's rent and 
agreed to deposit all subsequent rents in the bank, this 
creates the relation' of landlord and tenant between 
them." 

' Nicholson et al. v. Walker et al., 4 111. App. 404. 
' DickaBon v. Dawson, 85 111. .53. 
' Preston et al. t. Zahl, 4 111. App. 433. 
" Brush V. Fowler, 36 111. 53. 

^ Lehman v. Whittington, 8 111. App, 374; Rice v Brown, 77 111. 
549. 
« Fisher vT Smith, 48 111. 184. 



§ 79i] STEPS NECESSAEY TO E,BCOVER. , 91 

j; 79. What steps necessary to recover under this 
clause. — In an action of forcible entry and detainer, 
brought under the sixth clause of section 2, chapte^r 5T, 
E. S., which provides that when lands have been sold 
under the judgment of anj' court and the party to such 
judgment or decree refuses, aftfer the expiration of the 
time of redemption and after demand in writing, to sur- 
render possession to the person entitled thereto, such 
person may recover the possession b}' an action of forci- 
ble entry and detainer. The person entitled to such suit 
is not requii-ed before commencing his suat to serve upon 
the person in possession a copy of the decree and produce 
and exhibit his deed, as in proceedings to procure a writ 
of assistance. In such cases the person entitled to pos- 
session is required only to comply with the statute — that 
is, to make a -demand in writing before commencing his- 
suit.' 

' Bi-ackensieok v. Vahle et al., 48 111. App. 312. 



92 THE ONLY ISSUE TO BK TEIED. _ [§80. 

CHAPTER V. 
WHO MAY MAINTAIN THE ACTION. 

Section 80. The only issue to be tried. 

81. What possession necessary. 

82. Possession of timber lands. 

83. Who the proper plaintiff. 

84. Cases in illustration. 

85. Grro_wth of the action u.nder the statutes. 

86. Particular cases stated. 

87. Right of exclusive possession requisite. 

The question of title is not involved in the action of 
forcible entry and detainer, it being repeatedly held by 
the Supreme Coui-t,. that "the question of title is not in 
any sense involved in this action." ' 

§ 80. The only issue to be tried In this vie^v, the 

possession and right of possession being the only ques- 
tions to be settled, it necessarily follows, that only he 
who is entitled to the possession of the lands in dispute 
Ccin maintain this action. The questions, therefore, to be 
tried are: Had plaintiff possession of the property in 
question? Has that possession been invaded by the de- 
fendant and wrongfully withheld after such entry? Or, 

' Hardisty v. Glenn, 33 111. 62; Shoudy v. School Directors, etc., 
33 111. 390; McCartney v. McMullen, 38 111. 337; Johnson et al. v. 
Baker, 38 111. 98; Smith v. Hoag, 45 111. 350; Hewitt v. Templeton 
etal., 48 111. 371; Smith v. Hollenback etal.. 51 111. 333; Thompson 
V. Sornberger, 59 111. 336; Doty v. Burdick, 83 III. 473; Wheelan v. 
Fish, 3Bradw. 447; Knight v. Knight et al., 3 Bradw. 206; Spurck 
V. Forsyth, 40 111. 438. 



§ 80. J. THE ONLY ISSUE TO BE TJilED. 93 

in case the entry ^Yas peaceable and rightful, such as that 
of a tenant, has such possession been unlawfully detained 
by the defendant? 

The plaintiff, to recover in this action of forcible entry 
and detainer, must show that he has the right of posses- 
sion of the premises upon which the forcible entry is said 
to have been made; the mere constructive possession, 
such as the fee simple title to the land entered upon draws 
to it, is not sufficient. ' 

These cases, however, will not apply in entries upon 
unoccupied lands under the late statute, in which cases 
actual possession is not necessary to maintain the action. 

So also an entrjr upon the enclosed and cultivated 
portion, under a lease for the whole, and claiiiiing the 
entire tract, is such a possession of the unenclosed por- 
tion of the land as will enable a party to maintain the 
action of forcible entry and detainer against any one who 
may forcibly enter on that portion.'' 

It was also held in the case of McCartney v. McMul- 
len, 38 111. 237, that acts which indicate an assertion of 
■ownership do not constitute such a possession as will sup- 
port this action. 

If the complaining party has actual possession with or 
without title, or such a claim to public lands as is recog- 
nized by our statutes, he can maintain the action against 
any one illegally or forcibly intruding upon such posses- 
sion.' 

Where the plaintiff, finding the premises vacant and 

' Thompson v. Sornberger, 59 111. 326: Smith v. Hollenbaok, 51 111. 
233; MeCartney v. McMuUen, 38 111. 287. 
= Hardisty v. Glenn, 32 111. 63. 
' Whitaker et al. v. Gautier, 8 Glim. 443. 



9-1: WHAT POSSESSION NECESSAKY. [§''^1- 

unoccupied, took peaceable possession of the same, 
claiming to be the owner, and the defendants procured 
the arrest of the plaintiff by a policeman without war- 
rant, and, during her absence at the police station, took 
forcible possession of the premises and removed her 
goods, it was held a good cause of action against the 
parties under the forcible detainer act/ 

In Nicholson et al. r. Walker et al., 4 Bradw. 404, it 
is held by the Appellate Court, that the defendant may 
show the source of his claim to the right of possession ; 
and in the case of Keplcij v. Ltike, 10 Bradw. 403, a 
forcible entry and detainer case, the same court holds 
that, under the facts in that case, the rights of the parties 
can not be determined without deciding which of them 
is the owner in fee. Yet the doctrine enunciated by 
decisions of the Supreme Court in Kepley v. Lnlie, 106 
111. 395, and other cases heretofore cited, is the law on 
this point. 

§ 81. What possession necessary. — The possession 
necessary on the part of the plaintiff to support this 
action is not & pedis possession as actual possession may 
exist by probf of something short of an actual residence 
on the land,' or enclosing it by a fence." 

In Davis v. JEasley, 13 111. 192, it is held that a party, 
having a deed for a tract of land covered with timber, 
and which has been used in support of the farm for an 
uninterrupted period of time, and from which he habitu- 
ally takes firewood, rails and other materials, has such 

' Pratt V. Stone et al., 10 Bradw. 633. 

'' Pearson v. Herr, 53 111 144: Jamison v. Graham, 57 111. 94: Spurck 
V. Forsyth, 40 111. 438. 



§ 83. J POSSESSION OF TIMBER LANDS. 96 

an actual possession as will entitle hira to maintain an 
action of replevin against a party who shall convert 
timber growing on such lands into boards. 

§ 82. Possession of timber lands Actual possession 

of timber lands is defined' and said to consist of such 
acts as the plaintiff repeatedly performed in regard to 
the tract of land. Nothing is clearer than that a fence 
is not indispensable to constitute possession of a tract of 
land ; that it is nothing more than an act presumptive 
of an intention to assert an ownership and possession 
over the property. But there are many other acts 
equally evincive of such an intention — such as entering 
upon land and making improvements thereon, raising a 
crop, felling and selling the trees thereon, under color of 
title, etc. ' 

Thus, where a party claiming a vacant lot, enclosed 
the same, by building a fence so as to join with another 
fence and ' a brick Avail, and thus keep out domestic 
animals, and inform all persons that the premises were 
appropriated, it was held, that this was a sufficient actual 
ppssession to maintain forcible entiy and detainer against 
parties breaking down and destroying the fence in a 
forcible manner, under claim of ownership.^ 

But where a party has been in the possession of land 
for several years, and an adverse claimant enters and 
locks the barn and gate, plows and plants the same., 
which the other party does not .acquiesce in, but resumes 
his .possession, and leases the same to a tenant, the acts 

'Brooks V. Bruyn, 18 111. 539; Pensoneau v. Bertke, 83 111. 161; 
Pearson v. Herr, 53 111. 150; Hassett v. Johnson, 48 111. 69. 
'- Allen V. Tobias et al., 77 111. 169. 



96 WHO THE PEOPER PLAINTIFF. [ § 83. 

of the adverse claimant will not be such a possession, 
unless justified by title, and demand of possession as will 
enable him to maintain forcible entry and detainer 
against the tenant. 

Where it was objected by the defendant in an action 
of forcible entry and detainer, that he was in possession 
of onl)*^ part of the premises, viz., the house and garden 
situated on the tract, it was held that where a defendant 
is thus in possession of the premises, the action will lie 
against him." 

Possession and exerting acts of ownershijJ by a son, 
with whom the mother lived for twenty-eight years, con- 
stitutes such possession in the son as will enable him to 
maintain the action of forcible entry and detainer against 
an intruder." 

The action of forcible entry and detainer is maintain- 
able only where the plaintiff seeks to obtain possession 
of real property." 

The action of forcible detainer can only be maintained 
by one who is entitled to possession.' 

§ 83. Who the proper plaintiff. — Only the person 
entitled to the possession can make the complaint, he 
being the only party whose possession has been injured. 
A- lawful possession must be averred.' 

In general, the person who was deprived of, and who 
has the legal right of possession is the proper person to 
institute the proceedings, in whatever character or capac- 

' Cox V. Cunningham, 77 111. 545. 

-' Rice V. Brown, 77 111. 549. 

= Kassing et al. v. Keohane, 4 111. App. 460. 

' .Mueller v. Newell, 39 111. App. 193. 

" :fcCartae3' v. McMullen, 38 111. 337. 



§ 83.J WHO THE PKOPEK PLAINTIFF^ 97 

ity this possession or right of possession may have been 
held.' 

The devisee or grantee of a lessor, by express statute, 
may maintain an action of forcible detainer in his own 
name." 

The right of action in forcible entry and detainer vests 
at once in the person whose possession has been invaded, 
and this fight must be exercised during his life in his 
own name." 

A part)^ forcibly expelled from the premises of which 
he w^s in peaceable possession may maintain forcible 
entry, even if the expelling party had the right of entry." 

Whoever is in the actual possession of lands, claiming - 
the fee, is presumed to have it, and may maintain an 
action for an invasion o^ his possession against anyone 
but him who has the legal right of possession. ' 

While it is of no importance whether the possession is 
by right or by wrong, nor whether the term of years be 
legal or not, yet a man who was neither in possession 
nor had title at the time the entry was made, cannot, by 
any subsequent purchase, acquire a right to institute this 
proceeding." 

The action will lie, where the proprietor of land 
obtains possession by collusion with the tenant of another 

■Mann v. Brady, 67 111. 95: Rice v. Brown, 77 111. 549; Dudley et 
al. V. Lee, 39 111. 339. 

' Thomasson v. Wilson, 146 111. 384. 

^Dutlley et al. v. Lee, 39 111. 339. 

"Baker v. Hays, 38111. 387. 

? Brooks V. Bruyn, 18 111. 539. 

« State V. Pierson, 3 N. H. 550; Gray v. Gray, 3 Litt. 465; Louis v. 
Stitle, 3 Litt. 394. 



98 CASES IN ILLUSTRATION. [§ 84. 

to recover possession of the premises, and this is true, 
whether he is entitled to retain the possession, or not.' 

§ 84. Cases in illustration — One in peaceable posses- 
sion, if forcibly expelled from the premises, may main- 
tain the action." 

The landlord who becomes entitled to the possession 
of premises by the determination of a lease under an 
arrangement with his tenant, cannot maintain the action 
of forcible entry and detainer for an entry made while 
the tenant was in possession. ° 

A person who has been turned out of his possession 
by a writ issued by virtue of a decree to which he was in 
no sense a party, may proceed by action of forcible entry 
and detainer to recover the possession." 

It is held, that one joint tenaftt or tenant in common 
may maintain forcible entry and detainer against his 
co-tenant, but cannot recover the exclusive possession.^ 

One who is in possession of premises under an agree- 
ment to keep possession of them, together with articles 
of furniture, for the owner, has such an interest as will 
enable him to maintain an action for forcible entry and 
detainer. ° 

The house was occupied as a school-house by the con- 
sent of A., who claimed the right to the possession of the 
land on which it was situated ; before the termination of 
the school, B. took possession of the house, declaring that 

' McCartney v. Hunt et al., 16 111 76. 
« Baker v. Hays, 38 111. 387. 
3 Hays V. Porter, 37 Tex. 93. 
•* Laird v. Winters, 37 Tex. 440. 
'Mason v. Finch, 3 111. (1 Scam.) 495. 
"House V. Camp, 32 Ala. 541. 



§ 85.] GROWTH OF THE ACTION. 99 

if any person attempted to dispossess him he would shoot 
him. Held, that this was a forcible entry and detainer 
and that, if held after the termination of the school, it was 
a forcible detainer of the premises of A. , for which the 
action will lie.' 

§ 85. Growth of the action under statutes A con- 
versance pendente lite by the plaintiff in an action of for- 
cible entry and detainer does not affect his right to 
recover, if at the commencement of the suit he was 
entitled to the possession ; and th^ same result attends in 
change of possession." 

A bird's eye view of the growth of the action in Illi- 
nois can be obtained from the rulings of the Supreme 
Court on the various statutes, the scope of the action 
being enlarged by the successive acts of the Legislature 
from being applicable to two fcases originally to now 
applying to six distinct cases enumerated by our latest 
statutes. 

To maintain the action of forcible entry and detainer 
under the statute, two things must concur : 

1. The possession must be illegally or forcibly taken, 
which constitutes the entry. 

2. The possession must be withheld, which constitutes 
tlie detainer.' 

The statute provides for three cases in which forcible 
entry and detainer may be maintained : 

1. A wrongful entr^^ as contradistinguished from a 
violent one. 

'Van Hook v. Story, 4 Humphries (Tenn.), 59. 
^ Daggitt V. Mensoh et al., 41 111. App. 403. 
'Robinson v. Orummer, 5 Oilman (111.), 218. 



100 (iEOWTH OF THE ACTION. [§85. 

2. A forcible entry, with actual force. 

3. A wrongful holding over.' 

Under the Revised Statutes of Illinois, 1845, forcible 
entrj^ or forcible detainer could be maintained in three 
cases only : First. Where there was a wrongful or 
illegal entry, as contradistinguished from a forcible and 
violent entry. Second. Where the entry is forcible by 
means of actual violence. Third. Where a tenant 
wrongfully holds over after the expiration of the time 
for which the premises have been let to him." 

There are four cases in which forcible entry and 
detainer may bemainta^ined in this State. First. Where 
there has been a wrongful or illegal entry upon the pos- 
session of another. Second. Where there has been a forcible 
entry upon such possession. Third. Where any person 
may be settled upon the public lands within this State when 
the same have not been sold by the general government ; 
and Fourth . When there has been a wrongful holding over 
bj^ a tenant after the expiration of the time for which 
the premises may have been let to ium." 

The act of 1861 (session laws, p. 176) brings within 
the reach of this action two additional cases : First. 
Where a vendee under a contract to purchase has entered 
into possession and, before obtaining a deed, refuses to 
comply with the contract ; and second; where lands have 
been sold under a judgment or decree and the party to 
such judgment or decree, after the expiration of the time 
of redemption, refuses, after demand in writing by the 

' Atkinson v. Lester et al., 3 III. 407. 

« Jacksou V. Warren, 33 111. 331. 

« Whitaker et al. v. Gautier, 8 Gilman (III), 443. 



§ 86.] PAKTICUr.AR CASES STATED. 101 

purchase!' under the same, to surrender possession 
thereof. ' 

One in the lawful possession of property, as a tenant 
by sufferance, or otherwise, has a right of action against 
all persons entering' against his will, or by force." 

§ 86. Particular cases stated. — The owner of certain 
premises having 'leased them to A., who went into pos- 
session, upon the expiration of such lease let the premises 
by a verbal lease to B., who, with the consent of A., 
took possession and proceeded to cultivate the land. A. , 
however, subsequently refused to quit the premises. In 
this case the landlord, having parted with his ri'ght to 
the possession, could not maintain forcible detainer 
against A. to recover the premises; the verbal lease was 
a legal and binding letting of the premises and entitled 
B. to the possession, which he actually obtained with 
the assent of A., and he alone could bring the action.' 

Where a tenant is in the lawful possession of the 
premises, either as tenant by sufferance or otherwise, an 
entry made against his will or by force is unlawful and 
the action of' forcible entry and detainer will lie." 

Thus, where a sub-tenant quit and delivered the key to 
the tenant, who was about to move into' the house when 
the sub-tenant borrowed the key and gave it to the land- 
lord, who thereupon took possession, it was held, that 
the tenant could maintain forcible detainer against the 
landlord." 

'Jackson v. Warren, 33 111. 331. 

2 Knight V. Knight et al., 3 111. App. 206. 

' Gradle v. Warner, 140 Hi. 133. 

^ Knight V. Knight et al., 3 111. App. 306. V 

= Haupt V. Pittaluga, 6 Bush. 493. 



102 EIGHT OF EXCLUSIVE POSSESSION. [§ 87. 

The action may be maintained by a tenant at will, by 
executors and administrators, by receivers and generally 
by any person \vhose possession or right of possession has 
been unlawfully invaded.' 

If the right of immediate possession is in the tenant, 
the action of forcible entry and detainer must be brought 
by him." 

The party entitled to the possession of property having 
abandoned it by allowing fences to be reiTioved without 
repair or keeping them up, this state of case showed an 
abandonment of the premises as strongly as it did a 
retention thereof, and the action of forcible entry and 
detainer could not be sustained." 

§ 87. Right of exclusive possession requisite The 

plaintiff is not entitled to recover in an action of forcible 
enti'y and detainer, unless he has the right of exclusive 
possession. To maintain the action of forcible entry and 
detainer, it is not necessary that the plaintiff should have 
& pedis possefiHio; it is sufficient if the premises are used 
and occupied for some useful purpose ; but if such pos- 
session is joint, as to different pei-sons, neither one would 
be entitled to the exclusive possession.* 

The right of action rests alone in the party entitled to 
the possession, and if the landlord has alienated the 
reversion during the continuance of the lease, then his 
alienee is entitled to tlie possession at its termination and 

' Commonwealth v. Biglow, 3 Pick. (iMass.) 31; Jones v. Shay, 60 
Cal. 508; Beezley v. Burnett, 15 la. 193; Rice v. Brown, 77 111. 549; 
Spear v. Lomax, 43 Ala. 516; Baker v. Cooper, 51 Me. 3^8. 

• Thomasson v. Wilson, 146 111. 384, 

sHassett v. Johnson, 48 111. 68. 

•■ Jamison v. Graham, 57 111. 94. 



§ 87.] EIGHT OF EXCI.USIVE POSSESSION. 103 

must make the deraancl therefor and bring the action to 
recover the possession. "Where A. executes a lease to B. , 
to take effect after a former tenancy had expired, B. was 
entitled to the possession of the premises upon the expira- 
tion of the former lease and must bring suit for their 
possession.' 

The lessee under a new lease may re-claim possession 
of such premises 'and put the old tenant out.^ 

' Ball V. Chadwick et al., 46 111. 28. 
* Webb V. Heyman, 40 111. App. 335. 



104 THE GENERAL RULE. [ ^ ''^''^• 



CHAPTER VI. 
AGAINST WHOM THE ACTION WILL LIE. 

Section 88. The general rule. 

89. What persons included as defendants. 

90. When action will not lie. 

91. .Joint occupants— joint tenants. 

§ 88. The general rule As a general rule, the per- 
son in actual possession of the premises detained, at the 
time of the commencement of the action, is the one 
against whom it should be brought. The right is not 
confined to the disseisor, but may be maintained against 
his representatives and all those in possession under him.' 

A landlord, upon the termination of the tenancy, has 
the right to maintain forcible detainer against the tenant 
or any person in possession by, through or under him, 
who may hold over.'' 

Where the entry into lands and tenements was made 
by a party who did not participate in the act, but such 
act Avas done by others under his direction or by his pro- 
curement, the action would lie against him.' 

The ownef of real estate which is in the peaceable pos- 
session and occupancy of anotlier, though without right, 
cannot enter by force against the will of the tenant and 
expel him without rendering himself liable as a tres- 
passer. ' 

'Jackson v. Warren, 33 111. 331; People v. McAdam, 84 N. Y. 287. 
■2 Thomasson v. Wilson, 146 111. 384. 
^Minturn v. Burr, 20 Cal. 48. 
I ■■ Westcott V. Arbuckle et al. , 12 111. App. o77. 



§^89, 90. J WHAT I'EESONS DEFENDANTS. 105 

Where the person in actual possession of land is a sub- 
tenant, he occupies the place of the tenant and is liable 
to the action." 

Where a tenant has entered into the possession of 
premises peaceably and iti good faith under one who has 
previously made a forcible entry, not being privy to the 
wrongful act of the grantor or having any knowledge of 
it, he is not liable to be turned out by an action of 
forcible entry and detainer." 

§ 89. What persons included as defendants In case 

of a tenant holding over against his landlord, either the 
tenant or any person claiming under him is liable to this 
action." 

Where a tenant in peaceable possession of land under 
an unexpired lease, is forcibly dispossessed by a constable 
under a writ of restitution for different premises, the 
tenant, after demand made in writing, may regain pos- 
session, by the action of forcible entry and detainer. The 
writ of possession for another and different premises 
could not be pleaded in evidence in justification of the 
eviction." 

Where a tenant continues in possession after notice 
imposing new tenns, such holding over after the expira- 
tion of his term in no 'wise changes the relation of the 
parties, and an action will lie for use and occupation 
upon the new terms. ^ 

§ 90. Where the action will not lie The question 

' Reed v. Hawley, 45 111. 40; Bird v. Fannon, 3 Head (Tenn.), 13. 
■' Clark V. Barker, 44 111. 349. 
' Hubner v. Feige, 90 111. 208. 
•< HiggiDS V. Halligan..46 111. 173. 



lOtl WHEBE ACTIO?; WILL NOT LIE. [§90- 

of forcible entry and detainer will not lie to recover an 
incorporeal right, upon which no forcible entry can in 
fact be made. For example : the action will not lie for 
forcibly taking possession of a ferry, with the adjacent ' 
banks and shores of the river, as the ferry is an incorpo- 
real right, upon which no entry can in fact be made; 
nor can a sheriff, under a judgment of restitution, deliver 
possession of a ferry.' 

Nor does the action lie for forcibly entering upon a 
weir, because that is personal property." 

Personal property cannot be recovered in an action qf 
forcible entry and detainer." 

In unlawful detainer by the husband's vendor to recover 
possession of premises contracted for in his name, but as 
trustee for his wife, she is not a necessary part}'.' 

A party cannot divide an entire demand, so as to main- 
tain several actions for its recover}'. "^ 

Courts of laW' will not take cognizance of separate 
causes of action against different parties in the same suit." 

x\n action of forcible entry and detainer cannot be 
maintained against two or more who hold in severalty. 

"Where different tenants have successively paid rent to 
the wrong party, after notice, it is improper to enter a 
decree requiring all of these tenants and the person to 
whom they paid the rent to pay the whole amount, so 

' Rees V. Lawless, 6 Litt. 1^4. 
- Van Arken v. Decker, — Paine, 108. 
'Hoffman V. Reichert et al., 31 111. App. 558. 
■■ Williamson v. Paxton, 18 Gratt. (Va.) 475. 
■ ' LaSalle Co. Mfg. Co. v. The City of Ottawa, 16 111. 418. 
' Casselberry v. Forquer, 37 111. 170. 
■> Revuolds V. Thomas et al., 17 111. 207. 



§91.] .lOINT OCCUPANTS. 107 

wrongfull}' paid, to the party entitled to it. The party 
receiving the rent is liable for the whole amount received, 
but each tenant is only liable for the amount which 
accrued during his tenancy.' 

The Illinois statute is more comprehensive than the 
English act in this, that it authorizes an action against 
a lessee who holds over after the termination of his lease, 
whether he holds by force or not, provided the lessor has 
given him notice to quit. ° 

If the plaintiff has leased the premises to the tenant, 
who is in actual possession at the time of a forcible entr^- 
thereon by another, the plaintiff cannot maintain the 
action, because not entitled to the possession." 

/The action for unlawful detainer of demised premises 
will not lie against a claimant not in possession." 

An action for unlawful detainer of demised premises 
will lie against a city.'' ' 

§ 91. Joint occupants — Joint tenants If the occu- 
pation of premises was joint, as to different persons, 
neither one would be entitled to the exclusive possession. 
It was held in Mason v. Fincli^ 1 Scammon 495, that 
a joint tenant should be entitled to the benefit of this act, 
but it seems that a joint tenant cannot recover the exclusive 
possession and would onl}^ be entitled to a judgment for 
' ' an undivided interest. ' ' The Supreme Court again 
says, that " it is contended, in argument, that one joint 
tenant, who unlawfully and forcibh^ excludes his co- 

' Davenport et al. v. Haynie et al., 30 111. 59. 

- Mason v. Finch, 3 111. 495. 

3 Mann v. Brady, 67 111. 95; Yoder v. Earley, 3 Dana (Ky.), 345. 

^ Preston v. Kehoe, 10 Cal. 445. 

<■ Rains v. Oshkosh, 14 Wis. 373. 



lOS .JOINT OCCl'I'ANTS. | § !•!. 

tenant, is liable in this action. Tiiis principle, if correct, 
is not involved in this case. Ap])ellee seek.s to recover 
the entire premises. Pie claims the use of the whole, 
and not a part of the pasture. If the parties had a joint 
right, this would be inconsistent with the exclusive use, 
by either, without an agreement between them. It 
would be absurd to hold that one joint tenant can deprive 
his co-tenant of all participation in a common right." ' 

' Jamison v. Graham, 57 I 1. 94. 



§ 92.1 KIND OF I'OSSESSKIX NECESSAJIV. 109 



CJHAPTER VII. 
POSSESSION. 

Section 93. The kind of possession necessary for plaintiff. 

93. Pedis possessio unnecessary. 

94. Constructive possession. 

95. Extent of possession. 

96. Judgment for part only. 

97. The demand of possession. 

98. Demand in writing. 

99. The service of demand. 

;:; 92. The kind of possession necessary for plaintiff. 

— Where the plaintiff in an action of forcible entry is in 
the hona ,p'de, peaceable possession of a coal mine in his 
own right, and while so in possession the defendant 
approaclies the plaintiff's emploj'es and induces them to 
surrender possession to him, his possession thus acquired 
is unlawful and can not be maintained.' 

In order to recover in an action of forcible entrj' and 
detainer, the plaintiff mpst prove actual and peaceable 
possession of the premises by him at the time of the 
alleged forcible entry." 

To sustain an actidn of forcible entry and detainer, the 
plaintiff must show that he had actual possession of the 
premises. The mere constructive entry, such as the fee 
simple title draws to it, is not sufficient.'' 

It does not require the actual pedis possessio to support 

' Hoffman v. Reichert et al., 147 111. 274. 
- Mann v. Brady, 67 111. 95. 
^McCartney v. McMullen, 38 111. 237. 



110 KIND OF POSSESSION XECESSAEY. [§92. 

the action of forcible entry and detainer. Actual pos- 
session may exist, as in the case of a wood-lot, unen- 
closed but used as an adjunct to a farm from which the 
latter is supplied with timber, wood and rails. ' 

The plaintiff, .to recover in an action of forcible entry 
and detainer, must show that he had, at the time of the 
alleged entry, the actual possession of the premises; a 
mere constructive possession is not sufficient." 

A person may have had possession of property con- 
structively, while he was never, in fact, on the land, and 
whether he had such possession or not is always a ques- 
tion for the jury." 

In Spurck v. Forsyth, 40 111; 43S, it was held a suffi- 
cient actual possession that the plaintiff, while he did not 
reside on the premises, owned and improved them and 
that they furnished "visible tokens of occupancy, such 
as fences, buildings and cultivation;" showmg the actual 
possession of part of the premises, with the clahn on the 
whole, if the claim is reasonable and hoiia _lide.' 

Keeping goods on the premises was held sufficient." 

The possession necessary in the plaintiff to support the 
action of forcible entry and detainer must be hona fide. 
Where an occupant was driven from his home by high 
water and returned when permitted to do so, such tempo- 
rary absence would not destroy his possession. On the 
other hand, a party attempting to get possession by going 

' Pearson v. Herr, 53 111, 144. 

= Thompson t. Sornberger, 59 111. 326. 

3 Carson et al. v. Crigler, 9 111. App. 88. 

■■ Hardisty v. Glenn, 33 111. 62. 

5 Wall V. Goodenough, 16 111. 415: Baker v. Havs. 28 111. 387. 



§ 93. J PEDIS POSSESSIO UNNECESSARV. Ill 

on the land, plowing one-half day and then departing, 
did not have sufficient possession.' 

The delivery of a key of a house to a person other 
than the landlord, or his heir, will not transfer a right of 
possession to such person, unless he has acquired the 
interest of the landlord or his heirs. ° 

"Where a director and treasurer of a mining corpora- 
tion takes possession of the mine, his possession will be 
that of the company ; and if the corporation obtains 
possession through other officers, he can not maintain 
forcible entry and detainer against the corporation, 
although he may have become the purchaser of the mine 
under a sheriff's sale, if the time for redemption has not 
expired." 

§ 93. Pedis possessio unnecessary. — The legal title or 
fee draws to it the legal possession of land, but where 
a pedis possessio is relied on, it must be open, exclusive 
and public. The acts indicating possession must be such 
as men generally employ in the enjoyment of property, 
and these acts should be continuous, not merely oc- 
casional.* 

Possession continued for a period of over twenty years, 
of a part of a tract of land, and the exercise of acts of 
ownership over the residue, under claim of title to the 
whole, constitutes such a possession as will authorize the 
possessor to maintain the appropriate action against a 
stranger who interferes with his possession or injures the 
inheritance." 

• McHan v. S'tansell, 39 Ga, 197; DeGraw.v. Prior, 60 Mo. 56. 
■' Doty v._ Burdick, 83 111. 473. 
SHoflEma'n v. Reichert et al., 147 111. 374. 
■* Hassett v. Johnson, 48 111. 68. 
' Fairman v. Beal, 14 111. 244. 



112 CONSTRUCTIVE POSSESSIOX. [ § ^4. 

Where a tenant vacates the premises and the landlord 
has possession by placing goods therein, he may maintain 
a proceeding for forcible entry against an intruder witli- 
out making a formal re-entry.' 

§ 94. Constructive possession — Where the owner of 
premises had leased them for one year and, at the expi- 
ration of the term, went to the farm and carried there 
a load of goods, and the tenant carried them upstairs 
into a room and stated that he rendered up possession, 
and the landlord performed some acts preparatory to 
occupying the house and left with the intention of return- 
ing on the following Monday, and had a deed for the 
whole premises, it was held, that this showed a sufficient 
possession of the premises to enable the landlord to main- 
tain forcible entry and detainer against one taking pos- 
session before his return.'' 

A party having purchased a piece of wood-land, 
entered ujjon it, built a log-cabin, made rails and then 
left it for a temporary purpose send was absent two 
weeks, leaving his tools in the cabin, intending to move 
into it in a short time. During his absence, a second 
party, who had rented the same land from another 
claimant, went on to the land, completed the cabin, 
built a fence around it, 'made a door to the house, placed 
some articles of his own into it, locked the door and went 
awaj'.' The first party, on, his return, finding the place 
as the second party had left it, went into the house and 
held possession, A\'hereupon the second party brought an 
action of forcible entry and detainer against him. In 

> WaU V. Goodenough, 16 111. 415. 
« Huftalin v. Misner, 70 111. 305. 



§ 95. J THE EXTENT OF POSSESSION. 113 

this case k was held, that the defendant's acts did not 
show an abandonment of the possession; that his pos- 
session continued during his two weeks' absence and was 
such a possession as to entitle him to hold the premises 
in law, the acts of the second party being trespasses." 

Any use of the premises which shows an intention to 
hold possession for the purpose of cultivation, improve- 
ment or applying them to the uses for which they may 
be fitted, is sufficient. ° 

In California it has been held, that a constructive and 
scrambling possession is not sufficient." 

§, 95. The extent of possession The defendant in 

an action of forcible detainer for a tract of land cannot 
defeat the same by proof that he was in possession of 
only the house and garden situated on the tract;" 

Where a lease of- a' building does not in terms convey 
any right to a passage way to buildings in the rear of 
that leased, or any righf to such buildings in the rear, 
the most that can be claimed is, that the lease conveys so 
much of the lot on which the building stands as may be 
necessary to the complete enjoyment of the leased Tjuild- 
ing for the, purpose for which it is rented. ° 

The possession of a farm draws to it the possession of 
the wood-land belonging to it, though not enclosed, 
especially if repeated and unchallenged acts of ownership 
are shown.' 

' Haley v. Palmer, 9 Dana (Ky.), 320. 

- Bradley v. West, 60 Mo. 59. 

2 Vail V. Butler, 49 Cal. 74. 

^ Rice V. Brown, 77 111. 549. 

5 Patterson et al. v. Graham, 140 111. 531.- 

« Pearson v. Herr, 53 111. 144. 



114 JUDGMENT FOB PART ONLY. [§96. 

A lessee of land bordering on a stream, not navigable, 
at common law is entitled to the accretions thereto caused 
by the receding of the stream, or a change in its current, 
during his term, even though the bank of the stream is 
named as boundary of the demised premises/ 

-It was formerly the law, that the possession, so far as 
extent was concerned, must be proved as alleged in the 
complaint. {Tliom.pson v. Sornberger, 59 111. 326) ; that 
is, suit could not be brought for a certain tract of land 
described in the complaint, and possession recovered of 
any other property than that described. A party could 
not sue for one thing and recover another. Pleadings 
must be reasonably' full and accurate. 

Thus, where the plaintiff claimed the possession of the 
entire house, she could not recover possession, as a tenant 
in common, of either the whole or a part; the court say- 
ing : "To permit such a recovery would violate the 
plainest and most simple rule of pleading evidence and 
practice. How can it be said that, because she has 
shown that she occupied the greater portion of the house 
in common with Eich, by his permission, she had, there- 
fore, the right to the sole and exclusive possession of all 
of that portion? Such a variance is too broad aLnd pal- 
pable to be disregarded. ' ' 

§96. Judgment for part only — "Nor is the aver- 
ment, that the plaintiff was in tlie sole and exclusive pos- 
session of a house, sustained by proof that she was so 
possessed of but two of a number of rooms in the house ; 
such evidence does not tend to sustain the averment in 
the plaint. It establishes a different case from that made 

' Cobb V. Lavalle, 89 111. 331. 



§ 97.] THE DEMAND OF POSSEaSION. 115 

in the pleadings, and so far different that the court, on 
being asked, should have excluded it from the considera- 
tion of the jury ; ' but the statute of Illinois now pro- 
vides, " If it shall appear that the plaintiff is entitled to 
only a part of the premises claimed, the judgment and 
execution shall be for that part only and for costs, and 
for the residue the defendant shall be found not guilty." 

§ 97. The demand of possession — Return — Form 

Seo. 3. The demand required by the preceding section 
may be made by delivering a copy thereof to the tenant, 
or by leaving such a copy with some person above the 
age of twelve years, residing on or being in charge of 
the premises ; or in case no one is in actual possession of 
the premises, then by posting the same on the premises. 
When any such demand is made by an ofificer authorized 
to serve process, his return shall he prijna facie evidence 
of the facts therein stated, and if such demand is made 
by any person not an officer, the return may be sworn 
to by the person serving the same and shall then be 
jprvmafaoie evidence of the facts therein stated. Which 
demand for possession may be in the following form : 

"To : 

I hereby demand immediate possession of the follow- 
ing described premises :" (Describing the same.) 

Which demand shall be signed by the person claiming 
such possession, his attorney or agent. 

Besides notice to terminate the tenancy, another 
notice or a demand for possession is required, which is 
distinct and different from the former notice. The notice 

'Smith V. Killeck, 5 Gilm. 393; Dunne v.- The Trustees, etc., 39 
111. 578. 



116 DEMAND IN WEITING. [§ 98. 

should show clearly, wiio claims to be entitled to the pos- 
session of the premises and who makes the demand, and 
it should be made by the person for whose use the prem- 
ises are demanded, or by his duly authorized agent or 
attorne}'.' 

§ 98. Demand in writing A demand in writing is a 

condition-precedent of plaintiff's right to recover in an. 
action of forcible entry and detainer/ 

In forcible detainer, a party claiming the possession 
must show not only, that he is entitled to possession, but 
that the defendant unlawfully withholds such possession 
after demand made ; and where the plaintiff claimed pos- 
session under a foreclosure sale, it was held that a demand 
should have been made upon the husband and wife, who 
were both parties to the foreclosure proceeding and were 
both in possession of the premises." 

A demand in writing for possession is essential to the 
recoverxr of penalty of double rent for willfully holding 
over after the expiration of the term.' 

It is essential that the demand should be shown to be 
genuine, either signed by the person entitled to posses- 
sion or some one authorized by him, or at least recognized 
by him." 

Demand for possession for the purposes of a suit of 
forcible entry and detainer should be made after the 
expiration of the lease." 

' Doran v. Gillespie, 54 111. 366; Post v. Bohner, 36 N. W. Rep. 
(Neb.) 208; Dimmett v. Appleton, 20 Neb, 208. 
- Lehman v. Whittington, 8 111. App. 374. 
a Wheelan v. Fish, 2 111. App. 447. 
-* Belles .V. Anderson, 38 111. App. 128. 
5 Ball V. Peck, 43 111. 483. 
« Prlckett V. Ritter, 16 111. 96. 



§ 99.] THE SEEVIOE OF DEMAND. 117 

A demand in writing for possession, to be made upon 
the tenant, to authorize an action of forcible detainer 
against him, should be made after the termination of the 
time for which the premises were let ; a demand before 
that time would not avail.' 

In a forcible entry and detainer suit the plaintiff testi- 
fied, that he served the demand for possession of the 
premises on the defendant on a given day, which w'as the 
same day suit was brought. Held, that this proof was 
suiBcient to sustain the finding of service before the suit 
was brought, if any demand was necessary. 

The statute relating to forcible entry and detainer, and 
which requires a demand in writing for possession, does, 
not require the demand to be made within a reasonable 
time or any definite time before the commencement of 
the suit." 

§ 99. The service of demand. — This demand for pos- 
session should be made after the determination of the 
time for which the premises were let ; a demand made 
before that time will not avail. 

There must be proof of service of a written demand 
inade before the commencement of the suit. Ko pre- 
sumption of its being served arises from the fact of its 
being admitted in evidence. 

A demand of possession by the landlord which is served 
by his agent, where the demand itself discloses the fact 
of the agency pf the person serving the same, is sufficient. 

The demand for possession must be made or served by 

' Doran v. Gillespie, 54 111. 366. 

■' Huftalin v. Misner, 70 111. 205; Doran v. Gillespie, 54 111. 366; 
Lehman v. Whittington, 8 111. App. 374; Nixon v, Noble, 70 111. 33; 
» • VennuBi V, Vennum, 56 111. 430, 



118 THE SERVICE OF DEMAND. [§99. 

the plaintiff or by some person authorized by him to 
serve it. 

The supreme court held, in 1867, that " the service of 
the demand" is a fact which must be established, in the 
usual mode of making proof, clearly, according to the 
rules of evidence. The witness making the service 
should be called. Officers, onl^^, are authorized to make 
return of service of process, unless it be in a few cases 
where the law authorized private individuals to make a 
sworn return. The person who served the notice should 
have been called to prove that fact. See § 107." 

In an action of forcible detainer by a purchaser under 
a foreclosure sale, the plaintiff must prove not only a 
demand for possession, but also that the defendant 
neglected or refused to surrender possession after such 
demand.^ 

Before the mortgagees can maintain replevin to recover 
the possession of goods or trover for their value, they 
must have demanded possession of the same before 
bringing the suit, and this demand must be properly 
proven.'' 

' Ball V. Peck, 43 111. 483. 
'' Hersey et al. v. Westover, 11 111. App. 197. 
^Holliday et al. v. Bartholomas et al., 11 111. App. 206; Simons v. 
Jenkins, 76 111. 479; Rev. Stat., ch. 80, §§ 10, 11. 



100.] POSSESSION OF TENANTS. 119 



CHAPTEE VIII. , 

TERMINATION OF. THE TENANCY AND HEREIN OF NOTICE 
TO QUIT AND DEMAND. 

Section 100. Possession of tenants. 

101. Notice — How signed. 

102. Notice — How served. 
lO.S. Agency — How proven> 

104. Pfirol leasing for more than one year. 

105. Delivery of key and the acceptance of premises. 

106. Statutes of 1865 construed. ' 

107. How demand should be made. 

108. Yearly tenancy — Notice. 

109. When demand made. 

110. When lease expires. 

§ 100. Possession of tenants Tenants obtain pos- 
session by virtue of a lease, and can remain in possession, 
lawfully, only during the continuance of that lease. 

Leases expire by their own limitation, or they may be 
forfeited in various ways particularly set forth in the 
lease, and may also be forfeited in other ways, such as 
attorning to a stranger, denying the title of the landlord, 
etc. 

"Where a lease expires by its own limitation, the ten- 
ancy is ipso facto .ended, and the right of possession 
reverts instantaneously to the landlord ; and in this ca!se 
no notice to quit is necessary, because all parties to the 
lease have full notice of its provisions.' 

But where a landlord elects to terminate tlie lease for 

, 'Rev. Stat., oh. 80, sec. 12. 



120 POSSESSION ^F TENANTS. [§100. 

a breach of covenants, he must give the tenant notice. ' 

And where the tenancy is for an indefinite period, a' 
reasonable notice to quit is necessary to terminate the 
tenancy. And it seems, that where a notice is required, 
it must be given a due length of time befo^-e the expira- 
tion of the tenancy, and terminate with a regular period 
in the tenancy, that is, at the end of a year, quarter or 
month, according to the party's right to terminate it by 
notice. . Where default is made in the terms of the lease, 
the statute definitely fixes the time that notice is required 
to be given to terminate the tenancy. 

The Kevised Statutes, chap. 80, sec. 9, provides as 
follows : 

"When default is made in any of the terras of the 
lease, it shall not be necessary to give more than ten 
days' notice to quit, or of the termination of such ten- 
ancy, and the same may be terminated on giving such 
notice to quit at any time after such default in any of 
the terms of the lease, and no other notice or demand, of 
possession or termination shall be necessary." 

And in case of a tenancy from year to year, the same 
statute, sec. 5, provides; "In all cases of tenancy from 
year to year, sixty days' notice in writing shall be suffi- 
cient' to terminate the tenancy at the end of the year, 
the notice to be given anj"- time within four months pre- 
ceding the last sixty days of the year." 

In case of tenancy by the month, it is provided by 
statute that, "in all cases of tenancy by the month, or 
for any other term less than one year, where the tenant 
holds over without any special agreement, the landlord 

• Ball V. Peck, 43 111. 482; Rev. Stat., chap. 80, sec. 9. 



§ 101.] NOTICE HOW SIGNED. 121 

shall have the right to terminate the tenancy by thirty 
days' notice in writing, and to maintain the action of 
forcible entry and detainer or ejectment." ' 

Where premises were demised by parol for one year at 
a stipulated rent, payable monthly, and the tenants paid 
the rent as it accrued, up to November, 1870, the lease 
being void by force of the statute of frauds, they became 
tenants from month to month, and were entitled to a 
month's notice to quit. ' 

The Demand and Notice to Quit. 

In Ballanoe et al. v. Fqrtier et al.., 3 Gilm. 294, it 
appears that a demand for possession made in general 
terms is sufficient. It must be a demand in writing for 
the possession of the premises, describing them with cer- 
tainty. And where a party was notified "to quit and 
deliver up possession," it was held sufficient, the court 
saying: '-The demand contains more than is necessary, 
but this will not vitiate. It requires the party in posses- 
sion ' to quit and deliver up possession.' This is a full 
compliance with the statute, which requires a ' demand 
in writing. ' " " 

§ 101. Notice — How signed — This notice to (pit 
should be signed by the landlord or his agent, and, if 
signed by the agent, the notice must discover the agency, 
which must afterward be proved on the trial. Where a 
notice says, " John Doe by Joseph Smith, his authorized 

' Rev.. Stat. , chap. 80, sec. 6. 

-Arch. Landlord and Tenant, 66; 4 Kent's Comm. Ill, 1)3; 24 
Maine, 287; 11 Wend. 610; Prickett v. Ritter, 16 111. 97. 
' Vennum v. Vennum, 56 111. 434. 



122 HOW noticp: skeved. [§102. 

agent, hereby demands, " etc., and then is signed, " John 
Doe by Joseph Smith, his agent," it is sufficient. 

So a demand pf possession, which is served by the 
landlord's agent, and which demand itself discloses the 
fact of the agency of the -person serving the same, is 
sufficient. ' 

A copy of the notice to quit should be left with the 
occupant. A demand by reading to the tenant is not a 
demand in writing; the statute contemplates a written 
demand which the tenant can examine.^ 

It is sufficient service of a notice to quit, if a copy 
thereof is delivered to the wife of the tenant.^ 

A return, that there was no one in actual possession 
and the fact that notice was posted on the premises, 
being shown by affidavit, constitute compliance with sec. 
10, chap. 80, Eevised Statutes.' 

It was never intended by the statute to enable a land- 
lord, in case his tenant was temporarily from home, to 
leave a notice on the premises and turn his family into 
the streets in his absence. In 21 111. p. 192, the court 
held, that reading the notice to the tenant was not 
sufficient." 

§ 102. How notice served A copy of a nptice to 

quit should be left with the occupant. Reading the same 
to defendant is insufficient." 

' Ball V. Peck, 43 III. 482; Nixon v. Noble, 70 111 33. 
•Seem v. McLees, 24 111. 192; Lehman v. Whittington, 8 Bradw 
374. 

'Bell V. Bruhn, 30 111. App. 300. 

^^Consolidated Coal Co. of St. Louis v. Hohaefer, 31 111. App. 36i 

'Doran v. Gillespie, 54 111. 366. 

'Seem v. McLees, 24 111. 192. 



S 103.7 AGENCY HOW PROVEN. 123 

A notice by a landlord to terminate the tenancy for a 
breach of certain conditions in the lease may be served 
by posting a copy thereof upon the door of a building on 
the demised premises when the tenant has abandoned the 
actual possession, and the fact that the notice may speak 
of the premises as " the premises now occupied by you," 
will not void the notice.' 

A notice to quit, signed " Cyrus M. Hawley, by Wm. 
C. Proudy, an authorized agent," is substantially good, 
but should have been " his authorized agent." " 

The act of 1S61, prescribing what notice shall be given 
a tenant in order to terminate the lease, has reference 
only to cases where a tenant holds over after his tenn 
is ended and does not contemplate a tenancy 'at Avill. ^ 

The common law required a half year's notice to ter- 
minate a tenancy from year to year." 

Under the act of 1861, all tenancies less than one year 
and greater than one month, and a tenancy by the 
month, require thirty days' notice to terminate them. 
Thirtj' days' notice to terminate tenancies less than one 
month is not required.^ 

A landlord may terminate a lease for non-payment of 
rent by giving the notice presbribed in section 9 of the 
Landlord and Tenant Act, as well as by pursuing the 
remedy prescribed in section 8.' ' 

§ 103. Agency- — How proven. — A notice to quit 

' Consolidated Coal Co. of St. Louis v. Sohaefer, 135 111. 310. 

* Dunne v. Trustees of ScKools, 39 111. 578. 

' Reed v. Hawley, 45 111. 40. 

< Walker et al. v. Ellis, 13 HI. 4^0. 

« Dunne v. Trustees of Schools, 39 111. 578. 

« Dickenson v. Petrje, 38 111. App. 155, 



124 PAROL LEASING. [§104. 

should be signed by the landlord or a properly authorized 
agent, and to authorize a recovery in forcible detainer, 
this must be proved. This cannot be done by producing 
a copy with an affidavit of the service ; the witness serv- 
ing it should be produced to prove the service." 

A notice to terminate a tenancy for non-payment of 
rent is not defective because it fails to mention any time 
for the payment of rent due, and it will be good- even if 
it misdescribes the number of the lot, when it is apparent 
, that it is right as to rent and lease intended, and proof is 
made, without objection, that the lot leased and the one 
named in the notice are the same." 

An attorney in fact, by another acting for him, may 
serve a notice upon a party in possession as a foundation 
for the action of forcible entry and detainer." 

To terminate a tenancy by the month or week, a notice 
for a like time is requisite, which should be fixed by the 
rent day.* 

AVhere a tenant holds from month to month, he is 
entitled to a month's notice to quit before an action of 
forcible detainer' will lie against him.' 

§ 104. Parol leasing for more than one year. — 

Under a verbal lease of premises for five years at a 
monthly rent, it is leasing from month to month and the 
lessee is entitled to thirty days notice to terminate the 
tenancy." 

' BaU V. Peck, 43 111. 483; Vennum v. Vennum, 56 111. 430. 

^ Farnam v. Hohman, 90 111. 313. 

» Eldrldge v. Holway, 18 111. 445. 

< Prickett v. Ritter, 16 111, 96. 

' Seem v. McLees, 34 111. 192. 

• Creighton v. Sanders, 89 111. 543. 



§ 105.] nEI.IVEKV OF KEY. ' 125 

In case of a tenancy at will, a notice of its termination 
is competent evidence, on the trial of an action of forcible 
detainer,' to recover possession by the landlord. ' 

A tenancy at will is terminated bv a demand of pos- 
session, without any notice to quit.' 

The tenancy from year to year, although commenced 
under a parol agreement, can only be determined by the 
statutory notice of sixty days in writing.'' 

Whefe there is an occupation and tenancy under an 
agreement for the payment of rent monthly, a lessee 
becomes a tenant from month to month and entitled to 
thirty days' notice to quit, and if he desires to terminate 
tlie tenancy, he must give the landlord a like notice; the 
rights of the parties in this respect are equal.* 

If a tenant remains in the premises after the determi- 
nation of his lease by the death of the lessor, and the 
owner acquiesces in such holding, over, the owner can 
recover the reasonable value for the use and occupation 
of the premises from the time the lease was terminated 
by the death of the lessor." 

Where Iknd is occupied under a lease for a fixed time, 
the tenant is bound to surrender possession at the end of 
the time, without any notice to quit or demand of pos- 
session." 

§ 105. Delivery of key and acceptance of premises. 

— If a lessee of rooms, before the expiration of the term, 

' Reynolds v. Gage, 91 111 135. 
' - Dunne v. Trustees of Schools, 39 111. 578. 
3 Tanton v. VanAlstine, 24 111. App. 405. 
^ 'Hoagland et al.' v. Crum, 113 111. 365. 
' Schreiber et al. v. Chicago & Evanston R. R. Co., 115 111. 340. 



126 UELIVERY OF KEY. [§105. 

abandons the premises, delivers the key to the lessor's 
agent and notifies the lessor of the fact by letteir, and 
the lessor makes no objection, but retains the key, this 
will be sufficient evidence to authorize a jury in finding 
a termination of the tenanc}'.' 

The execution of a new lease, with the tenant's con- 
sent, to another person who enters thereunder and pays 
rent, will amount to a surrender. There may be a parol 
surrender of a written lease ; there may be a surrender by 
an abandonment of the premises by the tenant and an 
entry thereon by the landlord." 

Delivery of key and part payment of rent after 
suit brought, nothing being said about the settlement of 
the suit or the discharge of the action — held : that this 
did not terminate the plaintiff's right of action.' 

All terms of leasing, like other contracts, expire by 
their own limitation, requiring no notice from either 
party to terminate." 

But vrhere the action is brought by a landlord against 
a tenant, a notice is usually necessary to terminate the 
tenancy. Thus an action cannot be maintained against 
a tenant at will until his estate has been duly terminated 
by notice to quit.' / 

Where the parties cannot be considered as landlord 
and tenant and where the possession was obtained illegally, 
no notice to quit or demand for possession is neces- 
sary." 

' Dills V. Stobie et al., 81 lU. 302. 

■^ Williams v. Vanderbilt, 145 111. 338. 

'Patterson et al. v. Graham, 140 111. 531. 

< Fort V. McGrath, 7 111. App. 302. 

' Seem v. McLeesj 34 ftl. 193; Prickett v. Ritter, 16 111, 96. 

«Kilburn v. Ritchiei 3 Cal. 145; Thorn v. Reed, 1 Ark. 480. 



§ 106. J STATUTE CONSTRUED. l27 

No notice to ([uit is necessary where a tenant or sub- 
tenant is holding over.' 

Where a party makes an illegal and forcible entry 
upon land in the possession of another, no notice or 
demand for possession by the latter before bringing 
forcible entry and detainer is necessary. ° 

When there is a tenancy for a pe!riod of more than one 
year, no notice to the tenant is required in order to 
entitle the landlord to possession upon the expiration of 
the first term.'' 

A notice to quit is not necessary unless the relation of 
landlord and tenant exists, and where the tenant repudi- 
ates the tenancy and claims title in fee simple, he dis- 
penses with the necessity of notice to quit.'' 

§ 106. Statute of 1865 construed Statute 1865, 

107, par. 2, contemplates two notices, one to quit and 
the other of the landlord's intention to declare and insist 
upon a forfeiture. The legislature thereby intended to 
give the tenant ten days* notice, within which he might 
pay the arrears of rent and thus prevent a forfeiture ; 
on their expiration without the payment of the arrears 
of rent, the tenancy terminates and the landlord may * 
then bring suit and recover possession. 

Under the statute of 1865,\when a ten days' notice to 
terminate, on account of a failure to comply with the 
covenants of the lease, is given and the ten days expire 
after the notice and demand without the payment of 

' Frank v. Taubman, 31 111. App. 592. 
"- Stillman v. Palis, 134 111. 533. 
3 Walker et al. v. Ellis, 13 111. 470. 
■•HerreU et al. v. Sizeland et al , 81 III. 457. 



J 3s STATUTE COXSTEUED. [§106. 

rent in arrears, the tenancy is terminated and the land- 
lord may sue to recover possession. 

It was the intention of the legislature to give the ten- 
ant ten days' notice within which' he might pay the 
arrears of rent and thus prevent a forfeiture. ' 

As regards the time when the demand must be made, 
it should be made after the termination of the tenancy. 
Our Supreme Court says, in relation to the demand in 
writing for the possession of the premises, under the act 
in relation to forcible entry and detainer : ' ' We are of 
the opinion that the demand should be made after the 
detei'mination of the time for which such lands and 
tenements were let; such is obviously the mean- 
ing of the statute. ' Reason and analogy sustain 
this interpretation. No one should be put in the 
wrong by a demand which another had no right to 
make, of a thing he had no right to recoyer or possess. 
Could a bailee be charged with a conversion by a demand 
of the pledge before a tender of his advances, or the 
determination of his special title or right of possession?" ^ 

Again, whei'e no notice to quit, as required by law, 
was given it was held, that the tenancy continued when 
suit was commenced. It was held, that, where a person 
entered into ]3oss6ssion of land, with, the permission of 
the owner, as a. mere occupant without paying rent, and 
made improvements, and afterward sold his improve- 
ments to another person, who went into possession, and 
the owner sold the land and his grantee brought eject- 

' Chad wick v. Parker, 44 111. 336. 

sprickett v, Ritter, 16 111. 98; 18 111. 75; Doran v. GiUespie, 54 111. 
366. 



I 106. J STATUTE CONSTEUED. 129 

ment, the person purchasing the improvements of the 
mere occupant must have notice to quit, and this after 
eighteen years' possession. 

And again, a tenant or occupant having no specific 
agreement for possession, if not in temporarily, is entitled 
to notice to quit. In short, where a tenant enters into 
possession, with the consent of the owner, he is not a 
wrong-doer, and can not be a wrong-doer until requested 
by demand to surrender -possession, and refuses so to do.' 

Under the former statute requiring the c(jnplaint to 
show that the necessary demand was made, it was held 
as to a complaint in a case, that it wholly failed to show 
that the notice in writing therein mentioned was served 
even in the manner stated, after the determination of the 
time for which the premises were let ; nor did it show 
that it contained any such demand of possession as that 
required by the statute.' 

This seems to establish the rule that demand for posses- 
sion must be made after the termination or expiration of 
the lease. 

And where possession of lands has been acquired by 
the assent of the owner, and has been long continued, 
the holding of possession may not be wrongful, until 
demand therefor has been made."" 

And the purchaser of real estate at sheriff's sale can 
not maintain an action of forcible detainer after receiving 
a deed, without first making a demand for possession." 

'Chicago, Burlington & Quincy R. R. v. The President, etc., of 
Knox College, 34 111. 303. 
'Doran v. Gillespie, 54 111. 366. 
'Murphy v. Williamson, 85 111. 149. 
■■ Dickason v Dawson, 85 111 53. 



130 HOW DEMAND SHALL BE MADE. [§ 107. 

As regards the time that demand must be made, before 
the commencement of suit, the statute has been construed 
as follows : The statute does not require the demand to 
be made a reasonable time, or any definite time, before 
the commencement of the suit.' 

§ 107. How demand shall be made — As to how 
demand shall be made, the statute (chap. 80, sec. 10) 
says : " Any demand may be made or notice served by 
delivering a written or printed,^ or partly written and 
printed, copy thereof to the tenant, or by leaving the 
same with some person above the age of twelve years, 
residing on or in possession of said premises ; and in case 
no one is in actual possession of said premises, then by 
posting the same on the premises. And the return of an 
officer authorized to serve process, or the affidavit of 
another person serving the same, is prima facie evidence 
of service." 

Again, a lease may he terminated b}^ acts of the 
parties, without either a written or verbal agreement 
to that effect. In case the owner of lands and tene- 
ments exercises acts of ownership, inconsistent with 
the existence of the tenancy, as in case he should 
make a lease of the land to another, to commence 
immediately, or if he enters upon the land and cuts 
timber, or does any other act showing his determina- 
tion to consider the tenancy at an end, he can not after- 
ward be allowed to hold the tenancy in existence as 
against the tenant. And, on the other hand, the tenant 
may also, by his acts, terminate the tenancy so that he 
is estopped from claiming the relation of landlord and 

1 Huftalin v. Misner, 70 111. 305. 



§ 108.]' YEARLY TENANCY NOTICE. 1.31 

tenant in existence. - In case a tenant should desert the 
premises, attorn to another as landlord, claim to holl:l 
possession by virtue of a title hostile to that of the land- 
lord, and do any other act inconsistent with the ten- 
anqy, he will be considered, in all proceedings by the 
landlord, to have thereby terminated the tenancj^ exist- 
ing between them." 

§ 108. Yearly tenancy — Notice.— pBut where the ten- 
ant* holds from year to year, and where he holds to the 
end of a term of years, and continues in possession b^' 
consent of the landlord, the law will imply, in the 
absence of any express agreement, that he holds the 
premises upon the terms of the former lease, and the 
parties impliedly rene,w the previous agreement for 
another year ; and it is necessary, if eithcfr landlord or 
tenant desires to terminate the tenancy, to notify the 
other party to the contract of his intention to put an 
end to the tenancy. The notice to terminate a yearlj' 
tenancy should be given as hei'einbefore (page 120) stated, 
and may "he given to quit on a particular day named in 
the notice or it may be given in general terms at the end 
of the current year of the tenancy, which will expir,e 
next after the end of sixty days from the service of the 
notice. In case the written lease is not accessible, and 
the landlord is not certain on what ^ay the lease termi- 
nates, then the general terms should invariably be used, 
and if the exact day is known, the use of the general 
terms obviates the misapprehension of the exact day on 
the part of the tenant. ■ 

1 Dills V. Stobie, 81 111. 302; Stewart v. Munford, 91 111. 58; Taylor's 
Landlord and Tenant, sec. 466. 



132 YEARLY TENANCY NOTICE. [.§ 108. 

But in case a particular day is named, and no general 
terras, as to the end of the tenancy, are used in the 
notice, the day mentioned must correspond withthe day 
of the commencement, and not the day of the ending of 
the tenancy ; for the tenant is not obliged to quit so long 
as his right continues, and his right is not determined 
until the year is fully ended. The day named must be 
the anniversar}'' day of the commencement of the lease, 
so that a lease running from the 1st day of May, 1885, 
"for, during and until" the 30th day of April, 1886, 
can be ended by a notice to quit and give up possession 
on the 1st day of May, 1886. 

A lease for a definite term of 'years expires by its own 
limitation at the last moment of the anniversary of the 
day from whjch the-tenant was to hold, in the last year 
of the tenancy.' 

And if the tenancj' is for one year, it cannot be termi- 
nated during the year, but only at the end of the year, as 
neither party has a right to put an end to the tenancy 
before the expiration of the year ; and if the occupation 
goes beyond that period, by the express or implied con- 
sent of the parties, and a new year is entered upon, the 
right to enjoy the whole year is implied by law. But if 
the holding over by the tenant is merely temporary or 
unavoidable, such as dangerous sickness in the tenant's 
family, and no acts of the parties indicate an intention to 
continue the lease, the implication of a continuance Of the 
tenancy will not be raised, so that the holding over by 
the tenant must be continued for such a length of time 
after the expiration of the term as will reasonably war- 

' Aoklancl v. Sutley, 9 Ad. & El. 879; Higgins v. Halligan, 46 111. 173. 



§ 109. J WHEN DEMAND MADE. 133 

rant the implication of an assent on the part of the land- 
lord to such continuance, before the landlord can be 
bound thereby, and to make it necessary to give the ten- 
ant a notice to quit before commencing proceedings in 
forcible entry and detainer.' 

Where a tenant for a year or years holds over after 
the expiration of his lease, without having made any new 
arrangement with his landlord under which such holding- 
over takes place, the landlord, at his election, may treat 
the tenant as a trespasser, or as a tenant for another 
year, upon the same terms as in the original lease, and this 
though the tenant has no intention of holdin;^ over l^or a 
year, or of paying the same rent, the law flxiftg the 
liability of the tenant for holding over, independent of 
his intention ; and the legal presumption of a renewal 
from the holding over can not be rebutted by proof of a 
contrary intention on the part of the tenant alone — such 
a holding over will bind the tenant if the landlord so 
elects, unless such holding oyer is excused in law by 
some fact showing that the holding was unavoidable and 
giving up the premises impossible. The legal presump- 
tion of a renewal of the tenancy, ai-ising from a holding- 
over, may always be rebutted by proof of a different 
intention on the part of both landlord and tenant, but 
this intention must be participated in by both of them. 

§ 109. When demand made The demand should be 

made after the termination of the tenancy, in case of 
landlord and tenant, and must be served by delivering a 
copy thereof to the tenant, or by leaving such copy with 
some person above the age of twelve years, residing on 

' Taylor Landlord & Ten. sec. 467 et seq. 



134 WHEN LEASE EXPIEES. [§110. 

or being in charge of the premises ; or in case no one is 
, in actual possession of the premises, then by posting the 
same on the premises. When such demand is made by 
an oiHcer authorized to serve process, his return shall be 
frima facie evidence of the facts therein stated ; and if 
such demand is made by any person not an officer, the 
return may be sworn to by the person making the 
same, and shall then he jjrima facie evidence -of the facts 
therein stated. Formerly an individual could not make 
a return of service, but it was necessary to call him on 
the trial to prove the service,' as stated in sec. 99. 

Again, Where it was necessarj' to prove the termina- 
tion of the tenancy, it is competent on the trial to admit 
the notice and demand made by the landlord as evidence 
of the termination of the tenancy, both as against the 
tenant or a sub-tenant to whom the tenant inay have 
sub-let. This was so held on the trial of an action of 
forcible entry and detainer to recover possession by the 
landlord following the termination of a tenancy at will." 

§ 110. When lease expires Where a lease fixes the ' 

time for the explication of the term and provided that the 
tenant shall restore possession of the demised premises, 
the duty of the tenant to yield up the possession Avill not 
be dependent upon a demand for possession or upon any 
proceeding to be taken or thing done by the landlord.' 

'Ball V. Peck, 43 111. 483; Venniun v. Vennum, o% 111. 430. 
■ Reynolds v. Gage, 91 111. IS.'). 
^Poppers V. Meagher, 14S 111. 193. 



§ 111. J JUEISDICTION OEIGINALLY. 185 

CHAPTEE IX. 

JURISDICTION. 

Section 111. Jurisdiction originally. 

112. What necessary to give jurisdiction. 

113. The venue. 

114. In justice courts. 

115. In circuit courts. 

116. In various states. 

§ 111. Jurisdiction originally. — Originally, in the 
> State of Illinois, justices of the peace had original and 
exclusive jurisdiction in cases of forcible entry and 
detainer; and so we find it decided in Ginn et al. v. 
Rogers, 4 Gilm. 131, that the county court has not 
original jurisdiction in ^these cases, nor has the circuit 
court; and, that the circuit, court could obtain jurisdiction 
only by appeal from the judgment of a justice of the 
peace, in whom it was exclusively vested. 

But it is otherwise now, as the statute on the question 
of jurisdiction provides that, "on complaint in writing 
by the party or parties entitled to the possession of such 
premises, being filed in any court of record, or with any 
justice of the peace, summons shall issue," etc.— so that 
neither courts of record nor justice courts have exclusive 
jurisdiction, but both . have original jurisdiction in such 
cases, and an appeal may be taken from either to the 
higher courts. 

Consent of parties can not confer jurisdiction upon a 
court in which the law has not vested it. ' 
. ' Ginn et al. v. Rogers, 4 Gilm. 131. 



136 XECESSAEY TO GIVE JURISDICTION. [§112. 

When the reiation of landlord and tenant is set up to 
give the court jurisdiction, the petition should show that 
the defendants entered into the premises under a lease, 
or by the assent of the plaintiff, or some circumstance 
from which it can be presumed that the relation of land- 
lord and tenant exists.' 

Prior to the act of 1861, there must have been either 
a forcible entry, or the relation of landlord and tenant 
must have existed, before a justice could take jurisdiction 
in this action.'' 

§ 112. What necessary to give jurisdiction. — In 

order to give a court jurisdiction in forcible entry and 
detainer between vendor and vendee, under the statute 
all of these three elements must be shown — 

First — The relation of vend•^ and vendee must exist. 

Second — The vendee must have obtained possession of 
the land under the contract. 

Thii'd— The vendee must have failed or refused to com- 
ply with his contract of purchase before obtaining a deed 
of conveyance. 

If either of these elements is wanting, the court has 
no jurisdiction." 

The title is not involved in an action of forcible entry and 
detainer, a writ of error does not . lie from the Supreme 
Court to the trial court to review the proceedings — such 
writ should emanate from the appellate court." 

If the description of the premises in the complaint is 

' Beel V. Pierce, 11 111. 93. 

■^Steiner v. Priddy, 28 111. 179; Jackson >-. Warren, 32 111. 331. 

» HaskJns v. Haskins, 67 111. 446. 

"Kepley v. Luke,'106 111. 395. 



t.*' 



§ 113.] . , THE VENUE. 137 

SO defective that the land can not be certainly located, 
the court does not obtain jurisdiction ; nor would a judg- 
ment be effective, if rendered on a complaint wherein 
the premises, are so defectively described.' 

Thus, a description of " about fifteen acres, a pai^t of 
a tract of one hundred and sixtj^ acres," not showing- 
which part of the one himdred and sixty acres, is too 
uncertain. ° 

Under the law requiring the complaint to be in .writing 
under oath, the same could not be made verbally under 
oath and the justice thereupon issue.summons. 

The statute of forcible entry and detainer confers new 
rights and prescribes a remed}' unknown to the common , 
law and must be strictly pursued.' 

In forcible entry and detainer cases, the statute con- 
ferring jurisdiction must be strictly pursued in the method* 
of procedure prescribed by the statute.' 

§ 113. The venue. — Generally, the action may be 
brought in any township in the county wherein the prem- 
ises in question are situated.' 

A process in forcible entry and detainer may issue to 
and be served in the county where the defendant resides, 
though different from that wliere the land is located. 

However, in some States the venue seems to be gov- 
erned by the residence of the parties and not by the 

> SchaumtoeflEel v. Belm, 77 111. 569. 
•-'Beel V. Pierce, 11 111. 93. 
' Murns et al. v. Nash, 33 111. App. 553. 
■* Wilber v. French, 37 111. App. 76. 

"Murphy v. Lucas, 3 O. 355; Billings v. Chapin, 3 111. App.. 555; 
Boxley v. Collins, 4 Blackf. (Ind.) 330. 



138 THE VENUE. [§113. 

locality of the land, and the action is brought in the 
county and town where the parties reside.' 

The jurisdiction in actions of forcible entry and 
detainer has been conferred by the statute upon the 
justices of the peace in the State of Illinois.'' 

In forcible detainer before a justice, the complaint is 
jurisdictional, and if the justice has no jurisdiction of the ' 
case, the Court of Appeals has none.' 

In order to give a justice of the peace jurisdiction of 
an action of forcible entry and detainer, the complaint 
must contain sufficient allegations to bring it within one 
of the several cases anticipated by the statute." 

Th6 filing of an affidavit preliminary to a summons in 
an action of forcible entry and detainer is essential to 
give the justice jurisdiction of the subject matter. The 
complaint cannot be made verbally, nor can a justice 
acquire jurisdiction by allowing an affidavit to be filed on 
the day of the trial,, The affidavit is the jurisdictional 
foundation for the entire proceeding and must precede 
the summons." 

In actions of forcible detainer, a demand for posses- 
sion is required to be made upon the tenant before the 
commencement of the suit. A complaint in writing 
must be made before the summons issues. Service of 
smnjnons must be made in a manner different from any 
other actions at law, and no writ of restitution shall be 
issued until the expiration of five days after judgment. 

' Billings V. Chapin, 3 III. App. 555. 

-Ginn etal. v. Rogers, 9111. 131; Haskinset al. v. Haskins, 67111.446. 

3 Abbott V. Kmse, 37 111. App. 549. 

■■Ballance v. Curtenius et al, 3 Gilman (111.) 449. 

5 Stolberg v. Ohnmaclit, 50 111. 442. 



§§ 114, 115.] IN jusTicj; (jouETS. 139 

These provisions cannot be changed by the contract of 
the parties.' 

§ 114. In justice courts A justice has jurisdiction 

of the action of forcible entry and detainer, by a landlord 
against his tenant without regard to the amount of rent 
reserved in the lease. The right to possession alone is 
in question." 

The limitation of the jurisdiction of justices of the 
peace in civil cases to actions where the amount in dis- 
pute does not exceed $200, does not apply to forcible 
entry and detainer.' The County and Circuit Court have 
no original jurisdiction in forcible entry and detainer 
cases. They can only obtain jurisdiction by way of an 
appeal from a justice of the peace." This has since been 
changed by statute. (See § 111, ante.) 

Unless, in such case, it is made to appear, that a com- 
plaint was filed with the justice and that that complaint 
was brought into the court, appealed to, and if lost, that 
its loss has been supplied, the case must be dismissed." 

§'115. lu circuit' courts — The circuit and superior 
courts, under the statutes of forcible entry and detainer, 
are clothed with special statutory and extraordinary 
power and stand upon the same ground and are governed 
by the same rules as courts of limited and inferior juris- 
diction. Xothing, in such case, is within the jurisdiction 

' French v. Wilier, 136 III. 611. 
- Hannigan v. Mossier et al., 44 111. App. 117. 

8 Hard v. Moon, 6 Cal. 161; Silvey v. Simmer, 61 Mo. 253; Weston , 
V. Haley, 27 Vt. 283; Divell v. Brinkerhoff, 22 Mich. 371. 
•* Ginn et al. v. Eoge'rs, 4 Gilman (111.), 131. 
"Abbott V. Kruse, 37 111. App. 549. 



140 IX CIECUIT COURTS. [§ll;j. 

of the court but what expressly so appears upon the face 
of the proceedings.' 

But justices of the peace have no jurisdiction where 
the title to real property comes into question, and where 
a justice exercises his jurisdiction in this regard, he 
becomes a trespasser." 

Where a complaint in writing in a forcible detainer 
suit is transmitted, with the papers on appeal from a jus- 
tice of the peace and the justice's transcript shows that 
a complaint was filed, this will be sufficient to give the 
court jurisdiction, there being no law requiring a justice 
of the peace to mai'k the papers filed in a case before him." 

The court says, that in this' case the defendant in the 
court be^ow was in possession of the land ; he asserted 
ownership in fee by certain conveyances, which are in 
evidence. Manifestly, then, if the deeds held by the 
appellant are good, — <,ind that is the sole question, — the 
title in fee has been transferred from the appellee to the 
appellant; we think, therefore, a freehold is involved 
and that we have no jurisdiction. Ordinarih', this form 
of actipn does not involve the title, 'but in such a case as 
this, the rights of the parties cannot be determined with- 
out testifying which of them is the owner of the fee, 
and where such is the case, we think the form of action 
is immaterial." 

It seems that in Georgia a justice of the peace of one 
county may administer the oath and issue the Avarrant 

' Burns v. Nash, 2'i 111. App. 553. 
- Hasklns et al. v. Haskins, 67 111, 446. 
'Reynolds v. Gage, 91 III. 135. 
' Kepley v. Luke, 10 111. App. 403. 



§ 116. J IX VAKIOUS STATES., 141 

necessary to dispossess a tenant holding over in another 
county.' 

§ 116. In variouS'States.^In the States of Alabama, 
California, Kentucky and other States, justices of the 
peace alone have original jurisdiction in these cases." 

In Illinois, Indiana, Nevada, Tennessee, West Virginia 
and some other States, the higher courts have concurrent 
jurisdiction with the justices of the peace in forcible 
entry and detainer cases. ° 

Tl;iere must be either a forcible entry or the relation of 
landlord and tenant must exist, before a justice can talte 
jurisdiction in an action of forcible entry and detainer or 
of forcible detainer.' 

' Du Bignon v. Tufts, 66 Ga. 59. 

' Dunham v. Carter, 3 Stew. (Ala.) 496; Townsend v. Brooks, 5 Cal. 
53; Johnson v. Irwine, 3 Metcalf (Ky.), 251; Ginn et al. v. Rogers, 4 
Gilm. (111.) 131. 

3 Witz T. Haynes, 43 Ind. 470; Hoops v. Meyer, 1 Nev. 433; White 
V. Suttle, 1 Swan. (Tenn.) 169; Gorman v. Steed, 1 W. Va. 1. 

* Steiner v, Priddy, 38 111. 179. 



142 CO^tPLATNT HEEETOFOEE, ETC. [§11T. 



CHAPTER X. 
THE COMPLAINT. 

Section 117. Complaint heretofoi-e and at this time. 

118. Summons. * 

119. What the complaint should contain. 

120. What description of premises required. 

§ 117. Complaint heretofore and at this time. — The 

complaint is the foundation of the action, and in the his - 
tor}' of the action, in the State of Illinois, has been 
jurisdictional, and must state a good cause of action. 

So that, heretofore, in this State it has been a serious 
matter to pi^operly draw a complaint in forcible entry 
and detainer, and there are many decisions by the 
Supreme Court on the sufficiency of the complaint. 

Thus, a complaint in writing that the complainant " is 
entitled to the possession of a house and lot in the town 

of , whereon one Wells lives, and that said Wells 

refuses to give possession of said house and lot, though 
he has been notified to do so in writing," was held 
insufficient, the court saying, the plaintiff ought to have 
stated in his complaint, that the defendant willfully and 
without force held over the premises after the term had 
expired for which they were leased to him, or, in other 
words, the relation of landlord and tenant should be 
shown to exist, and the holding over after a demand 
made in writing by the landlord. This was under the 
statute of 1819.' 

'Wells V. Hogan, Breese, 337; Ballance v. Curtenius, 3 Gilm. 449. 



§ 117.] COMPLAINT HEEETOIi"OEE, ETC. 143 

But these cases must be, in the future, in a measure 
obsolete in, this State, since the enactment of the late 
statute, which provides: "What a complaint shallstate. ' 

A complaint which shows a case within any of the 
provisions of the statute is sufficient to give the court 
jurisdiction.^ 

A general description, if sufficient!}^ certain, is good.' 

If objection is to be taken to the complaint, it must be 
done in the court that first tries the case, and it will be 
too late to make objection to the complaint on appeal, if 
no objection was urged in the court below by motion to 
quash.* 

If the complaint is defective, it should be amended, on 
motion for leave to amend in the lower court. Amend- 
ments may be allowed in the discretion of the court at 
any time, even after a verdict by a jury. Thus, where 
a case was reversed by the Supreme Court, because it 
was not shown that the defendant was in- possession of 
all the land described in the complaint, the cause went 
back on remandment to the circuit court, where the 
plaintiff was permitted .to amend his complaint so as to 
include only part of the land therein described. Held, 
that such leave was prqperl}' granted. " 

The complaint should be filed in court, and any motion 
made to quash complaint should be tiled. This is true as 
a matter of protection, whether required by law or not. 

' Rev. Stat., ch. 57, sec. 5. 
^ Haskins et al. v. Haskins, 67 111. 446. 
'Atkinson v. Lester, 1 Scam. 407. 

*Leary v. Pattison, 66 111. 203; Brown v. Keller, 33 111. 151; Jack- 
son V. Warren, 32 111. 331. 
■■' Thompson v. Sornberger, 78 111. 353; Spurck v. Forsyth, 40 111 438. 



l-tJ: thp: summons. 



[§'118. 



It has been held, that there is no law requiring justices 
of the peace to mark the papers in cases in their court 
filed.'" 

g 118. The summons Sec. 5. On complaint in 

writing by the party or parties entitled to the possession 
of such premises being filed in any court of record, or 
with any justice of the peace in the county where such 
premises are situated, stating that such p'arty is entitled 
to the possession of such premises (describing the same 
with reasonable certainty) and that the defendant (naming 
him) unlawfully withholds the possession thereof from 
him or them, the clerk of such court or such justice of 
the peace shall issue a summons directed to the sheriff or 
any constable of his county to execute; which summons, 
when issued by a justice of the peace, may' be substan- 
tially in the following form : 

STATE OF ILLINOIS, ) 

■ ss 
County of Cook. J 

The People of the State of Illinois, to the Sheriff or 
any Constable of said County — Greeting: 

You are hereby commanded to summon to appear 

before j at , on the day of , A. J) , 

at o'clock _ _ . M. , to answer the complaint of 

wherefore he unlawfulh^ withholds from him the posst^- 
sion of certain premises in said county (describing the 
premises), and hereof make due return, as the law directs. 

Given under my hand this day of , A. D. 1 8 _ . . 

In a forcible entry and detainer suit, the complaint is 
a mere pleading, not required to be sworn to and not 

1 Reynolds v. Gage, 91 111. 125. 



§ 119.] WHAT COMPLAINT SI-IOUED CONTAIN. 145 

required to be made or signed by the plaintiff in person ; 
it may be made by an agent or attorney.' 

The complaint in forcible entry and detainer must 
show the relation of landlord and tenant to have existed ; 
that the time for which the premises were let has expired 
and that the tenant persists in holding the premises after 
demand made in writing for the possession." 

No precise form of complaint is essential. It is suffi- 
cient, if the complaint shows the relation of landlord and 
tenant to have existed ; that the rent term has expired 
and that the tenant is holding over after demand made 
in writing for possession thereof." ' 

§ 119. What the complaint should contain. — In 

Illinois the complaint must show, that the plaintiff had 
the right of possession at the time of the commencement 
of the action, or that he was in the possession, actual or 
constructive, at that time, it not being necessary for 
him to allege the estate held by him ; but a complaint 
for forcible en try and detainer can. not be maintained, 
which merely alleges that the plaintiff was entitled to 
possession and that the defendant entered forcibty and 
kept him out, without averring that the plaintiff had 
actual or constructive possession, or that the relation of 
landlord and tenant existed.* 

The complaint in forcible entry and detainer should 
describe the premises properly, instead of following an 
erroneous description in the lease. Upon trial it can be 

'Patterson et al. v. Graham, 140 111. 531. 

»Beel V. Pierce et al., 11 111. 93; Cairo, etc., E. R. Co. v. Wiggins 
Ferry Co.. 82 111. 330; Dunne v. Trustees of Schools, 39 111. 518. 
' Smith V. Killeok et ux. , 5 Gillman (111.), 293. 
■» Whitaker et al. v. Gautier, 3 Gilm. (111.) 443. 
10 



146 DESCRIPTION OF PEEMISES EEQUIEED. [ § 120. 

shown that the defendant entered into the premises under 
the lease and paid rent therefor.' 

It is not sufficient to allege, that A. entered forcibly 
upon the premises of which the plaintiff was in posses- 
sion and that A. afterwards transferred the possession to 
the defendants, who have since forcibly kept possession.' 

If the complaint shows the relation of landlord and 
tenant to have existed, that the time for which the 
premises were let had expired, and that the tenant per- 
sists in holding the premises after demand made, in writ- 
ing, for the possession, it is sufficient, without stating 
that the plaintiff was ever in actual possession of the 
premises." 

§ 120, What description of the premises required. 

— The description in the complaint must be sufficiently 
accurate to readily identify and locate the premises for 
the possession of which the action is brought. " 

The description of land in a complaint in an action 
of forcible entry and detainer, from which the land is 
susceptible of being easily and definitely located by a 
surveyor, is sufficient." 

Any description by which the premises can be readily 
identified and located is all that is required in a com- 
plaint in an action of forcible entry and detainer." 

If an officer executing a writ of restitution could iden- 

' Gerlach v. Walsh, 41 111. App 83. 

» Ballance v. Curtenius, 3 Gilm. (111.) 449. 

'The Cairo & St. L. R. R. Co. v. Wiggins Ferry Co., 82 111. 330. 

■* Stillman v. Palis, 134 111. 533. 

* Dunne v. Trustees of Schools, 89 111. 578. 

« The Cairo & St. L. R. R. Co. v. Wiggins Ferry Co., 83 111. 330. 



§ 120. J DESCRIPTION OF PREMISES EEQUIKED. 14Y 

tify the premises as described in the writ, 'the description 
is sufficient to sustain a complaint/ 

But a description which falls short of the above rule 
is insufficient; for instance, a description "'of about 
fifteen acres, a part of a tract of one hundrecj and sixty 
acres," not showing what part of the one hundred and 
sixty acres, is insufficient." 

A complaint, reading: "that the defendant, on, etc., 
came into the possession of the following described 
premises under a contract of purchase from affiant, to- 
wit : a part of the southwest quarter of the southeast 
quarter in section one, etc. , and that the said defendant 
has failed to comply with his said contract of purchase 
and still holds possession wilfully and without force, ' ' etc. , 
held, that the complaint was not sufficient to confer jur- 
isdiction, and also that the description of the land as a 
part of a tract was void for uncertainty, and because it 
does not say that he failed to comply with his contract 
before obtaining a deed of conveyance. ' 

Three and one half acres off a specified tract is not a 
good desciiption of land in a complaint." 

A description of premises sought to be recovered in an 
action of forcible entry and detainer, as " a part of the 
north half of the northeast quarter of section 15," etc., 
"with the house situated thereon," is void for uncer- 
tainty and confers no jurisdiction on the magistrate to 
hear and determine the case. The defect can not be 
supplied by parol evidence given on the trial." 

' Maloney v. Shattuck, 15 111. App. 44. 
» Haskins et al. v. Haskins, 67 HI. 446. 
3 Beel V. Pierce et al , 11 111. 93. 
■• Klingensmith v. Faulkner, 84 Ind. 831. 
° Sohaumtoeflfel v. Belm, 77 111. 567. 



14:8 DESCEIPTION OF PEEMISES EEQUIEED. [§120. 

' ' The premises enclosed by us, situated in the county 
of Cook and State of Illinois, being the same on which 
you now reside, containing about one hundred acres, 
more or less, and commonly called North Grove," is 
sufficient description.' 

' Atkinson v. Lester et al. , 2 111. 407. ' 



§ 121. J STATUTOEY PROVISIONS. 149 



CHAPTEE XL 

PLEADINGS — TRIAL — PKOCEBDINGS. 

Section 121. Statutory provisions. 
123. Pleadings. 

123. Amendments. 

124. Plea of not guilty. 

125. Time to amend. 

126. Questions of practice. 

127. Whom affected by judgment. 

128. Defendant's conclusive possession. 

129. Mistake in date of complaint. 

130. Judgments vs^here several holdings. 
181. Pursuing two remedies at one time. 

' Sumrnons from Jtistice — Returnable When. 

§ 121. Statutory provisions — Sec. 7. When the sum- 
mons is issued by a justice of the peace, it shall sjiecify a 
certain place, day and hour for the trial, not less than 
five nor morp than fifteen days from the date of the sum- 
mons. 

Summons from Qo-urt — Returnable When. 

Sec. 8. — When the summons is issued out of a court 
of record, the summons shall be made returnable on the 
first day of the next succeeding term of said court, and 
if not served ten clays before the first, day of the next 
term, the cause shall be continued to the next term of 
court. 

Service of Summons — Return — Publication. 

Sec. 9. Service of summons shall be made by deliver- 



150 STATUTORY PEOVISIONS. [§ 121. 

ing a copy thereof to the defendaot, or by leaving such 
copy at his usual place of abode, with some person of 
the family of the age of twelve years or upwards, and 
informing such person of the contents thereof. The 
manner of the service, and the date thereof, shall be 
indorsed on the back of said summons bj^ the officer serv- 
ing the same. When service cannot be had as provided 
in this section, and it shall appear by affidavit or the 
return of the officer that the defendant is not a resident 
of this State, or has departed from this State, or on due 
inquiry cannot be found, or is concealed within this 
State so that pjocess cannot be served upon him, then, if 
the suit is in a court of record, service may be had by 
notice as in case of attachm^ent in courts of record, or if 
the suit is before a justice of the peace, by notice as in 
case of attachment before justices of the peace. 

Jury Trial Before Justice. 

Sec. 10. In trials under this act before justices of the 
peace, either party may have the case tried by a jury, if 
he shall so determine before the trial is en^tered upon, and 
will first advance the fees of the jurors. The number of 
the jurors shall be six, or any greater number not exceed- 
ing twelve, as either party may desire. 

Trial in Court of Record — Pleading. 

Sec. 1 1 . Trials under this act in courts of record shall 
be the same as in other cases at law in such courts, pro- 
vided no special pleading shall be required ; but the 
defendant may, under the plea of "not guilt}'," give 
in evidence any matter in defense of the action. 



§ 122. J • PLEADINGS. 151 

Default — Trial JEw Parte. 

Sfx\ 12. If the defendant does not appear (having 
been duly summoned as herein provided), the trial may 
proceed ex parte and may be tried by the justice of the 
peace or judge of, the court, without the intervention of 
a, jury. 

§122. Pleadings. — There is no necessity, for written 
pleadings, other than the plaint, in actions of forcible 
detainer in a justice court. Section 11 of the forcible 
entry and detainer act refers to actions brought in a 
court of record. The plea and abatement of the pend- 
eno}' of a prior suit may be stated orally.' 

The general denial or the plea of not guilty is always 
a good defense ; it puts in issue all the material allegations 
of the complaint and under it the statutes usually allows 
all the matter of excuse, justification or avoidance to be 
proved. Where the declaration alleged, that the plaint- 
iff obtained judgment in the action of forcible entry and 
detainer and the plea did not deny it, no evidence of that 
fact was necessary, as it was solemnly admitted by. the 
pleadings.'' 

Formal defects in the proceedings may be taken advan- 
tage of by a plea in abatement, as in other actions." 

The allegations of |the complaint must be construed 
most strongly against the pleader, and ^vhen he says he 
has possession and at another time avers the contrary,. 

' Steele v. Grand Trunk Junction Ry. Co., 125 Ifl. 385. 
^ Watson V. Whitney, 33 Oal. 375; McGlynn v. Moore, 25 Cal, 348. 
^Shunicket al. v. Thompson, 25 111. App. 619; Steele v. Grand 
T'runk Junction Ry. Co., 17 N. E. Rep. 483. 



162 AMENDMENTS. [§123. 

the complaint shows no ground of action. The rule that 
a judgment on a plea in abatement is final in an action 
for specific recovery of land applies to an action under 
the Illinois forcible entry law.-" 

In landlord and tenant cases, the tenant is usually 
estopped to deny his landlord's title, but he may attorn 
to another claiming title from the landlord and defend 
on that ground ; he may plead that the term has not 
expired ; hg may plead fraud on part of the landlord in 
obtaining a lease when the property was already held 
under a contract of sale.° 

Pending an appeal, an injunction will not be issued to 
restrain the execution of a writ of restitution, this object 
being usually accomplished by the appeal taken by the 
appellant, for which provision is made in the statutes of 
most of the States. ' 

The fact, that a landlord had instituted an action of 
forcible entry and detainer against his tenant, would not 
operate to deprive the landlord of his right to make entry 
under the agreement in the lease, he having a right to 
resort to either or both remedies at the same time.^ 

§ 123. Amendments. — In commencing the action of 
forcible entr}'- and detainer, the only safe course is to 
observe the requirements of the statute and its construc- 
tion by the supreme court in decided cases. 

Care should be taken to have the notice to terminate 
the tenancy, the demand for possession, the complaint and 

' Dickinson v. McGill, 9 Cal. 47. 

2 Locke V. Frasber, 79 Va. 409; Alderson v. Miller, 15 Gratt. (Va.) 
279. 
^Fabri v. Bryan et al., 80 111. 183. 



§ 124.] PLEA OF NOT GUILTY. 153 

the summons on the defendant, all correctly prepared, as 
the law and facts require. And when the trial com- 
mences, if any of these are informal, the defect should 
be remedied by amendment instanter. Any action of 
forcible entry and detainer that may be brought will 
come under a clause of the statute as hereinbefore set 
forth. And on the trial of the case, it is necessary to 
specially see that no part of the evidence necessary to 
sustain the action is omitted. 

To illustrate : If the notice and demand have been 
made by an authorized agent, the proof must show that 
the agent was authorized, and that the act done by him 
in making the notice or demand, was done in his capacity 
as agent. 

§ 124. Plea of not guilty. — Tjae statute provides as 
follows : 

" In trials under this act before justices of the peace, 
either party may have the cause tried by a jury, if he 
shall so determine, before the trial is entered upon, and 
will first advance the fees of the jurors. The number of 
jurors shall be six, or any greater number not exceeding 
twelve, as either party may desire." 

"Trials under this act in courts of record, shall be the 
same as in other cases at law in such court ; provided, 
no special pleadings shall be required ; but the defendant 
may, under the plea of ' not guilty,' give in evidence any 
matter in defense to the action." 

' ' If the defendant does not appear (having been duly 
summoned as herein provided), the trial may proceed ex 
parte, amd may be tried by the justice of the peace or 
judge of the court, without the intervention of a jury." ' 

' Rev. Stat. chap. 57, sees. 10, 11, and 13. 



154: TIME TO AMEND. [§ 125. 

The proceedings under the statute of forcible entry and 
detainer, being summary and contrary to the course of the 
common law, must strictly conform to the requirements 
of the statute.' 

Appeals in a forcible entry and detainer case are sub- 
ject to the same rules of practice as appertain to ordinar}" 
appeals from justices of the peace. 

§ 125. Time to amend. — In practice, in cases of forcible 
entry and detainer, amendments may be made in the com- 
plaint and other papers in the case as fully as in anj' 
other cases. Even the appeal bond may be amended in 
the discretion of the court," , 

And the supreme court has held that, where a party 
desires to amend an appeal bond, it is the exercise of a 
right conferred by the statute, which cannot be refused. 
The court, however, has the right to fix the time within 
which it shall be done. In the case here cited, the 
plaintiff in error offered to amend his bond, but the court 
refused to permit him to do so, and dismissed the appeal, 
and in so refusing committed an error for which the 
judgment of the court below Avas reversed." 

Generally, all amendments are in the discretion of the 
court, and are allowed or refused as the court may deem 
most conducive to the furtherance of justice under the 
particular circumstances of the case.' 

And the court, after holding that there was no error 

1 Wells V. Hogan, Bi-eese, 337. 
' Harlan v. Soott, 3 Scam. 65. 

' Weist V. The people, 39 111. 507; Carroll v. City of Jacksonville, 3 
Bradw. 481; Spurok v. Forsyth, 40 111, 438. 
^Ballance v. Curtenius et al., 3 Gilm. ^49. 



§ 12 5. J TIME TO AMEND. 155 

in granting leave to ainencl ;tlie complaint, added : ," Even 
if error could be assigned in the exercise of a discretion - 
&vy power of this nature." If an appeal bond is insuffi- 
cient, it is the duty of the court to require a new bond, 
and dismiss the case unless the bond is given within the 
required time. And no motion is necessary for leave to 
file a new bond when the first is held insufficient.' 

If a bond is given on appeal from the justice court, and 
is adjudged informal or otherwise insufficient, the party 
executing the same shall be in no wise prejudiced by 
reason of such informality or insufficiency, provided he 
shall, in a reasonable time, file a new and sufficient bond. 
Almost any attempt, made in good faith, to- execute an 
appeal bond, requires the court to allow such amend- 
ments or such new bonds as will obviate the imperfec- 
tions." 

Technical defects in the transcript from the justice's 
docket, or in the appeal bond, will not prevent the appel- 
late court taking jurisdiction of the appeal. The object- 
ing party should obtain a rule to remedy the defect.^ 

Where a complaint is defective, a motion to quash is 
the proper practice. This motion should be made before 
trial ; and if no objection is made to the complaint in 
the court below, it is too late in the Appellate Court.^ 
And on trials before justices of the peace, any matter in 
abatement should be insisted on at an earl}' stage in the 
suit.' 

' "W:ear v. Killeen, 38 111. 259. 
, ' Hinman v. Kltte man, 40 111. 354. 

3 Fink et al. v. Disbrow, 69 111. 76. 

^Leary v. Pattison, 66 111. 203; Jackson v. Warren, 32 111. 331: 
Doran v. Gillespie, 54 111. 366; Huftalin v. Misner, 70 111. 55; Center 
V. Gibney, 71 111. 557. 



156 QUESTIONS OF PEACTICE. [§126. 

§ 126. Questions of practice As a free-hold is not 

involved in an action of forcible detainer, a writ of error 
does not lie from this court to the trial court to review 
the proceedings : such writ should emanate from the 
Appellate Court." 

In an action of forcible entry and detainer, the court 
cannot look to the equities of the parties, but must enforce 
their strict legal rights.' 

In an action of forcible entry and detainer, the inquiry 
whether the plaintiff is entitled to rent or damages is 
improper. No judgment can be rendered for either." 

Foi'cible detainer cannot be maintained unless the 
defendant's possession is shown.'' 

A suit for forcible entry and detainer not being main- 
tainable because of a failure to make the statutory demand, 
the defendant appealing from the justice's judgment, in 
behalf of plaintiff, will not estop the plaintiff from giving 
the required notice and beginning another suit without 
first dismissing the appeal suit in question.^ 

Parol evidence cannot be heard to prove that the 
trustee in a deed of trust in fact made no sale under the 
same to contradict the deed of trust and the deed of the 
trustee made in foreclosure. ° 

Proof that the plaintiff was possessed of part of the 
premises described in the complaint does not authorize a 

' Kepley v. Luke, 106 111. 395. 

» 111. Cent. R. R. Co. v. B. & O. & C. E. R. Co., 23 111. App. 531. 
' Shuniok et al. v. Thompson, 35 111. App. 619. 
"Bowman v. Mehring, 34 111. App. 389; Murphy v. Dwyer, 11 111. 
App. 346. 
» O'Malia et al. v. Glynn, 43 111. App. 51. 
« Windett. v. Hurlbut, 115 111. 403. 



^ 127.] wiioj\[ affected by judgment. 157 

recovery of such part. The act regulating the action 
requires a particular description of the premises to be 
made in the complaint, and the proof must follow and 
conform to the description ; ' but this matter is now 
regulated by Par. 17 of the statute. - 

In forcible entry and detainer cases, the statute requires 
a pai-ticular description to be made in the complaint of 
the premises sought to be recovered and the proof must 
follow and conform to the description to warrant a 
recovery. ° 

The refusal of the Circuit Court to permit an amend- 
ment of the complaint in an action of forcible entry and 
detainer cannot be assigned for error. ' 

A variance between the verdict and judgment in an 
action of forcible detainer, as to certain lands, was held 
to be fatal." 

g 127. Whom affected by judgment A judgment in 

forcible entry and detainer is conclusive only as to the 
right of possession, and in a certain class of cases as to 
the existence of the relation of landlord and tenant 
between the parties and as to the tenant's wrongful hold- 
ing over.'' 

A landlord recovered a judgment in forcible detainer 
agd.inst his tenant and sued for rents. The tenant set 
up in defense an injurj- for the breach of a covenant in 
the lease and also brought his action against the land- 

1 Thompson v. Sornberger, 59 111. 336. 
' House V. Wilder et al., 47 lU. 510. 
^ Ballance v. Curtenius et al., 3 Gilman (III.) 449. 
'-Tanning v. N. W. Mutual Life Ins. Co., 6 111. App. 536. 
Keating v. Springer, 146 111. 481. 



158 WHOM AFFECTED BY JUDG1£ENT. [§ 1'2 t . 

lord to recover for the breach of his covenants. Held, 
that the judgment was no bar to the second suit and did 
not preclude the tenant from recouping damages against 
the rent.' 

One who does not purchase pendente lite cannot be 
injuriously affected bj^ a judgment or decree to which he 
was not a party.'' 

"Where the tenants were trespassers, it was proper for 
the court to direct the jury that they might allow interest 
on the rental value of the premises wrongfully withheld.' 

When judgment is passed in forcible entry and detainer, 
under a power in the lease and the tenant enters a motion 
to vacate the judgment and files therewith an affidavit 
disclosing a good defense in law to the plaintiff's action, 
the motion should be granted.' 

An execution levied on goods on leased premises, prior 
to the distress, takes precedence of any claim the land- 
lord may have for the rent of the building in which the 
goods are kept. '' 

x\. judgment in the case being for a sum equal to the 
entire amount that would accrue to the end of the term, 
to be discharged upon the payment of the rent found 
due, up to the bringing of the present suit, together with 
interest, this* court holds, that the same is erroneous, and 
that it should have been that plaintiif have and recover 
his debt to the amount of the accrued rent and his dam- 

' Keating v. Springer, 146 111. 481. 

'^ Shuniok et al. v. Thompson, 25 111. App. 619. 

^ Lambert et al. v. Borden, 16 111. App. 431. 

■' Ryan v. Kirchberg, 17 111. App. 132. 

* Rowland v. Hewitt, 19 111. App. 4.50. 



§ 128.] COLLUSIVE POSSESSION. 159 

ages and the amount of the interest thereon and his 
costs and charges.' 

Where a complaint in forcible entry and detainer is 
defective in substance, a motion to quash the complaint 
will avail the party alleging the deficiency. ° 

A motion to quash the complaint and dismiss the cause, 
because the description of the premises is insufficient, and 
for want of a demand, comes too late after the jury is 
impaneled and swofn and the trial has commenced. ° 

An objection to the sufficiency of the complaint in 
forcible detainer must be made by motion to quash before 
trial; such defect cannot betaken advantage of on the 
trial." , ^ ' ' . ' 

•i 

Where, by the terras of a lease, payments are to be 
made in "monthly installments, action may be brought to 
recover for more -than a month if then due, and the 
plaintiff is not required to Wait until the expiration of a 
year or any particular time longer than a month before 
bringing suit. * 

As the proceeding of forcible entry and detainer is in 
derogation of the common law and given by statute 
only, the requirements of the statute must be substan- 
tially observed and pursued.^ 

§ 128. Defendant's collusive possession.^ — Where a 
defendant obtained possession of premises through collu- 
sion with the plaintiff's tenant, he cannot, until he has 

' N. W. BrewiDg Co. v. Manion, 47 111. App. 637. 

■' Doran v. Gillespie, 54 111. 366. 

» Leary v. Pattison, 66 111. 203. 

* Consolidated Coal Co. of St. Louis v. Pears et al., 39 111. App. 453. 

" Schauratoeffel v. Belm, 77 111. 567. 



160 MISTAKE IN DATE. [§ 129. 

surrendered the possession to the landlord, set up as 
against the landlord a right of possession otherwise 
acquired.' 

An appearance before a justice of the peace, in an 
action of forcible detainer, does, not waive any defect in 
the notice to deliver possession. ° 

Proceedings under statute for forcible entry and de- 
tainer must strictly conform to the requirements of the 
statute.' 

A defendant may set up and prove as a defense to this 
action, that the plaintiff in the suit disclaimed the right 
of possession prior to the defendant's entry.' 

A judgment should not be rendered against several 
defendants where the evidence shows that only one of 
them was in possession of the property in question. "^ 

A lease for a term exceeding ten years, of lands with 
improvements, may be taxed and the interest of the ten- 
ant sold. It would seem, on execution, that the judgment 
in such case should be against the leasehold, where it is 
rendered for non-'payment of taxes. 

An objection not taken in a court below will not be 
noticed on appeal unless the complaint is so defective in 
substance that no judgment can be rendered for any par- 
ticular premises." 

§ 129. Mistake iu date of complaint That a com- 
plaint bears date two years subsequent to the other pro- 

' Ragor V. McKay, et al., 44 111. App. 79. 

•' Seem v. McLees, 24 111. 193. 

2 Wells V. Hogan, 1 111. 337. 

■' Dudley et al. v. Lee, 39 111. 339. 

'^ Norris v. Pierce, 47 111. App. 463. ' 

« Hilliard v. Carr, 6 Ala. 557. 



§130.] SEVERAL HOLDINGS. 161 

ceedings in the case, will be considered a mere clerical 
error, and not available. ' 

On dismissal of an appeal by the defendant in a case 
of forcible detainer, the court may award restitution." 

In an action for forcible entry and detainer, the fact 
that the plaintiff's lease, under which he was in posses- 
sion at the time of the defendant's entry, expired before 
the trial of the action, is no bar to a recovery. 

An heir cannot maintain an action upon a bond filed 
on an appeal from a judgment in an action of forcible 
entry and detainer, to recover damages accruing after the 
death of the obligee therein, who was the father of 
plaintiff, and before the surrender of the possession of 
the property in question.' 

§ 130. Judgment where several holdings. — Sec. 15. 
Whenever there shall have been one lease for the whole 
of certain premises, and the actual possession thereof, at 
the commencement of the suit, shall be divided in 
severalty among persons with, or other than, the lessee, 
in one or more portions or parcels, separately or severally 
held or occupied, all or so. many of such persons, with 
the lessee, as the plaintiff may elect, may be joined as 
defendants in one suit, alid the recovery against them, 
with costs, shall be several, according as their actual 
holdings shall respectively^ be found to be. ' 

The action will not lie against two or more holding in 
severalty.' 

' Powers V. David, 6 Ala. 9. 
2 Harlan v. Scott, 3 111. 65. 
' Keegan et al. v. O'Callaghan, 35 III. App. 143. 
^ Gould et al. v, Hendrickson, 9 111. App. 171; Reynolds v. Thomas 
et al., 17 111. 207. 
11 



162 PURSUING TWO REMEDIES. [§'131. 

Four notices in writing, of a demand ot possession of 
land, prepared at the same time and all alike except that 
three of them are addressed to three different occupants 
of the land, and the fourth one is retained by the party 
preparing them, all are original duplicate papers, and the 
names of parties addressed are not part of the notice, and 
the one retained is properly admissible in evidence as a 
written demand to support an action of forcible entry and 
detainer.* 

Color of title is a (|uestion of law." 

§ 131. Pursuing two remedies at the same time A 

seeming conflict of remedies arises where judgment, for 
possession of lands and tenements, is rendered by the 
chancery court, while the action of forcible entry and 
detainer is pending on appeal. But this conflict is avoided 
by pursuing both remedies until satisfaction of one is had, 
exactly as two judgments may be obtained on the same 
claim, but the satisfaction of either judgment bars all 
further proceedings. A chancery court can not be ousted 
of jurisdiction by the pendency of a forcible entry and 
detainer case in the justice court. 

Judgment was obtained by "Whittaker against Kes- 
singer, in an action of forcible entry and detainer, before 
a justice of the peace, for the possession of the premises 
in question, from which judgment Kessinger took an 
appeal to the circuit court. Pending this appeal, the 
circuit court in chancery rendered a decree against Whit- 
taker for the recovery of the same premises. It was 

' Blanohard et al. v. Pratt, 37 III. 243. 

2 Woodward v. Blanchai-d, 16 111. 434; Blanohard et al. v. Pratt, 37 
111. 343. 



§ 131. J PURSUING 'nVO REIIEDIKS. 163 

then objected that the pendency of the forcible entry and 
detainer suit barred the proceeding in chancery while the 
suit was so pending on appeal. The court held that the 
remedies are concurrent, and that either or both of them 
might be pursued until a satisfaction was had of one or 
the other, which satisfaction would operate as a bar to 
any further proceedings. Were a bar or abatement to 
apply to either proceeding, it would rather be to the suit 
at law. The chancery court had jurisdiction of the 
whole subject matter before the commencement of the 
suit at law, and can not be ousted of its jurisdiction by 
the pendency of a forcible entry and detainer suit in a 
court of law. ' 

Where, by the terms of the lease, a .greater sum of 
money is to be paid upon default in the payment of a 
lesser sum, at a given time, the provisions for the pay- 
' ment of the greater sum will be held a penalty. And 
where, by the terms of the contract, the damages are 
not difficult of ascertainment and the stipulated damages 
are unconscionable, the stipulated damages will be 
regarded as a penalty.'' 

' yansant v. AUmon, 23 111. 30; Kessinger v. Whittaker et al., 83 
111. 23. 
'Poppers V. Meagher, 148 111. 192. 



164 tenant's possession. [§132. 



CHAPTER XII. 

THE TENANT CAN NOT DISPUTE THE LANDLORD'S TITLE. 

Section 133. Tenant's possession that of the landlord. 
133. Jury can not consider title. 
184. Tenant must restore possession to lessor. 

135. May show that lessor's title has terminated. 

136. What the tenant may show. 

137. Deeds may be read to show boundaries. 

138. The true meaning of the law. 

139. Can show source of title. 

140. Mistake, artifice and fraud. 

141. The settled rule. 

§ 132. Tenant's possession that of the landlord 

The tenant cannot dispute the title of his landlord. The 
possession of the tenant is that of the landlord.' 

A tenant is estopped from denying the title of his land- 
lord.'' 

The question in forcible entry and detainer is not the 
title of the premises, but one of possession and right of 
possession.' 

A tenant is estopped from denying the title of his 
landlord and his possession is subservient to the title of 

' Prettyman v. Walston et al., 34 111. 175; Doty v. Burdick, 83 111. 
473; Ankeny v. Pierce, 1 111. 362. 

» McCartney v. McMullen, 38 111. 337; Rigg v. Cook, 4Gilman(Ill.), 
336; Knight v. Knight et al., 3 111. App. 306. 

'Thomasson v, Wilson, 46 111. App. 398: Sexton et al. v. Carley, 
147 111. 269; Phelps v. Randolph, 147 111. 335. 



§ 133.] JURY CAN NOT CONSIDER TITLE. . 165 

the landlord, and he will not be permitted to betray the 
possession with which he was intrusted.' 

§ 133. Jury can not consider title. — In an action of 
forcible entry and detainer, the question of the title to 
the premises is not involved and can not be shown or 
considered by the jury.'' 

Title deeds may be introduced in an action of forcible 
entry and detainer to show the character or extent of the 
possession claimed." 

The validity of title to land, cannot be tried in this 
action.* 

Evidence of title in forcible entry and detainer, merely 
for the purpose of showing the character or extent of a 
possession, is proper.'' 

The tenant who entered into premises under the land- 
lord, thereby acknowledges that the landlord is the 
owner." 

An under-tenant or other person let into possession by 
the tenant must yield the possession to the landlord ; 
he succeeds to the original tenant's rights and nothing 
more.' 

Where the owner of the fee accepts a lease of the 
premises from another and goes into possession under it, 
neither he nor his assignee can dispute the lessor's right 

' Doty V. Burdick, 83 111. 473. 
' Doty V. Burdick, 83 111. 478. 
'Ragor V. McKay et al., 44 111. App 79. 

■•Coppinger et al. v, Armstrong, 8 111. App. 210: Wheelan v. Fish, 
2 111. App. 447. 

. 5 City of Bloomington et al. v. Brophy, 33 111. App. 400. 
"Stillman v. Palis, 134 111. 533. 
' Thomasson v. Wilson, 146 III. 384. 



166 TENANT MUST KESTOIiE POSSESSION. ,[§134. 

to lease, at least not until he shall have surrendered the 
possession to him.' 

§ 134. Tenant must restore possession to lessor 

A. tenant is not permitted to dispute the title under which 
he enters ; he must restore' the possession to the land- 
lord before he can assail his title.'' 

The principle which forbids a tenant to dispute the 
title of his landlord applies to any person who may 
acquire the possession from or through the tenant ; he 
will acquire no greater rights than the tenant.'' 

Where actual possession of a part of the premises is 
shown to be in the plaintiff in an action of forcible 
detainer, the plaintiff's deed is proper evidence for the 
purpose of showing the extent of possession." 

Title is immaterial in a proceeding for' forcible entrj^ 
and detainer except to show the extent of the possession.' 
Deeds may be read in evidence to prove boundaries or 
extent of possession." 

It is equally well settled that the tenant is not estopped 
to deny, that since his own entry into possession his 
lessor's title had expired, either by its own limitation, 
by the act of the lessor or by eviction by paramount 
title.' 

Hawes et al. i\ Shmv, 100 Mass. 137, was an action 
for possession similar to the action of forcible detainer in 
Illinois.' 

' Kepley v. Luke, 106 111. 395. 

" Alwood V. Mansfield, 33 111. 453. 

« Griffin v. Kirk, 47 111. App. 258. 

'' Fusselman v. Worthington, 14 111. 135. 

'Hardin v. Forsythe et al., 99 111. 313. 

"Brooks V. Bruyn, 18 111. 539. 

■" Hilbourn v. Fogg et al., 99 Mass. 11. 



§§ 135-137.] lessor's title terminated. 167 

After accepting the lease and thereby solemnly admit- 
ting the title, it is too late to deny it. ' 
§ 135. May show that lessor's title has terminated. 

— A tenant cannot dispute the title of his landlord so 
long as it remains as it was at the time the tenancy com- 
menced; but he may show that the title under which he 
entered has expired, or been extinguished.'' 

Where a person enters into possession of lands as a 
tenant, before he can assail or call in question the title of 
the landlord, he must restore the possession to him and 
place the landlord in the same position he occupied 
before he parted with the possession of his lands. ° 

g 136. What the tenant may show While a tenant 

cannot dispute his landlord's title, he may show it has 
terminated either by its own limitation or by conveyance.^ 

Deeds may be read in evidence on the trial of forcible 
entrj' and detainer to show the extent of the possession. ' 

A tenant may show that the title of a landlord has 
terminated, that the landlord has conveyed to another, 
or that his title has been sold on execution and in that 
manner passed into other hands." 

§ 137. Deeds may be read to show boundaries 

Deeds under which a party claims may be, read in evi- 
dence in an action of forcible detainer for the purpose 
of showing the boundaries or extent of possession.' 

' Dunbar v. Bonesteel, 3 Scam. (111.) 33. 
- Bigler V. Furnian et al., 58 Barbour, 555. '_ ' 

" Hardin v. Forsythe et al., 99 111. 313. 
■•St. John V. Quitzow, 73 111. 334. 
' Smith V. Hoag, 45 111. 350. 
- « Hardin v. Forsythe, 99 111, 312. 
' Griffin v. Kirk, 47 111. App. 258. 



168 MEANING OF THE LAW. [§ 138, 139. 

The principle, that the tenant cannot deny his land- 
lord's title does not pi'ohibit the tenant during his ten- 
ancy from purchasing ah out-standing title and from- 
asserting the same against the landlord after the expira- 
tion of the tenancy and after he yields up the possession.' 

A deed to the premises is admissible in evidence on a 
trial of an action of forcible entry and detainer, for the 
purpose of establishing the extent of the plaintiff's claim; 
also to show the" animus — the intention with which the 
party entered.'' 

The tenant may show that the lessor had but a limited 
interest, which has determined.' 

§ 138. The true meaning of the law. — The true 
meaning of this is, that a tenant shall not deny the title 
under which he enters, or set up a title in another, in 
contravention of the one he has admitted. But a tenant 
may always show that his landlord's title has expired at 
the time of suit brought, or that he has sold his interest 
in the premises, or that it is aliened from him by judg- 
ment and operation of law. This is no denial of the 
landlord's original right. There is nothing in such a 
defense incompatible with the tenant's implied admission 
in accepting the lease.'' 

§ 139. Can show the source of title Although it is 

true that forcible entry and detainer is a possessory 
action in which title is not involved and cannot be tried, 

' Gable v. Wetherholt. 116 111. 313. , 

» Pearson v. Herr, 53 111. 144. 

'' Wells V. Mason et al., 4 Scammon (111.), 84. 

■* Den ex dem. Howell v. Ashmore, 3 Zab. 265. 



§ 139. J MEANING OF THE LAW. 169 

yet the rule has never been held so rigid as to preclude 
the defendant from showing the source of his claim.' 

A lessee may show that his lessor's title has expired, 
but he cannot show that it never existed. Although a 
tenant without a surrender or eviction, or something 
equivalent thereto, cannot show that the title of his 
landlord was not a valid one when he entered under him, 
he can show that such valid title has been legally extin- 
guished or determined, so that it no longer exists. 

He does nothing thereby inconsistent with the lessor's 
right to grant the original lease. The' tenant cannot be 
allowed to plead to his landlord's action nil habuit in 
tenementis, but he can plead nil hdbet^ etc. A tenant does 
not deny that the landlord had a title at the beginning of 
the lease by showing that' the same title has expired.'' 

In Taylor on Landlord and Tenant, section 705, it is 
said : ' ' ISTo proof of title is required in this action 
(ejectment) when it is brought by a landlord ; since if 
a tenant has once recognized the title of the plaintiff and 
treated him as his landlord by accepting a lease from 
him, or the like, he is precluded from showing that the 
plaintiff had no title at the time the lease was granted." ^ 

An exception to the general rule preventing a tenant 
from denying his landlord's title is, where he has been 
induced by artifice, fraud or mistake to accept the lease. 
In such case, he may show better title in himself, or in 
any third party under whom he claims. He will be per- 
mitted to avoid the lease by proof of such facts as would 

' Nicholson et al. v. Walker et al. , 4 111. App. 404. 
- Herman on Estoppel, sec. 868. 

2 Langford v. Selmes, 3 Kay & J. 320: Tilghman et al. v. Little, 13 
111. 239. 



170 MISTAKE. ARTIFICE, AND FEAUD. [§140. 

warrant relief in equity from any other obligation created 
by deed.' 

§ 140. Mistake, artifice, and fraud — While a tenant 
cannot affect his landlord's interest by accepting a lease 
from another, he may, by accepting two leases of the 
same premises for the same time, estop himself from 
denying the title of either ; yet an exception to this rule 
is recognized, where the tenant, already in possession 
under the first lease, accepts the second lease through mis- 
take, artifice, or fraud.'' 

Although the tenant cannot deny his landlord's title, 
he may show that he had a limited estate only, which is 
determined by its own limitation before the cause of 
action accrued, as one to hold the estate for the life of 
another, ■ or the lilie, whicli expired during the term ; 
or that he has sold and conveyed the land; or that he 
has been evicted by title paramount ; or that his title has 
been sold under execution and conveyed. This rule 
applies, whether the action be for the recovery of prem- 
ises or for rent accrued after the extinguishment of the 
landlord's title.' 

The tenant cannot set up a better title in himself or 
in a third person. He can do no act which may defeat 
or endanger the title of his landlord; he must surrender 
up the possession before he can assail or question the 
title and put the landlord in the position he occupied 
when he parted with the possession. And the same 
principle applies to those acquiring the possession from 

' Carter v. Marshall, 73 111. 609. 

' Petterson v. Sweet, 13 111. App. 255. 

■' Corrigan et al. v. City of Chicago et al., 144 111. 587. 



§ 140. J MISTAKE, AKTIFICE, AND FRAUD. 171 

i tenant. The relation of landlord and tenant attaches 
to all who succeed to the possession through or 'from the 
tenant, and they have no greater right than the party 
from whom they receive possession.' 

As a general rule, the title cannot be inquired into in 
this form of action ; yet it is admissible to look to the 
title to define the boundaries ; or in view of the question 
of damages or rents to be recovered in an action brought 
by a mere intruder against the rightful owner of the 
land ; or where the claimant by fraud induces another to 
take a lease, or to enter under him upon a false repre- 
sentation as to his title. In such cases and, perhaps 
others, the title may be looked to upon the question, 
whether the case made out constitutes, in law, a wrong- 
ful entry or detainer." 

A tenant may admit, that the landlord h^d title at the 
time he leased the premises and then sho\v that since 
that time the landlor^d had parted with his title, but he 
cannot show that the landlord had no title- at the time he 
leased the premises, as this would violate the principle of 
the tenant denying his landlord's title. This distinctiorl 
is set forth in Taylor's Landlord and Tenant, 7th ed. 
sec. s9, p. 70; sec. 629, p. 640; sec. 705, p. 593; and 
in sec. 629 it is said : "The- rule is well settled that the 
tenant is not allowed to dispute his landlord's title after 
having accepted possession under him. A lessee may, 
however, plead that, although the lessor had an interest 
in the premises at the time of the making of the lease, 

' Sexton et al. v. Carley, 147 111. 369. 

' Philips V. Sampson, 3 Head (Teiin.), 429. 



172 THE SETTLED K0LE. [§ 141. 

his interest terminated before the alleged cause of action 
arose." 

I 141. The settled rule The -well settled rule of law, 

b}' which a tenant who has entered into possession under 
-an oral lease is estopped, so long as he continues in posses- 
sion under the lease, to deny the lessor's title at the time 
of making the lease, as against the lessor, his heirs and 
assigns, is founded on the injustice of allowing a person 
who has obtained possession by admitting the title of 
another, to deny that title, and, in case of failure of 
proof of it, hold the premises himself. The rule, holds 
good where the actual title of the lessor is that of a mere 
tenant at will, and applies in every form of action, by 
which the lessor may seek to assert the rights reserved 
or promised to him in his lease.' 

If a tenant claims premises adversely to his landlord, 
either for himself or another, his possession from that 
moment becomes tortious and the landlord may treat the 
tenancy as dissolved and regain the possession by an 
action of forcible entrj^ and detainer. This principle 
applies to all who succeed to the possession from or 
through the tenant, — they occupx- the same position and 
are held to the same responsibility.'' 

' Hilboum v. Fogg et al., 99 Mass. 11. 
- Fusselman V. Worthington, 14 111. 185. 



S 1-1:2. 1 • THE PROOF NECESSAliY. 173 



CHAPTER XIII. 

EVIDENCE. 

Section 143. The proof necessary to support the action of forcible 
entry and detainer. 

143. The preof in case of forcible entry. 

144. Wrongful withholding. 

145. In case of unoccupied lands. 

146. Holding over after termination of lease. 

147. Holding under contract of purchase. 

148. Holding after judgment of ouster. 

149. Defective description can not be supplied by parol 

proof. 

§ 142. The proof necessary to support the action of 
forcible entry and detainer. — Declarations of an occu- 
pant of land at the time of entry may be shown to 
explain its character and are admissible in his behalf. ' 

The defendant cannot show an equitable title in him- 
self to the premises.'' 

Evidence to disprove the title of the complainant in 
forcible entry and detainer is irrelevant and inadmissible, 
title not being in issue,' 

On the trial of cases in forcible entry and detainer, 
when a demand is required, it must be proved to have 
been made as the statute requires on the trial, to entitle 
plaintift' to recover." 

1 Croflf V. Ballinger, 18 111. 300. 
' Taylor v. White, 1 T. B. Mon. (Ky.) 37. 
'' Fortier et al. v. Ballance, 5 Oilman (111.), 41. 

^ Foss V. Foss, 3 Bradv?. 411; Wheelan v. Fish, 3 Bradw. 447; Leh- 
man v. Whittington, 8 Bradw. 374. 



174 PEOOF IN CASE OF FOECIBLE ENTEY. [§ 143, 

In a case where the demand was defective, it was 
claimed by the plaintiff that, by appearing before the 
justice of the peace and contesting the case on its merits, 
the defendant waived any defect in the demand, and that 
it was too late to take the objection on appeal. The 
court held, that the objection was not of a dilatory char- 
acter. Until such demand was made, the defendant was 
not guilty of forcible detainer, under, the statute. The 
proof of the demand was an essential part of the plaint- 
iff's case, as much a^ proof of tenancy ; and if no such 
demand was mad,e, the defendant was not guilty.' 

iJ 143. The proof in case of forcible entry. — The 

evidence necessary to support the action of forcible entry 
and detainer will vary to some extent, according to the 
facts of each particular case arising under the statute. 

First — To support the action under the first clause of 
Sec. 2, Chap. 57, of the statute in relation to forcible 
entry and detainer, it is necessary to prove — 

a — That the plaintiff had the actual and exclusive pos- 
session of the premises claimed, at the time of the entrj'' 
or invasion charged. 

As to what will constitute a sufficient actual possession 
within the meaning of the statute, see chapter where 
the law and the cases on this subject are fully considered. 

The following cases, coming directly under this clause 
of the statute, are here cited :° 

• ' Seem v. McLees, 34 111. 193; Mann v. Brady, 67 111. 95; Thompson 
V. Sornberger, 59 111. 336. 

'>■ Allen V. Tobias, 77 111. 169; Huftalin v. Misner, 70 111. 305; Brooks- 
V Bruyn, 18 111. 539; Hardisty v. Glenn. 33 111. 63; Fairman v. Beal, 
14 111. 344; Pearson v. Herr, 53 III. 144; Smith v. Hoag, 45 111. 350; 
Crbff T. Fallinger, 18 111. 300. 



§ 143.] PROOF IN CASE OF FOKCIBLE ENTRY. 175 

h — That defendant invaded that possession by making 
a forcible entry. But actual force need not be proven, 
as any entry which is against the will of the occupant, 
is forcible within the meaning of the statute.' 

c — That the possession so taken is withheld by the 
defendant. 

It is necessary to prove the withholding by the defend- 
ant, because if he does not withhold the premises,, he has 
nothing he can I'estore to the plaintiff, and the latter can 
take possession without process of law. 

Under this clause of the statute, a demand of posses- 
sion before bringing suit, would seem, upon principle, 
unnecessary, the defendant being a trespasser and his act 
unlawful. The principle is the same as in replevin, 
where a part}? comes into possession of property by 
his own wrongful act, he is not entitled to a demand 
before an action can be brought against him. 

The statute specially requires a demand for possession 
in certain cases enumerated, and does not require that a 
demand shall be made in the case above mentioned. 
The inference, therefore, is, that a demand in this case 
is unnecessary. 

And in Missouri it is held, that "unless the original 
entry is unlawful, it will be necessary to prove a 
demand," thus implying that no demand is necessary 
where the original entry is unlawful.'' 

But the Illinois cases are silent as to this point, except 
th.&t in Huftalin v. Misner, 70 111. 205, the court refused 

' Atkinson v. Lester, 1 Scam. 407; Smith v. Hoag, 45 111. 350; CroflE 
V. Ballinger, 18 111. 300. 
^Prehmanv. Stifel, 41 Mo. 184. 



176 WEONGFUL WITHHOLDING. [§§144, 145. 

to admit that any demand was necessarj^ in this class of 
cases. 

§ 144. Wrongful withholding — Still, it is the usual 
and perhaps safer course, to make a formal demand 
before bringing the action, and at the same time it is 
easier to prove a withholding, a demand having been 
made. 

Second. To sustain the action for the second statutory 
cause, where a peaceable entry is made and possession 
wrongfully withheld, it is necessary to prove — 

a — That the plaintiff is entitled to the exclusive posses- 
sion of the premises. 

h — That the defendant obtained peaceable possession 
thereof. 

c — That demand was made for possession as required 
by the statute. 

(1 — That possession was withheld after such demand. 

§ 145. In case of unoccupied lands Third. To sus- 
tain the action in case the entry was made into vacant 
and unoccupied land, or tenements without right or title, 
it is necessary to prove — 

a — That the lands were vacant or unoccupied.' 

h — That plaintiff has such interest in the premises as 
entitles him to possession of the same, as it is presumed 
in law that he who has title of vacant lands has posses- 
sion. 

c — That defendant entered into possession of the prem- 
ises, while so vacant or unoccupied, without right or title 
thereto. 

' McCartney v. McMullen, 38 111. 337; Hassett t. Johnson, 48 111. 69. 



§ 146. J IIOLDINti OVER AFTBE TERMINATION. 177 

Formerly ejectment was the only remedy, as it was 
held that forcible entry and detainer would not lie where 
plaintiff had not the actual possession at the time of the 
entry by the defendant. 

To provide a more convenient remedy, this statute was 
passed. 

ISTo demand for possession, before, bringing suit, is 
required by the statute, and for reasons above given, 
none would seem necessary, 

cl — That defendant unlawfully withholds the possession 
of the premises. 

Whoever has the actual possession of land, claiming the 
fee, is presumed to have it until, the contrary appears, 
and may maintain an action for the invasion of the pos- 
session against any one but him who has the legal title 
and right of possession. 

But whoever has the title of unoccupied land is deemed, 
in law, to be in possession for all purposes in defense or 
protection of his rights. So that forcible entry and 
detainer can be maintained by the rightful owner against 
one making entry into unoccupied lands or tenements 
without right or title. But if A. takes possession, law- 
fully, of previously unoccupied lands, claiming title 
thereto, and B., who also claims title, invades A.'s pos- 
session, and it appears that Aj entered in good faith, 
with intention of making improvements, B. can not 
maintain forcible entry and detainer against A., even if 
he has the better right.' 

g 146. Holding over after termination of the lease. 
— Fourth. To sustain the action of forcible entry and 

' Brooks V. Bruyn, 18 111 539 
12 



178 HOLDING UNDEK (;OKTEACT. [ § 14T. 

detainer under the fourth statutory cause, it must be 
proven — 

a — That the relation of landlord and tenant existed 
between the plaintiff and defendant. 

h — That the landlord is entitled to possession of the 
premises. 

c — That the tenancy has been terminated b}^ its own 
limitation, conditions or terms, or by notice to quit or 
otherwise. 

d — That the demand for possession has been made (if 
required). 

But where the tenancy has been terminated by notice 
under sections 5 and 6, Revised Stat. chap. 80, no demand 
is necessary. 

e — That the premises are withheld b}^ defendant after 
the determination of the tenancy and demand for posses- 
sion, if demand is required. 

§ 147. Holding under contract of purchase. — Fifth. 
To sustain this action under the filth cause named in the 
statute, it is necessary to prove — 

a — That plaintiff sold the premises to the defendant 
by agreement to purchase, and that defendant took pos- 
session under this agreement. 

h — That defendant has failed to comph" with the agree- 
ment, before receiving a deed for the premises. 

c — That demand in writing has been made by the 
plaintiff for the possession of the premises.' 

d — That the plaintiff is entitled to the possession of 
the premises. 

' Lesher v. Sherwin, 86 111. 421. 



§ 148.] HOLDING AFTEE JUDOMEHT. 179 

e — That defendant withholds possession of the prem- 
ises after the said demand. 

Where a vendor brings an action against the purchaser 
to recover possession for non-compliance with the con- 
tract of sale, it will be sufficient to show that the defend- 
ant, at the time the suit was brought, was in possession 
by himself or by others holding under him. 

§148. Holding after judgment of ouster Sixth. To 

sustain the action of forcible entry and detainer under the 
sixth statutory cause, it must be shown in proof — , 

a — That plaintiff is a purchaser at a judicial sale, or 
otherwise, of the premises in question. 

Ij — That the premises have been conveyed by a grantor 
in possession, Qr sold under a judgment or decree of court 
in this state, or sold b\' virtue of a mortgage or deed of 
trust. 

c — That the time for redemption, if any allowed, has 
expired. 

d — That demand in writing for possession has been 
made on the defendant. 

e — That the party in possession refuses oi; neglects to 
surrender the same.' 

To recover in this action under the act of 1861, against 
one who remains in possession after his rights have been 
divested by judicial sale, the plaintiff must show a valid 
judgment, execution and deed. 

Inasmuch as the title to the property in question is 
not in issue in the action of forcible entry and detainer, 
a deed can not be introduced to show title, but can be 
introduced to show extent of possession — that is, where 

' Wheelan v. Fish, 3 Bradw. 447. 



180 DEFECTIVE DESCRIPTION. [§ 149. 

actual possession of part of the premises is sJiown to be 
in the plaintiff, he may then introduce his deed to the 
premises for the purpose of showing that he possessed all 
of the tract, or to show the extent of his possession. 

So, deeds can be used in evidence to show boundaries.' 

And deeds may also be introduced to show the animus 
or intention with which a party enters, in connection 
with possession and improvement of a farm to which a 
•wood lot is joined, the latter being the land in contro- 
versy." 

§ 149. Defective description cannot be supplied by 
parol proof. — If the description of the premises as set 
forth in the complaint, is defective, it can not be supplied 
by parol proof.' , 

And proof must be made of the holding over by the 
tenant, in a case of termination of the tenancy. Where, 
on the trial of an action of forcible entry and detainer, 
it was proven tliat the relation of landlord and tenant 
existed between the parties, and the possessioil of the 
tenant and the payment of rent up to a time named; 
that a written notice had been served on defendant to 
quit and deliver up possession of said premises to plaint- 
iff ; but there was no evidence to show that, after the 
expiration of the time named in said notice, the defend- 
ant continued in possession of the premises, or neglected 
or refused to surrender the same to the plaintiff ; it was 
held, that the gist of the action is the wrongful holding 
over by the tenant after the termination of the tenancy ; 

' Johnson v. Bautpck, 38 111. Ill; Harmon v. Larned, 58 la. 169. 
- Huftalin v. Misner, 70 111. 205; Brooks v. Bruyn, 18 III. 539. 
'Pearson v. Herr, 53 III. 145; Schaumtoeffel v. Belm, 77 111. 569. 



§ 149.] DEFECTIVE DESCEirXION. 181 

and it is manifest that, in the absence of the proof of 
such holding over, he can not recover.' 

And in an action of forcible entry and detainer, under 
the statute,, by a purchaser at a foreclosure sale against 
a mortgagor iii possession, the plaintiff must prove, not 
only a demand for possession of the premises, but also, 
that the defendant refused or neglected to surrender pos- 
session after such demand.^ 

Evidence may also be given b}^ a vendor, in an action 
of forcible entry and detainer, against the vendee, to 
recover possession, of a written agreement to sell, and of 
a tender of a deed, to show that defendant has failed to 
comply with the agreement." 

In an action on an appeal bond, given in an action of 
forcible entry and detainer, conditioned to pay all rent 
due and to become due, the original lease is proper evi- 
dence to show what rent should be paid. 

And in a similar action, a witness was allowed to tes- 
tify to what rent he paid for a lot, about one-half the 
size of the one involved in the detainer suit, and adjoin- 
ing it, as a circumstance to go to the jury, tending to 
establish the rental value ; but the correctness of this 
ruling is doubtful.' 

xl written lease provided, that the tenant should sur- 
render the demised premises at the expiration of the 
lease, and a co-temporaneous parol agreement was made 
to the effect, that the lessee might remain in the occu- 

' Murphy v. Dwyer, 11 Bradw. 247. 
'Hersey v. Westover, 11 Bradw, 197. 
^Lesher.v. Sherwin, 86 111. 431. 
♦ Clapp et al. v. Noble, 84 III. 63. 



182 'DKFECTIVE DESCEIPTION. [§ 149. 

pancy of the demised premises after the expiration of 
the lease, but as tenant from month to month. In this 
case, the parol agreement, made at the same time as the 
written lease, under seal, and being in reference to the 
same subject matter, must be regarded as merged into 
the writing and cannot be admitted in evidence." 

Matters of evidence. — Where the execution of a written 
instrument sued on had been proved and other evidence 
adduced in relation to it, it was a proper exercise of dis- 
cretion for the court to permit the counsel for the plaintiff 
to read it to the jury for the first time in his closing 
argument." 

In regard to the animus with which a party enters 
into the possession of premises, and in regard to the 
question whether the entry was made against the will of 
the occupant, it is competent to prove the declarations 
of dissent or opposition, of the party in possession, to the 
entry of the other party, made on the occasion of the 
entry, and the jury have a right to consider such dec- 
larations as part of the res ye-stae, in considering their 
verdict.' 

' Keegan et al. v. Kinaaire, 12 111. App. 484. 
-' Berrlngton v. Casey, 78 111. 317. 
^Ci-off V. Balllnger, 18 III. 303. 



150.] STATUTOKV PROVISIONS. 183 



(!II AFTER XIV. 

THE JUDGMENT IN FORCIBLE ENTRY AND DETAINER. 

Section 150. Statutory provisions. 

151 . Judgment unauthorized if description indefinite. 
153. Judgment conclusive as to right of possession. 

153. Circuit court can render judgment on dismissal of 

appeal. 

154. The effect of a judgment in forcible entry and 

detainer, 
loo. Conclusive only as to matters legally determined. 

156. Judgments by confession were heretofore sustained. 

157. They are nov? invalid. 

158. Judgments confessed only for bona fide debt due. 

159. Against whom judgments may be entered. 

160. Judgments as to sub-tenants. 

161. Judgments as regards the wife of defendant.. 

§ 150. Statutory provisions. 

Pla'mtiif Entitled to Whole Preinises — .Judginent — Ex- 
ecution . 

Sec. 13. If it shall appear on the trial that the plaint- 
iff is entitled to the possession of the whole of the prem- 
ises claimed, he shall have judgment and execution for 
the possession thereof and for his costs. 

Plaintiff Entitled to Part — Judgment. 

Sec. 14. If it shall appear that the plaintiff is entitled 
to the possession of only a part, of the premises claimed, 
the judgment and execution shall be for that part only 



IkH judgment unauthorized. [§ 151. 

and for costs; and for the residue, the defendant shall 
be found not guilty. 

Dismissal as to Part — Judgment as to Part. 

Sec. it. The plaintiff may at any time dismiss his 
suit as to any one pr more of the defendants, and the 
jury or court may find any one or more of the defend- 
ants guilty and the others not guilty, and the court shall 
thereupon render judgment, according to such finding. 

Won-sait. 

Sec. 16. If the plaintiff is non-suited or fails to prove 
his right to the possession, the defendant shall have 
judgment and execution for costs. 

§ 151. Judgment unauthorized if description indefi- 
nite. — A judgment in forcible entr}' and detainer is not 
authorized unless the description of the premises is sulfi- 
ciently definite to locate the premises. For instance, a 
complaint set forth that the defendant on, etc., came into 
possession of the following described premises, under the 
contract of purchase from affiant, to-wit : 

"A part of the S. W. i of the S. E. i in Section 1, 
etc.'" 

And judgment was rendered for the possession of the 
said land, whereupon the Supreme Court held : 

"The statute requires that the complaint shall particu- 
larly describe the lands, tenements or possessions in ques- 
tion, and that the justice shall keep a record of the pro- 
ceedings had before him. If this writ should beheld 
good, then, by parity of reasoning, a writ which should 
command the officer to make restitution of a part of a 



§§ 152, 153.] .lUDGMENT CONCLUSIVK. 185 

section of land, without other description than such as 
designated the section of land, would likewise be good. 
It was the manifest policy of .the statute not to authorize 
any such rambling process,, and, upon general principles, 
that in question, was void for, uncertaint}'." ' 

§ J53. Judgment conclusive as to right of pos- 
session. — A verdict and judgment of restitution in an 
action of forcible .entry and detainer for a tract of land, 
part of a larger tract, all of which is claimed bj' the 
defendant under the same alleged title, is conclusive, in 
a subsequent ejectment, between the same parties upon 
the question of right of possession at the date of the 
forcible entry, not only as to the tract actually detained 
by the defendant but as to the Avhole." 

But judgment for the defendant is not sufficient to bar 
the second suit without extrinsic proof that the caus6 of 
action was the same in the prior as in the second suit. 
AA^here the only, demand of possession shown appears to 
have been made after the determination of the first suit, 
the judgment for the defendant therein can not be held 
a bar to a second action brought after such demand;' 

The successful party should have judgment for costs. ^ 

§ 153. Circuit Court can render judgment on dis- 
missal of appeal. — "Where judgment was rendered against 

' Haskins et al. v. Haskins, 67 III. 4.")4; Hughes v. Streeter, 24 111. 
647; Shaokelfoi-d v. Bailey, 35 111. '387. 

- Bradley v. W^est, 68 Mo. 69. 

'Davis V. Lennen, 24 N. E. Rep. 885; Doyle v. Hallam, 31 Minn. 
515; Star v. Stark, 1 Sawy. 375. 

*lnd. B. & W. R. Co. v. Allen, 113 lud. 308; Walker v. McGill, 40 
Ark. 88; King v.Lawson, 98 Mass, 309. 



186 EFFECT OF A JDDftMEXT. [§ 154r. 

the defendant by a justice of the peace, he appealed the 
case to the Circuit Court and afterwards dismissed his 
appeal. The Circuit Court thereupon rendered judgment 
that the plaintiif in the action recover possession and 
awarded a writ of possession. On objection that the dis- 
missal of the appeal operated to remand the cause to the 
justice and the Circuit Court had no power to render the 
judgment it did, it was held, that the Circuit Court, 
having jurisdiction of the subject matter and of the 
parties, had jurisdiction to render the judgment. 
Whether the judgment was erroneous or not, it was not 
void; it was valid and binding in all collateral proceed- 
ings until reversed.' 

S 154. The effect of a judgment in forcible entry 

and detainer A judgment in an action of forcible 

entry and detainer decides and is conclusive only as to 
matters legally determined by the said judgment. The 
object of an action of ejectment is to try the title to 
property, while in an action of forcible entry and detainer 
the immediate right of possession is all that is involved, 
and the title cannot be inquired into for anv purpose." 

"A judgment in an action of forcible entry and 
detainer cannot be pleaded as a bar to an action of eject- 
ment for the reason that the questions involved in the 
two proceedings are different. In a proceeding for 
forcible entry and detainer, it is the mere naked posses- 
sion, in fact, which is^ put in issue and of course the 

' Smith V. The People, 99 111. 445. 

- Riverside Co. v. Townshend et al., 120 111. 9; Mattocks v. Helm, 
•5 Litt. 185; 15 American Decisions, 64: Fish v. Benson, 71 Cal. 428; 
Williams v. Newcomb, 16 Mo. 185; Harvie v. Turner, 46 Mo. 444; 
Dale V. Doddridge, 9 Xebr. 138. 



§§ 155, 156. J C0NCLUSIV15 ONLY, p:tc. 187 

judgment in such case cannot 'be evidence in an action of 
ejectment, in which the right of entry is the point in 
issue. ~ 

" Nor does the judgment furnish evidence of aright in 
the plaintiff to recover in an action for mesnfe profits." 

§ 155. Conclusive only as to matters legally deter- 
mined. — " But such a judgment is conclusive and is final 
and binding as to all questions actually and necessarily lit- 
igated and determined. It is evidence of the right and 
extent of the plaintiff's possession and the defendant is 
estopped from contesting the same. ' ' 

" So, also, in the said statutory classes of actions called 
by this name, the judgment is conclusive as to the exist- 
ence of the relation of landlord and tenant between the 
parties and as to the defendant's wrongful holding over. 
These issues can not be again tried under color of a suit 
in chancery." ' 

A judgment determines only the right of possession 
and it does not bar the tenant from claiming the rent as 
purchaser of the landlord's title under a trust deed.^ 

§ 156. Judgments by confession were heretofore 
sustained. — It was heretofore held in this State, that a 
lease containing a warrant of attorney to confess judg-" 
ment in forcible detainer is sufficient to authorize such 
confession, if duly executed by the lessee, although 
executed in the name of the lessor by liis agent, without 
proper authority." 

'Casey v. McFalls, 3 Sheed, 115; Mitchell v. Davis, 23 Cal. 381; 
Norwood V. Kirby, 70 Ala. 397; Black on Judgments, 663. 
'Carson et al. v. Crogler, 9 III. App. 83. 
'Johnson v. Crane et al., 33 111. App. 3GG. 



ISS THEY ARK NOW INVALID. [§ 157. 

But the later and correct view regarding the entry of 
judgments by confession is, that the practice is unauthor- 
ized; the doctrine being, that a judgment may be entered 
by filing a cognovit for rent due, on a power given in a 
lease. ' 

But the court had no power to enter the judgment by 
confession, in this form of proceeding, on the warrant of 
attorney contained in the lease, and the judgment is 
therefore coram non judice and void." 

§ 157. They are now invalid. — The practice of enter- 
ing judgment by confession upon a warrant of attorney 
Avithout pi'ocess in actions for tort, is not allowed b}' the 
common law; it is only allowed in respect to debts." 

The entry of a judgment by confession upon warrant 
of attornej' contained in a lease is impliedly prohibited 
by the particular mode of proceeding prescribed by the 
forcible entry and detainer act." 

A judgment entered by confession under a power of 
attorney and cognovit in a forcible detainer suit is 
unauthorized by law and void. The court acquires no 
jurisdiction of the person of the defendant by the filing 
of the cognovit. The confession of judgment upon a 
warrant of attorney in an action of forcible detainer in a 
court of record is as irregular and unauthorized as it 
would be in a justice court. Such court of record does 
not proceed in forcible detainer by virtue of its power as 
a court of general jurisdiction, but derives its authority 

• Little et al, v. Dyer, 35 111. App. 85. 
« Wilier V. French, 37 111. App. 76. 
» French v. Wilier, 126 111. 611. 
MViller V. French, 37 111. App. 76. 



§§ 158, 159.] JUDGMENT CONFESSED. 189 

wholly from the statute and in such proceeding is to be 
treated as a court of special and limited jurisdiction.' 

§ 158. Judgment confessed only for bona fide debt 
due. — The entry of a judgment by confession upon a 
warrant of attorney contained in a lease is impliedh' pro- 
hibited by the particular mode of proceeding prescribed 
by the forcible entry and detainer act. Causes for the 
recovei'y of possession of real estate under the forcible 
entry and detainer act are based not upon a debt but a 
tort. The gist of the actioii is either a forcible en'tr}- or 
wrongful detainer. The plea is not guilty. The statute 
authorizing confessions of. judgment in this State reads : 
" Any person for a debt bona fide due may confess judg- , 
ment by himself or attorney duly authorized, without 
process;" the statute limiting this right to cases of a 
debt. The law-making power has never giyen sanction 
to confession of judgment in forcible' entry and detainer 
cases; public policy is against it and courts should not 
sanction such an innovation.^ 

§ 159. Against whom judgments may be entered 

Sec. 15, chap. 57, of the Revised Statutes, authorizes 
the bringing of forcible detainer by the landlord against 
the lessee, with others in whom the actual possession is 
divided, at the commencement of the suit. Judgment 
may be entered against the lessee, when sued, with his 
sub-tenant, though be is out of the actual possession.^ 

' French v. Wilier, 126 111. 611. 
■^ Burns v. Nash, 23 111. App. SSS. 
"Espen etal. v. Hinohliflfe, 131 111. 468. 



19(» .lUDOMEXT AS TO SUB-TENANTS. [§ 160. 

X judgment against a tenant is conclusive against the 
landlord if the latter interposed in aid of the tenant in 
his defense, or if the landlord had notice of the pendency 
of the suit and full opportunity of making a defense 
thereto.' 

Where a landlord recovers a judgment in an action of 
forcible entry and detainer against his tenant, a sub-ten- 
ant who was not a party to the judgment cannot be put 
out of his possession under the writ unless he entered 
jyeiulente lite. 

§ 160. Judgment as to sub-tenants. — A sub-tenant is, 
by the express provision of the statute, liable to this 
action, and it has been so held by the court. ° 

A writ of possession can only go against the party to 
the suit or against those who came into possession under 
him since the commencement of the suit.' 

Where there are several defendants and a portion of 
them are not proven to be in possession, the judgment 
against all is erroneous, as the judgment is entire and 
indivisible." 

In Kansas, the otficer has no right to remove a party 
who does not hold under the defendant in the writ." 

The objection, that the wife ought to have been 
brought into the Circuit Court on appeal, is not good. 
She was no party to the judgment before the justice; the 

'Thomsen et al. v. McCormick, 136 III. 135. 
• Leindecker et al. v. Waldron, 52 111. 288. 
3 Brush Y. Fowler, 36 111. 53. 
■* Godard et al. v. Liebermann, 17 111. App. 366. 
' Wallace v. Hall, 22 Kas. 271. 



§ 161. J JUDGMENTS AS REGARDS THE WIFE. 191 

judgment of the justice against the husband alone dis- 
posed of the complaint against her. ' 

Judgment against the husband alone is sufficient to 
oust both husband and wife, although summons were 
served on both.'' 

§ 161. Judgments as regards the wife of defendant. 

— Where the wife was entitled to possession of the prem- 
ises in question and held the same as heir, in common 
with other heirs of the former owner, the possession of 
her husband, if any, was in the right of his wife and the 
action should have been against both husband and wife ; 
and the result of -a judgment against him alone would be 
the separation of husband and wife, or the ousting of the 
one who had the right of possession, which in either case 
could not be done." 

In a case where the wife claimed to own the property, 
the court said : 

The house was the dwelling house of the husband and 
not that of his wife, who was but a member of a family 
of which he was the head. The possession of the differ- 
.ent members of the family was dependent on his rights, 
so that when the owner of the land obtained a judgment 
against him in forcible detainer for restitution of the 
premises, that house ceased to be his dwelling house; 
and that by termination of his rights, all incidental 
rights of the wife terminated also.* 

' Bell V. Bruhn, 30 111. App. 300; Fa.bbri v. Cunlo, 1 III. App. 240; 
Wells V. Reynolds, 3 Scam. 111. 191; Wilderman et al. v. Sandusky, 
15 111. 59. . 

^ Bell V. Bruhn, 30 111. App. 300. 

^Cofoid V. Bishop, 11 111. App. 117. 

' Ennis v. Lamb, 10 111. App. 447. 



192 .lUDGJIENT AS EEUAKDS THE WIFE. [§ Ifil. 

Where the wife was in the house of her husband by 
virtue alone of the marriage relation, after a decree 'of 
divorce, it was held that her rights to any and all parts 
of the house Avill cease ; and if she continues to remain 
thereafter against the will of her husband, she will be a 
mere intruder and is not a tenant at sufferance, nor 
entitled to notice to quit.' 

' Brown v. Smith, 8!:! 111. 391. 



§§162, 163.] DEFINITION or TERM. 193 



CHAPTER XY. 
RESTITUTION. 

Section 162. Definition of term. 

163. Restitution — Concurrent remedies. 

164. Jury must sign verdict. 

165. Duty of officer in executing the writ. 

166. Unknown sub-tenants. 

167. Circuit court on appeal may remand case to justice 

to issue writ. 

§ 163. Definition of terra 'Restitution originally 

was placing back or restoring articles which have been 
lost by jettison ; this is done where the remainder of the 
cargo has been saved at the general charge of the' owners 
of the cargo, but when the remainder of the goods are 
afterwards lost, there is not any restitution. This was 
the maritime law signification of restitution, but in mod- 
ern practice and in modern la'w it means the return bf 
something to the owner of it or to the person entitled to 
it. So in the use of the term in regard to forcible entry 
and detainer it means the restoring or the returning of 
the possession of the premises in question to the party 
entitled to it. 

, § 163. Restitution — Conciivi'ent remedies The 

statute provides : 

' ' If any party shall feel aggrieved by the verdict of 

the jury or decision of the court, upon any trial had 

under this act, such party may have an appeal, to be 

taken to the same courts, in the same manner and tried 

13 



194 .TUEY ML^ST SIGN VERDICT. [ §§ 164, 165. 

ill the same way as appeals are taken and tried in other 
oases. Provided, the appeal is prayed and bond is filed 
within five days from the rendition of the judgment, and 
no writ of restitution, shall be issued in any case until 
the expiration of said five days." 

A person entitled to the possession of lands sold under- 
a judgment or decree, having obtained his deed" is 
entitled to have two concurrent r^medies : (1) a writ of 
assistance issuing from the court rendering the judgment 
or decree, or (2) an action of forcible entry and detainer 
under the statute.' 

Awarding a writ of restitution upon the dismissal of 
an appeal in a case of forcible entry and detainer is not 
error. " 

In executing the writ of possession the officer may 
enter the premises, if necessary , for the purpose of re- 
moving the defendant and his property, but in doing so, 
if he uses unnecessarj' force and causes unnecessar}' dam- 
age he will be liable for his misconduct." 

§ 164. Jury must sign Terdict. — If the defendant is 
found guilty upon the trial, the judge will award restitu- 
tion of the premises which have been forcibly entered or 
forcibly held, with the costs and expenses of the proceed- 
ing, and the sheriff or constable is thereupon directed to 
cause the complainant to be put in full possession of the 
premises. In the states of Illinois and Indiana, all the 
jury are required to sign the verdict.'' 

§ 165. Duty of officer in executing writ In execut- 

' Brackensieck v. Vahle et al., 48 111. App. 313. 

'' Harlan v. Scott, 2 Scammon (111.), 65. 

3 Miller v. White, 80 111. 580. 

" Bloom V. Goodner, 1 111. 63; Test v. Devers, 3 Blaokf . 80. 



§ 166. J ' UNKNOWN SDB-TKNANTS. 196 

ing the Nvrit of possession, the officer may enter the 
premises forcibly, if necessary, and having entered, it is 
his duty to remove all property as well ais the person of 
the defendant, doing as little damage and using as little 
force as possible in order to effect that purpose. 

§ 166. Unknown sub-tenants ^Where a tenant of the 

demised building secretly sub-lets the same to another 
person living with him, without the knowledge of the 
landlord, and both occupy the premises as before, and 
such sub-lessee, when examined as a witness on "the trial 
of an action of forcible entry and -tletainer, against the 
original lessee, makes no claim to the property, the sub- 
tenant, after judgment for possession, will not be allowed 
to interfere and set up her rights there for the first time, 
but will be bound by the judgment.' 

Appellee claimed to be the owner of the house situated 
on appellant's land and appellee's husband took from the 
appellant a lease, and judgment of ouster was afterAvards 
rendered against hiiii as tenant of the appellant; held, 
that he must be considered as head of the family and a 
warrant of restitution was properly served against him 
and all occupying with him. And, notwithstanding that 
appellee might have been the owner of the house, she 
could not retain possession of appellant's land in defiance 
of the writ of restitution." 

In the absence of any showing to the contrary, one 
not especially named in the writ of possession, but in the 
possession of the premises when the action of forcible 

' Miller et al. v. White, 80 lU. 580. 

- Ennis v. Lamb, 10 111. App. 447; Johnson v. Fullerton, 44 Pa. 
St. 466. 



196 CIECUIT COUET MAY EEMAND. [§ 167. 

entry Avas brought, will be presumed to have occupied 
the land pendente lite and be a proper subject for removal 
under the writ. ' 

§ 167. Circuit Court ou appeal may remand case to 

justice to issue writ Where the Circuit Court affirms 

the judgment of the justice of the peace, it is not error 
to remand the cause to the justice to issue the writ of 
restitution." 

"Where one co-parlner dispossessed another, on a finding 
in an action for forcible entry and detainer in favor of 
the latter, he can be_restored to his joint possession by 
the writ of restitution.^ 

• Thomasson v. White, 6 Baxter (Tenn.), 148. 

« Murry v. Harper, 3 Ala. 374. 

^Robertson v. Robertson, 3 B. Mon. (Ky]) 235. 



§§ IfiS, J.69.J TENANT MAY ABANDON. 19'i 



CHAPTER XVI. 

THE TENANT'S REMEDIES. 

Section 168. Tenant may abandon premises for landlord's fault. 

169. May sue for breach of contract. 

170. No relief against rent except by stipulation in lease. 

171. Defenses available to the tenant. 

172. Test questions for trial. ' 

173. Tenant's right to abandon premises. 

§ 168. Tenant may abandon premises for landlord's 
fault. — Where a landlord has agreed in his lease to repair 
the demised premises and does not do so, the tenant has 
several remedies ; he may abandon the premises. ' 

§ 169. May sue for breach of contract He may sue 

the landlord for damages for a breach of his covenant to 
repair.'' 

Or the tenant may make the repairs agreed to be made 
by the landlord and deduct the cost of the same from the 
rent. ' 

He may abandon the premises if, by reason of the 
failure of the landlord to make repairs, as agreed, the 
premises are rendered untenantable." ■ 

Eent in advance cannot be recovered in the absence of 
an agreement to that effect.' 

' Bissell V. Lloyd et al., 100 111. 314^ 
- Block V. Ebner, 54 Ind. 544. 
"Wright V. Lattin et al., 38 111. 298. 
^ Prescott V. Overstatter, 85 Pa,. St. 534. 
» Heissler et al. v. Stose, 38 III. App. 39, 



198 XO EELIEF AGAINST EENT. [ §§ 170, 171. 

The original landlord cannot maintain an action against 
a sub-tenant to I'ecover rent due from the original lessee. ' 

As a general rule, a tenant has no relief against an 
express covenant to pay rent, unless he has protected 
himself bjr stipulation in the lease. ^ 

§ 170. Ko relief against rent except by stipulation 

iu the lease In the absence of a stipulation in the lease 

to the pontrarv, a tenant is bound to paj' the stipulated 
rent, although the building on the premises is consumed 
by fire when In his possession.' 

A clause in a lease, that a re-entry may be made with- 
out the same "working a forfeiture of the rent to be 
paid," refers to the rents to be paid after the re-entry 
by the lessor, and the tenant is liable still to pay the rent 
for the premises ; yet as against the same, he is entitled 
to credit for the rent received by the lessor after such 
re-entry." 

g 171. Defenses available to the tenant. — The only 
rule to be followed in defending a suit for forcible entr}'' 
and detainer, is to examine the requirements of the statute 
and the rules of our practice, step by step, and see if 
they have been complied with in the case at bar. 

As 'to the summons, it makes no difFerence whether it 
is defective or not', if the defendant appears in court and 
defends the suit. In such case he can not complain that 
the summons was defective.' 

' Sexton V. Chicago Storage Co. et al., 30 111. App. 95. 

'Smith et al. v. McLean et al., 23 111. App. 451. 

»Stow V. Russell et al., 36 111. 18. 

■•Gi-ommes et al. v. St. Paul Trust Co. et al., 47 111. App. 568. 

'Seem v. McLees, 24 111. 193; Fink et al. v. Disbrow, 69 III. 76. 



§ 172. J TEST QUESTIONS. 199 

§ 172. Test questions. — But many questions arise 
which deserve most careful examination on part of the 
defendants — for example : 

Has the suit been commenced by the ,party entitled to 
the possession? 

Has the suit been commenced against one tenant when 
the letting was to twp or more? 

Has the suit been commenced by a tenant in common 
against his co-tenant, when the plaintiff is not entitled 
to the exclusive possession of the premises? 

Did the relation of landlord and tenant exist between 
the parties? If so, has that relation been terminated,, 
and when and how? 

Did the plaintiff, prior to the entry charged, disclaim 
to defendant all interest in the premises? Is the defend- 
ant, in fact, on the premises? 

In cases where demand of possession is required, was 
the demand made for possession of the premises, and was 
that demand what the law requires? Was it served as 
the statute provides? 

And on this question special attention is called to the 
case of Dor an v. Gillespie, 54 111. 366, where the doc- 
trine is fully laid down, that the defendant is not guilty 
' in this action until the demand has been made as required ; 
and defects in the demand are riot waived by the defend- 
ants appearing and going to trial, although the defects in 
the summons may be thus waived. 

Again, have the premises been described with reason- 
able certainty in the complaint? Has the proof on the 
trial sustained the description given in the complaint? 



200 TEST QUESTIONS. [ § 172. 

Has the description in the complaint included the entire 
premises in question? 

Do the premises described in the complaint correspond 
with those described in the demahd, in cases where demand 
was necessary? 

Such inquiries and others suggested by the facts of each 
particular case arising under the various clauses of the 
statute, will lead to the detection of weaknesses in the 
plaintiff's case, that will prove fatal to it in many 
instances. 

In an action of forcible entry and detainer, the defend- 
.ant may prove, that prior to the entry the plaintiff dis- 
claimed to him all interest in, the premises, which, if 
proven, constitutes a defense to the action.' 

Estoppels in pais, affecting permanent interest in land, 
can only be made available in courts of justice and can- 
not be used as a defense in an action of forcible entry and 
detainer, "" 

Increased Rent — Tenant's Duty. 

Where a tenant was notified by the landlord before 
the expiration of his term that he could have the premises 
no longer, unless he took the entire premises and paid his 
certain price foi- the same, as I'ent, and the tenant held 
over and occasionally did use the entire premises, but 
objected to the new terms sought to be imposed ; he 
became liable to pay for the whole premises, it being 
presumed that he finally acceded to the new terms 
imposed." 

' Dudley et al. v. Lee, 39 111. 339. 

•^ B & O. & C. R. R. Co. V. 111. Cent. R. R. Co., 187 111. 9. 

» Griffin v. Knisely, 75 111. 411. 



§ 173. j, EIGHT TO ABANDON PEEMISES. 201 

A notice by the landlord to the tenant, that if he con- 
tinues to occupy beyond the present term he must pay 
increased rent, will not bind the tenant, though he holds 
over, unless he consent to the increased rent. 

Where a tenant has received notice that he must pay 
increased rent if he remains in possession, and expressly 
declines to pay said increase and holds over, the remedy 
of the laiidlord is to oust him from possession. If- he 
permits him to remain, the tenant still refusing to pay 
the increased rent, he can recover only the rent as based 
on the former lease. 

Where a landlord gives notice to his tenant, that if he 
occupies be^'ond the present term he will be required to 
pay an increased rent, the silence of the tenant after 
receiving such notice will be construed into an assent or 
agreement to occupy at the increased rent. But where 
the tenant refused to assent to the increase, no such pre- 
sumption arises.' 

§ 173. Tenant's right ta abandon premises.— But if 

the tenant, having the right to abandon the premises, 
remains in possession for any considerable time after his 
knowledge of the landlord's failure to repair, he thereby 
waives his right to abandon the lease." 

If the landlord agrees to make repairs before the pos- 
session is to be given to, the tenant, the making of such 
repairs is a condition precedent and an entry by the ten- 
ant before the making thereof is not a waiver ; and the 
tenant's entry before the stipulated day is no waiver on 

' Galloway v. Kirby, 9 111. App. 501. 

■ Lunn V. Gage, 37 111. 19; Wright v. Lattin et al. , 38 lU. 393; Keer- 
nan v. Germain, 61 Miss. 498. 



202 EIGHT TO ABANDON PEEMISES. [§173. 

his part, and rent is not recoverable if the tenant elects 
to abandon the contract.' 

Where a lessor rents a room in a building for a store- 
room, undertaking to keep the biiilding, except the par- 
ticular room, in proper repair, and neglects to repair, so 
that the roof of- the building leaks so badly as to render 
the store-room unfit for the use for which it is rented, 
and the lessee leaves the same on that account, the lessor 
will not be entitled to recover rent for th^ store-room for 
the time after it is abandoned.'' 

1 Stohecker v. Barnes, 21 Ga. 430. 
- Bissell V. Lloyd et al., 100 III. 214. 



I 174. j TIME WHEN KEPAIES MADE. 208 



CHAPTER XVII. 
REPAIRS. 

.Section 174. 'Time when repairs made, 

175. The common law rule as to repairs. 

176. The landlord's duties regarding repairs. 

177. What repairs made by tenant. 

178. Damages for personal injury on account of jiremises 

being dangerous. 
] 79. Damages by water. 
^ 1^0. Defective plumbing and the results of sew^er gas. 

Use and Occupation. 

181. When tenants liable for use and occupation. 
183. Actions for rent and for use and occupation. 

183. Set-off and recoupment. 

184. Recoupment against rent. 

185. Set-off ^when allowed. 

186. Damages. 

187. Damages for failing to repair. 

188. Re-entry by landlord. 

"§ I?!. Time when repairs made. — ^Vhen a landlord 
covenants to make repairs and no time is specified in 
which to make them, he must make them within a rea- 
sonable time, so that the lessee may have the benefit of 
them.' 

The law implies, in a lease, covenants against para- 
mount title and against such acts of the landlord as des- 
troy the beneficial enjoyment of the premises. ' 

It is the duty of the tenant, where the landlord has 

' Lunn V. Gage, 37 111. 19. 

- Wade V. Halligan, 16 111. 507. 



204 KULE AS TO REPAIKS. [ §§ 175, 176. 

covenanted to repair the buildings upon the premises, to 
notify him of the need of such repair.' 

But no notice is required if the landlord covenants to 
repair at or before a certain time.'' 

If the lessor covenants to repair before the commence- 
ment of the terra, the making of such repairs is a con- 
dition precedent to the payment of rent.' 

^ 175. The common law rule as to repairs. — The 

lessee was bound, at common law, to make, during his 
term, what are called " tenan table repairs," not "sub- 
stantial, lasting or general repairs, but onlj' such ordinary 
repairs as were necessary to prevent waste and decay of 
the premises. If a window in a dwelling should blow 
in, the tenant could not permit it to remain out, and the 
storms to beat in and greath^ injure the premises, without 
liability for permissive waste ; and if a shingle or board 
on the roof should blow off or become out of repair, the 
tenant could not permit the water, in time of rain, to 
flood the premises, and thus injure them, without a simi- 
lar liabihty. He being present, a slight effort and 
expense on his part could save a great loss ; and hence 
the laAv justl}' casts the burden upon him." 

The duties in respect to repairing may be regulated by 
express agreement, or in the absence of agreement will 
be in accordance with what the law implies from the 
relation of landlord and tenant. 

§ 176. Landlord's duties regarding repairs. — A 

landlord does not insure that nothing exists touching the 

' Wolcott V. Sullivan, 6 Pai^e (N. Y.), 117. 
' Gerzebech v. Lord, 33 N. J. L. 240. 
'Hickmar v. Rayl, 55 InJ. 551. 



§ 176.] DUTIES EEGAEDING EEPAIES. 206 

premises in question that will interfere witb the health 
or comfort of his tenant, nor is he bound to repair, unless 
the lease so provides. ' 

A landlord is not responsible for personal injuries 
caused by a neglect to repair, when the defective con- 
dition of the premises arises during the tenancy.' 

A tenant bound to restore premises in good order, 
"loss by fire, inevitable accident or ordinary wear 
excepted," is obliged to repair a windo\v broken by a 
stone accidentally kicked by a passing team.^ 

A landlord is liable to his tenant in possession for 
injuries caused by him through negligence in making 
repairs.' 

Where the lessee of a store-room in a building under- 
takes to make all needed repairs and alterations in and 
ab6ut such - room, the lessor, by implication, will be 
bound to keep the residue of the building in repair, so as 
to protect such room. ^ 

The legal effect of a covenant in a lease by the lessee 
to keep the demised building in repair at his own expense 
and to deliver it up at the end of his term in as good 
order and condition as when he received it, without any 
exception of loss by fire, is, that in case the building is 
burned, the less6e will rebuild the same, and such loss 
will not even stop the rent until the building is replaced." 

A lease stipulated, that repairs upon the premises were 

1 McCouU V. Herzterg, 33 111. App. 342. 
^ Borman v. Sandgren, 87 111. App. 160. 
^T^ofc V. Scoville Mfg. Co., 43 111, App. 360. 
■•Mitchell V. Plant, 31 111. App. 148. 
' Bissell V. Lloyd et al., 100 111. 314. 
*Ely V. Elyetal.,80111. 532. 



206 DUTIES BEGAEDING EEPAIES. [§170, 

to be made for a certain amount, which were to be paid 
for by the lessee and to be allowed on the accruing rent. 
The mechanic who made the repairs performed work 
above the amount stipulated in the lease, but "upon the 
request of the lessee. Held : that the lessee was liable 
for such excess." 

.A lease for a portion of a building leaves the responsi- 
bility for what is not demised upon the landlord." 

Where a landlord covenants to repair before the term 
commences, but the tenant enters upon the term and 
receives possession before such covenant is performed, he 
cannot abandon the lease and refuse to pay the rent for 
the breach of any other covenant than for quiet enjoy- 
ment.^ 

Where a landlord covenants in a lease to keep the roof 
in good repair, the tenant in an action against him should 
have been permitted to show damages sustained by the 
leaking condition of the roof, and he would be entitled 
to recover in said action all legitimate damages sustained 
by breach of the covenant to repair. His right to recover 
substantial damages is not affected by the fact that the 
tenant had sublet the premises to one who had paid him 
the same rent agreed for in the lease." 

Where a lease binds the lessee to pay rent during the 
term, the rent will not stop while the premises are receiv- 
ing repairs, nor is the tenant relieved from paying rent 
because the premises are injured by accident during the 
term." ' 

' Benjamin t. Heeney et al. , 51 111. 492. 

'-' Payne et al. v. Irvin, 44 111 App. 105. 

3 Wright V. Lattin et al., 38 111. 293. 

* Watson et al. v. Hooton, Exr., 4 111. App 294. 

' Peck V. Ledwidge, 25 111. 109. 



g 177, 178.] EEPATES MADE BY TENANT. 207 

§ 177. What repairs made by tenant-. — As a general 
rule, the occupant of premises is responsible for injuries 
received in consequence of a failure to keep them in 
repair. ' 

Unless there was an express agreement on the part 
of the landlord to repair, the tenant must take the 
premises as he finds them and he cannot recover for 
repairs or damages sustained by reason of the want of 
repair.' 

An agreement b}' the landlord to pay the tenant for 
repairs will not stop the running of the rent while the 
repairs are being made.' 

Where the landlord, in violation of his covenant, fails 
to make repairs, the tenant may ,make them himself, 
charging the expense against the landlord, or sue for 
damages for' breach of covenant^■' 

§ 178. Damages for personal injury on account of 
premises being dangerous. — Where a landlord rents 
^premises in a ruined and dangerous condition and the 
injury results therefrom to a third person, the landlord is 
liable. Suffering the premises to be constructed or to 
become in a dangerous condition is a "nuisance, and if the 
landlord demise the premises in that condition he is liable 
for injuries arising therefrom." 

As a general rule is, as stated, that the tenant is 
responsible for injuries arising from a failure to keep the 

' The C. C Stove Co v. Wheeler, 14 111. App. 112. 

- SQiith V. Kinkaid, 1 111. App. 620. 

3 Peck V. Ledwidge, 25 111. 109. 

■• MoFarlane v. Pierson, 21 111. App. 566. 

° Reiohenbacher v. Pahmeyer, 8 111 App. 217. 



20s DAMAGES DAXGEKOUS PEEMISES. [§ 178. 

premises in a proper state of repair; but when the 
premises are let with a nuisance upon them, by means of 
which the injury complained pf is received, the owner or 
landlord will be liable.' 

The tenant in possession, and not the landlord, is 
responsible to third persons for injuries occasioned by 
failure to keep the demised premises in repair, unless the 
owner has agreed to keep them in repair, or when the 
premises were let with the alleged, nuisance upon them, 
in which case the owner, and not the tenant, is respon- 
sible for injuries caused by the nuisance. ° 

The landlord, however, is liable where he has ejcpressly 
agreed to keep the premises "in repair and where the 
premises are let with a nuisance upon them.^ 

To the rule that the occupant is liable for injuries, 
there are two exceptions : Firstly, where the landlord, 
by express 6ovenant, agrees with the tenant to keep the 
premises in repair ; and secondly, where the premises are 
let with a nuisance upon them which caused the injury.'' 

The owner of property is not liable for injuries result- - 
ing from an improper use by a stranger of the property, 
acting without his authority." 

If a tenant uses the premises in such a manner as to 
create a nuisance, the landlord has a right, to abate it.° 

To entitle a tenant to come into a court of equity in 
the first instance, for equitable relief against a private 

' Tomle V. Hempton, 129 111. 379. 

* City of Peoria et al. v. Simpson, 110 111. 394. 
^Gridley v. City of Bloomington, 68 111. 47. 

^ The U. B. Mfg. Co. v. Linsay, 10 111. App. 583. 

* Greene et al. v. Hague, 10 111. App. 598. 
6 Kurrus v. Seibert, 11 111. App. 319. 



§ 179.] DAMA(JKS 1!V WATEK. 209 

nuisance, he must have a clear case; there must be "a 
strong and mischievous case of pressing necessity." ' 

§ 179. Damages by water There is no implied con- 
tract on the demise of real estate that it shall be fit for 
the purpose for which it was let ; and in the absence of 
an express contract to keep the premises in repair, the 
landlord cannot be made liable for damages to the tenant 
caused by water from an upper floor.'' 

Where the water pipes in a building are of the proper 
size and properly constructed,' a tenant occupying a room 
and ' having the use of the pipes and water and access to 
a crank by which to turn off the water to prevent freez- 
ing, and who neglects to turn off the same, whereby it 
freezes and bursts the pipe and damages his goods by 
leakage, cannot maintain an action against the landlord 
for damage, on account of his own negligence and want 
of ordinary care in not turning off the water when likely 
to freeze. A clause i,n a" lease exempting the landlord 
from liability for damage to the tenant by leakage of 
water, will not only be held to ^apply to leakage in the 
story or room occupied by the tenant, when it appears 
that the water pipes are in a room or the floor above, 
and to which the tenant has access and which he agrees 
to keep in order, but will also apply to leakage from the 
pipes in such upper rooms rented to other parties.' 

To make the landlord liable to his tenant for such 
injuries, it must be shown that the agencies causing the 
damage were under the control of the landlord or his 

' Oswald V. Wolf, 129 111. 200. 
- Mendel v. Fink, 8 111. App. 378. 
2 Taylor v. Bailey, 74 111. 178. 
14 



210 DEFECTIVK PLCSDUXG. [§180. 

agent, and that the damages arose by negligence or 
unskillful use of such agencies." 

If water pipes supply water to the 'portion of the 
building let and the lessor turn the water off and prohibit 
the lessee from turning it on, the latter may, at his elec- 
tion, remain in possession and recover damages, or 
entirely abandon the premises and the lease. But a les- 
see who takes possession of premises which have a defect- 
ive water pipe (there being no agreement in the lease 
concerning the matter) can recover nothing for damages 
resulting to him in consequence of the defective pipe. ' 

The common lessor is not responsible to the lessee of 
one part of the lessor's building if this lessee suffer injury 
from the lessee of another part of the building. 

A landlord is answerable, as occupant, not as land- 
lord, if, while occupying a portion of his building, he 
cause injury by his negligence -to the lessee of another 
portion. He is liable for damage unnecessarily inflicted 
on the lessee in the operation of repairing, Dutton v. 
Holden, 4 Wend. K. 643 ; or if the repairing be per- 
formed unskillfully and negligently. Turner v. McCar- 
thy, 4 E. B. Smith E. 247. See, also, ^Yhite v. Ifealio, 
63 K Y. R. 609. 

§ 180. Defective piumbing and the results of sewer 
gas. — The landlord is not bound, under the penalty of 
fraud, to disclose defects in the plumbing of a building, 
even if they are known to him.' 

It is the duty of the tenant, upon the discovery of 

' Greene v. Hague, 10 Bradw. 598; Mendel > . Fink, 8 Bradw. 378. 
Taylor v, Baily, 74 111. 178. 
- Blake v. Ranous, 25 111. App. 486. 



i§180.J DEFECTIVE PLUMBING. 211 

-fraudulent representations which induced the making of 
the lease, to rescind at once, if he desires to escape its 
obligations. Failing to do so, he must abide the lease. ' 

If fraudulent representations are made to the tenant 
before the execution of a lease, that the premises are 
free from sewer-gas, and he moves in and finds the 
premises so infected by sewer-gas as to be injurious to 
health, it is the duty of the tenant, if he wishes to 
rescind the contract, to do so immediately and leave the 
premises.' 

The law does not impl}' a contract on part of the land- 
lord that the premises are tenan table or that they will 
continue so during the term.' 

The landlord is not bound, in the absence of a contract 
imposing that duty upon him, to keep the buildings safe 
for his tenants, nor to protect them from intruders.^ 

If the lessor fail to perform his agreement, the lessee 
may maintain an action for damages, or, when sued for 
rent, may, by way of recoupment or counter-claim, inter- 
pose the default. 

While the lessor's agreement cannot be made the sub- 
ject of an action for specific performance, yet after giving 
reasonable notice and opportunity to carry out the, agree- 
ment, the lessee, if the lessor persist in neglecting per- 
formance, may himself make the repairs and collect the 
expense from him. If the repairs required be consider- 
able, the lessee may, instead of taking this course, claim 

' Little et ux. v. Dyer, 35 111. App. 85. , 
' Moray et al. v. Pierce, 14 111. App. 91. 
" MbCouIl V. Herzberg, 33 111. App. 543. 
^ Piatt V. Farney, 16 111. .App. 316. 



•112 USE ANII OCCUPATION. [§ 180. 

from the lessor the difference in value of the premises as- 
they are and as they would have been if in proper repair. 
While probable loss of business profits does not seem 
generally to form a proper claim for damages, yet, 
certain premises having been leased for a hotel and the 
lessor failing in his agreement to> put them in repair, it 
was held that the loss of profits which might have been 
realized from letting rooms was recoverable. 

[Ise txnd Ocoupation. 

The action of assumpsit cannot be sustained for use and 
occupation of real estate unless the relation of landlord 
and tenant exists under a contract, express or implied; 
and a contract will not be implied, when another party 
expected payment of rent ; thus, when an executor, dur- 
ing the settlement of an estate, allowed the father of the 
devisees to occupy land bequeathed to them, neither 
party expecting payment, they living with their father 
but never having had possession, nor the right of pos- 
session, it was held, that assumpsit would not lie against 
their father's estate for the use, and that nothing- could 
be recovered for use and occupation.' 

If one continues to occupy premises after notice from 
the owner that he will be expected to pay rent, he will 
be liable for use and occupation." 

Nor will action for use and occupation lie against a 
person in possession under a contract of sale ; but if such 
contract is rescinded, the action may be sustained.' 

' Clark V. Clark, 58 111. 527. 
' Sanborn v. Haynes et al., 26 111. App. 335. 

^McNair v. Schwartz, 16 111. 24; Dixon v. Haley, 16 111. 14.5; Van- 
derhurell v. Storr's, 3 Conn. 303. 



§ 181.] WHEN TENANTS LIABLE FOR USE. 213 

If a party holds possession against the will of the 
owner, theiaw will infer an implied agreement to pay a 
reasonable rent therefor.' 

The action of assumpsit for use and occupation is 
founded upon contract and the relation of landlord and 
tenant must exist." 

Under a contract for rent for a yekr, eommenoing in 
futuro, where a lessee actually takes possession of the 
premises and occupies them, he will be liable for the use 
and occupation for the terra, although the lease may be 
void under Statute of Frauds.' 

§ 181. When tenants liable for use and occupation. 

— If one continues to occupy premises after being notified 
by the owner, that if he does so he will be expected to 
pay rent, the occupant will thereby become liable to the 
owner for the use and occupation." 

A person lawfully withholding the premises is liable to 
the owner for their reasonable rental, estimated at the 
time.the liability arises, and he takes upon himself the 
risk, of an unfavorable season." 

Where a tenant occupying the land under a parol lease 
holds over without any new agreement as to rent after 
the expiration of his term and afjer the sale of the land 
by his landlord, such holding over will be considered to 
be a holding over under the terms of the lease and the 
same rate of renC may be recovered from the tenant by 

1 Oakes v. Oakes, 16 l\l. 106. ' 

-' Sanborn v, Haynes et al., 36 III. App. 335. 

8 Smith V. Kinkaid, 1 111. App.' 620. 

■'111. Cent. R R. Co. v. Thompson, 116 111. 159. 

5 Gilliam v. Coon et al., 10 111. App. 43. 



^14 ACTIONS FOB EENT. [§ 182. 

the vendee of the landlord in an action of assumpsit for 
use and occupation." / 

§ 182. Actions for rent and for use and occupation. 

— rActions by landlords against tenants are in some 
instances brought to recover rent, in other instances, to 
recover compensation for the use and occupation of the 
premises. 

"The legal acceptation of debt,^^ remarks Blackstone 
"is a sum of money due by certain and express agree- 
ment, as by a bond for a determinate sum ; a bill or note ; 
a special bargain ; or a rent reserved in a lease ; where 
the quantity is fixed and specific and does not depend 
upon any subsequent valuation to settle it. The non- 
payment of these is an injury, for which the proper rem- 
edy is by action of debt to compel the performance of the 
contract and recover the specifical sum due." ' 

The rent which is to furnish the measure of damages 
must be something in the nature of an annual, or at least 
regular, periodical payment, not some single payment, 
made, or agreed to be made, under such circumstances 
that no inference can properly be drawn of intention, or 
contract, to . make another similar ])ayment. Nor will 
former rent create any/liability for the future, after the 
term to which it had relation has expired, if the rent was 
paid or agreed to be paid by some person who, in the 
absence of special contract to pay rent or compensation 
for occupation, would be entitled to occupy the premises 
free of charge. Thus, one tenant in common who has 
hired for a centain term, and at a certain rent, his co-ten- 

' Price V. Pittsburgh & F. W. & C. R. R. Co., 34 lil. 13. 
5 3B1. Coram, p. 154. 



§§ 183, 184. I SET-OFF AND KECOUPMENT. 216- 

ant's moiety of the common property, is not liable for use 
and occupation, if he continue in possession when the term 
has elapSed, unless there be evidence that he holds as a 
tenant, since, in the absence of evidence to the contrary, he 
is deemed to be, in possession by his right as owner. 

§ 183. Set-off and recoupment.— The law does not 
permit a set-off except where the demands of both parties 
are liquidated or are capable of being ascertained by 
calculation.' 

A surety for. the tenant may set up, in defense to an 
action against him, any matter that operates as a dis- 
charge of the tenant from liability upon the lease. But 
the landlord must create a new tenancy, by agreeing to 
accept the sub-tenant or assignee of the lessee in substitu- 
tion for the original lessee, before the latter will be dis- 
charged, and before the sureties of the latter will be 
discharged.' 

A recovery of judgment for rent, with satisfaction of 
the judgment, or, perhaps, even recovery alone, will 
form a bar to an action for any rent which had accrued 
on the lease, and might propei'ly have been included in 
the action in which the judgment was recovered.^ 

§ 184. Kecoupraent against rent — A tenant will not 
be allowed credit against the rent for improvements made 
on the demised premises in excess of the amount agreed 
on by the landlord, unless the landlord afterwards rati- 
fies and approves the same." 

' Taylor, Landlord and Tenant, sec. 374. 
^ Grommes et al. v. St. Paul Trust Co. et al. 147 111. 634. 
8 Jex V. Jacob, 19 Hun (N, Y. S. C), R. 105. 
^HerreU et al. v. Sizeland et al., 81 111. 457. 



316 SET-OFF W HEN ALLOWED. [§185. 

It seemed to be the theory of the ancient law, that 
the covenants on part of the landlord to repair and the cov- 
enants as to the tenancy were independent of each other ; 
that the tenant could not set off in a cross action the 
amotint of dq,mage sustained by him against a demand 
for rent, because the rent was a fixed, certain amount and 
the damages on account of broken covenants to repair 
were uncertain.' 

But now it is a generally recognized principle, that a 
defendant need not resort to a cross- action on a plaint- 
iff's contract of indemnity in an}' case, but may set up 
his damages or counter claim by way of reducing, the 
plaintiff's demand. Where the demands of both parties 
issue out of the same contract or transaction, the defend- 
ant is allowed a right to recoup; that is., to keep back 
something that is in fact due, because there is an equita- 
ble reason why it should be withheld, although the dam- 
ages on both sides are unliquidated. ^ 

An executory lease under seal cannot, without a new 
conside^'ation, be changed by parol so as to form the 
basis of an action, or for recoupment.^ 

§ 185. Set off — when allowed If the landlord fail 

to repair according to his covenant, the tenant may 
recoup from the rent or may sue upon the covenant ; but 
in that case his possession remains undisturbed, the 
breach of the covenant hindering more commodious 
enjoyment of the term, whilst, in case of eviction, 
the term is gone, or the propert}' so situated that it 

' Watts V. Coffin, 11 Johns. 495. 
- Ives V. Van Eppes, 22 Wend. 165. 
« Reeves v. Hyde, 14 111. App. 233. 



§ 186.] DAMAGES. 317 

ceases to be useful for the purpose for which the term 
was obtained.' 

In an action on a lease against the tenant to recover 
damages for a breach of the lease, the defendant may 
introduce, by way of recoupment under the general 
issue, evidence to show* that the plaintiff had represented 
the roof to be in- good condition, but that it wasJeaky 
and the defendant's goods were injured in consequence.' 

§ 186. Damages — There is nothing in the forcible 
entry and detainer act authorizing the court to render a 
judgment for money or damages.^ 

Damages cannot be allowed in an action of forcible 
entry and detainer.* 

Under the common law, a party was liable to indict- 
ment, and might be convicted of either a forcible entry 
or a forcible detainer, each being considered a distinct 
criminal offense. But under the statute, the action is 
entirely a civil remedy, and tthe sole object that can be 
gained by it, is' the possession of the premises wrongfully 
withheld. 

Damages are not recoverable in this action, and the 
only judgment that can be rendered for the plaintiff is 
the restitution of the premises of which, he has been 
unjustly deprived." 

A jury, in an action of forcible entry and detainer, 
having rendered a A^erdict finding the defendant guilty, 

1 Wright V. Lattin et al. , 38 111 393. 

^Stubblefield v. Soule, 21 111. App. 154. 

' Gould et al. V. Hendriokson, 9 111. App. 171. 

" Brash V. Fowler, 36 111,. 53. 

' Robinson v. Grummer, 5 Gilm. 238; Mason v. Finch, 1 Scam. 495. 



218 DAJIAGES. [§ 186. 

and assessing plaintiff's damages at one cent, the court 
held : "As to the verdict for one cent damages, though 
damages cannot be allowed in such action, we will not 
reverse the judgment for that cause, the merits being so 
clearly with the appellee."" ' , 

But damages suffered from negligent performance by 
the lessor of some work about the premises, which work 
was done for the benefit of the lessor by lessee's permis- 
sion, not bj' virtue of the lease, and which work the les- 
sbr had promised to do " with diligence, care and 
caution," would constitute such a counter-claim. 

Breach of a covenant in the lease might, at common 
law, be recouped. Tone v. Brace, CI. R. 503, 510, S. 
C, 8 Paige, R. 597, 599. Special damages have been 
said not to be the suljject of recoupment. Benkard i\ 
Bahcock, 3 Robt. R. 175, 182. 

In an action by the landlord for rent, the lessee may 
recoup damages arising from a leasing of contiguous parts 
of the premises for the sale of liquor, contrarj- to the 
agreement, ^nd in such case, exemplary and punitive 
damages ma}^ be recovered. ' 

Evidence of damages occasioned to the tenant by being 
prevented from removing from the demised premises, a 
house thereon belonging to her, for the purpose of 
recouping the damages thus sustained from the rents, 
was properly excluded.'' 

' Brush V. Fowler, 36 111. 53; Gould v. Hendrickson, 9 Bradw. 171: 
Walker v. Shoemaker, 4 Hun. (N. Y. S. C), R. 579. See Crane v. 
Hardman, 4 E. D. Smith, R. 839. Compare Cram v. Dresser, 2 
Sandf. E. 130. 

- Chicago Legal News Co. v. Browne et al., 5 111. App. 250. 

' Keegan et al. v. Kinnare, Admx., 123 111. 380. 



§186.] .DAMAGES. 219 

An agreement in a lease to pay so much per day as 
liquidated damages for each day the possession is with- 
held after the terms of lease by lapse of time, is valid 
and not to be treated as a penalty.' 

Where a lot is rented only for the purpose of building 
cribs on it in which to store corn, the lessee will be 
responsible to the lessor for any tortious acts committed 
by the tenant outside of such use, resulting in injury to 
the premises.^ 

A. justice of the peace ha^ jurisdiction in a suit for 
damages to real estate done by a party entering the same 
under a lease, and the owner may recover for the same 
without being in actual possession at the time of the 
injury.* 

In an action brought for the recovery of rent, damages 
claimed by the tenant for injuries to his stock through a 
choked water-pipe were properly admitted." 

The failure of a landlord to csl^vj out an agreement to 
repair is a matter (;>f defense in an action for rent, and 
damages suffered by reason thereof may be recouped 
therefrom.^ 

In order to make a landlord liable to his tenant for 

injuries from water from an upper floor, it must be 

shown that agencies causing damages were under the 

management of his landlord or the latter's agent; that 

the damage arises by reason of the unskillful' uses of such 

agencies." 

' Poppers V. Meager, 47 111. App. 593. 
- Taylor et al. v. Koshetz, 88 lU. 479. 
3 Taylor et al. v. Koshetz, 88 111. 479. 
^ Mitchell V. Plaut, 31 111. App. 148. 
^ Clark V. Ford, 41 111. App. 199. 
« Mendel v. Fink, 8 111. App. 378. 



220 DAMAOES FOR FAILING TO BEPAIK. [§ 187. 

If the lessee has suffered damage by reason of the fail- 
ure of the lessor to complete the building within the time 
agreed upon, such damage may be recouped in a proceed- 
ing for the recover}^ of the rent to the extent of the rent ; 
and if the damage exceeds that amount, the exces^ maj^ 
be recovered over in the same proceeding/ 

§ 187. Damages for failing to repair If, a valid 

contract for leasing having been entered into, the lessor 
fail to complete his contract by delivering fhe lease, the 
lessee, may, if its delivery be practicable, enforce delivery 
by an action for specific performance, or he nnay content 
himself with an action for damages only. 

'The measure of damages in the case of a lessor able to 
complete the contract, yet perversely refusing, will include 
the value of the lessee's bargain, and any special damage 
actually resulting to him from the lessor's violation of 
contract. But if the lessor find the agreement to be one 
which, through some misfortune, or on account of some 
mistake, he is unable to perform, nominal damages only 
will doubtless be recoverable. 

Some cases of fraud seem to entitle the lessee after 
entry as well to rescind as to maintain an action for 
damages. Thus, a landlord leasing premises with knowl- 
edge of their being infected b^^ disease and concealing 
this fact from the lessee, ^vill be liable in damages to the 
lessee, if the latter contract the disease. The right of 
rescinding the lease appears in such a case of premises 
being infected equally clear, even without the tenant 
contracting the disease." 

' Haven & White v. Wakefield et al., 39 111. 509. 
'^Jackson v. Odell, 9 Daly R. 371; Minor v. Sharon, 112 Mass. R. 
477; Smith v. Marrable, 11 M. & W. R. 5 pr., Abingjer L C. B. p. 9. 



§ 188. J KE-EXT]iY ]5Y LANDLORD. 2^1 

While the right to rescind for known, ft'aud of the 
lessor is lost by entry, the right to recover damages 
resulting from fraud of the lessor affecting the value of 
the lease is not thus impaired. And these damages may 
be set up by way of counter-claim or recoupment in an 
action for rent." 

The assignee of a life estate in lands, subject to the 
payment of rent, is bound to pay the taxes assessed on 
the premises during his tenancy and cannot recoup or set 
off the same against the rent of the premises.'' 

§ 188. Re-entry by landlord. 

When re-entrij Try landlord determines lease. — Where a 
lease contains a stipulation, that for any breach of the 
covenants by the lessee the lease shall " determine and 
be utterly void," — that is to say, void at the election of 
the lessor, — an entry by the landlord will be regarded as 
an exercise of his option to determine the lease and he 
can not have a recovery for subsequently accruing rent. 

When re-entry iy landlord does not stop the subsequent 
rents. — Where the lease contains no provision that it 
shall become void for failure to pay rent, but provides 
that a re-entry and taking of possession by the landlord 
shall not have the effect of determining, the lease nor 
operate to prevent its continuing in force, such re-entr\^ 
for the non-payment of rent then due will not release 
the tenant from the payment of the subsequently accru- 
ing rent. 

There is nothing illegal or improper in a covenant in a 
lease, that the obligation of the tenant to pay all the 

' Whitney v. Allaire,' 1 N. Y. R. 305-310. 
- Prettyman v. Walston, 34 111. 17.5. 



222 EE-ENTEY BY LANDLOED. [§ 188. 

rents to the end of the term shall remain, nothwithstand- 
ing there may be a re-entr}'^ for a default, and such an 
agreement may be enforced against the tenant and his 
sureties or guarantors. 

Right of re-entry — 7node of entry. — Where a lease 
authorizes a landlord to re-enter in case of default in the 
payment of rent, the fact that such entry is made after 
establishing the landlord's right to make- the same by an 
action of forcible detainer, instead of making the same 
without a judgment of restitution, is no just ground of 
complaint. 

It may not be strictly accurate to call the money to 
be paid after re-entry " rent," or to treat the lease as in 
force aftfer re-entry; but the parties have the right to 
fix the amount of the rent to accrue, according to the 
terms of the lease, as the amomit of damages to be paid 
by the tenant in case of a breach of his covenants. It 
can make but little practical difference whether the sum 
agreed to be paid be called rent or damages.' 

' Grommes et al. v. St. Paul Trust Co. et. al. 147 111. 634. 



§§ 189, 190.J , DEFINITION. 223 



CHAPTER XVIII. 

FIXTURES. 

Section 189. Definition. 

« 190. Landlord's fixtures. 

191. Tenant's fixtures, 

192. Eemoving fixtures. 

193. The intention as to fixtures. , 

194. Cases in illustration. 

§ 189. Deiflnitioii. — What are known as fixtures, are 
articles originallj'^ ■ personal in their nature, which, in 
some manner, have been fixed or attached to the realty. 
Some articles, so fixed or attached by the tenant, he is 
entitled to remove; other articles, similarly circum- 
stanced, he is obliged, at the end of his occupancy, to 
abandon to his landlord. Fixtures of tbis kind which 
the tenant may remove have been called "tenant's fix- 
tures;" those which he must resign to the landlord, 
'• landlord's fixtures." 

§ 190. Landlord's fixtures While, by agreement 

between themselves, the landlord and tenant may arrange, 
to a great extent, what annexations the tpnant may 
remove, yet there are held to be certain distinctions 
existing in the nature of things, according to which dis- 
tinctions the transfer and devolution of property are 
regulated, and these distinctions contracting parties can- 
not abrogate. Such is the distinction between real and 
personal property. The separate articles and materials 
out of which the vp^alls of a house have been constructed 



■224 tenant's fixtuees. ^ [§ 191. 

become, bj^ such use, real estate, and no arrangement 
among parties can convert them into mere chattels. A 
license concerning them may be given, but they cannot 
be made alienable as chattels, nor can the rules of suc- 
cession of personal property be made applicable to them. 

§ 191. Tenant's fixtures. — In the instance of cove- 
nants running vi^ith the land, we have seen the provisi/)ns 
of a statute limited by construction with reference to a 
principle somewhat analogous. 

Any articles, however, which have been attached to 
the realty, and which, in the absence of agreement, or of 
any special relation between parties interested, would 
become, by this attachment, a part of the realty, yet 
which, by the manner of attachment, " were not so 
absorbed or merged in the realty that their identity as 
personal chattels were lost," msbv, under some circum- 
stances, be personal property, and consequently remov- 
able, unless the^^ cannot be removed "without practi- 
cally destroying" them, or unless they be necessary to 
the support of something, part of the realty, with which 
they are connected. 

Subject to the limitations mentioned, the principal test 
of the tenant's right to a fixture which he has placed is 
(in the absence of any express agreement) the intention 
with which he annexed the article, whether for the per- 
manent and substantial improvement of the premises, or 
whether for a temporary object, or for his own mere 
convenience. As his interest is temporary, it will be 
presumed, where the presumption would not violate these 
limitations, that any article which he has attached was 
intended for his own convenience rather than for the 
improvement of the realty. 



§192.]' EKMOVING FIXTUKICS. ^25 

§ 193. Removing fixtures Fixtures which he will 

be deemed to have attached for his own use, and whicli 
he will be entitled to remove at the end of his occupancy, 
seem, in the instance of a tenant of a residence, to be 
such domestic fixtures as hangings, pier-glasses, chim- 
ney glasses, book-casesj carpets, blinds, and curtains, 
although they be physically attached to the premises. 
So it seems he may remov.e grates, i^anges, and furnace^ 
which he has placed. He may remove gas-fixtures he 
has affixed, but not gas-pipes.' 

In an English case, where a tenant had arched over an 
open well, and erected a pump, which was attached to a 
stout perpendicular plank, I'esting on the ground at one 
end, and at the other fastened by an iron bolt or pin to 
an adjacent wall, from, which it was distant about four 
inches, it was held that he had a right to remove the 
pump, for the reasons, as stated by one of the judges, 
that it was placed for domestic convenience by the ten- 
ant, was slightly fixed, and could be removed entire." 

Instances of articles attached by the tenant, whether 
they be properlj'^ fixtures or not, which articles, when 
once annexed to the premises, are considered as having 
been placed for the benefit of the property, are doubt- 
less afforded by new locks placed upon doors, and new 
keys purchased for locks already on." But a padlock 
placed by the tenant, not to replace one which had pre- 
viously been placed by the landlord or former occupant, 
raay, it has been said, in a Massachusetts case, be removed 

1 McKeage v. Hanover F. Ins. Co., 81 N. Y. R. 38. 
' Grymes v. Boweren, 6 Bing. R. 437. 

3 Bishop V. Elliott, 11 Ex, R. 113; Elliott t. Bishop, 10 Ex. R. 496. 
15 



226 IXTENTION AS TO FIXTUEES. [§ 193. 

by the tenant." It has been held in an English case that 
a box border, planted in a garden by the tenant, is to be 
considered " a thing intended to be permanent," which, 
therefore, may not be removed, and this was said, in the 
same case, to be the law concerning flowers planted ' ' in 
the ground." ° 

As between landlord and tenant, improvements put on 
tjhe demised premises b^' the latter for purposes of trade 
or manufacture, and which can be detached without injury 
to the estate, may be removed by him before he quits 
the possession.' 

It is not necessary that a chattel should always be 
fastened or attached to the realty to make it part of the 
real estate.' 

§ 193. The intention as to fixtures The intention 

of the parties as to the uses and purposes to which a 
chattel is put, is the criterion in deciding whether it is 
part of the realty, or not." 

A mirror built on the chimney breast in keeping with 
the finish of the rest of the room, and so attached on 
the chimney, front that it could not be removed without 
tearing away a portion of the plastering, was decided to 
be part of the realty and pass by the deed of the land." 

' Whiting V. Brastow, 4 Pick. R. 310. 

'^ Empson v. Soden, 4 B. & Ad. R. 655. See Rules of the Roman 
Civil Law, Instit. Lib. 11, T. 1, t;g 31, 32. 

3 2 Kent's Com. 343; Mason v. Fenn, 13 111. 525. 

^Otis V. May, 30 111. App. 581; Jones on Mortgages, sec. 446; Jenney 
V. Jackson et al., 6 111. App. 33; Thielman et al. v. Carr et al., 75 111. 
385; Palmer v. Forbes, 23 III. 301; Arnold v. Crowder, 81 111. 56. 

5 Otis Y. May, 30 111. App. 581. 

« Spinney v. Barbe, 43 111. App. 585. 



§ 194. J CASES IN ILLUSTRATION. 227 

§ 194. Cases in illustration. — A bar, counter and 
shelf placed into a building b}'' a tenant for the purpose 
of conducting a saloon and attached to the realty sovthat 
they can be removed without injury to the premises, are 
trade fixtures and do not passAvith the realty.' 

In order that the fixtures of a cigar-stand in a hotel 
may retain the character of removable trade fixtures, it 
is necessary, upon the expiration of each tenancy of the 
house, that such right be duly asserted.'' 

Distillery pipes and machinery are trade fixtures and 
may be removed by the tenant, who has erected or 
bought them, at any time while he is in possession. ° 

Where a tenant has a right to remove certain fixtures 
from the premises, he should do so before he gives up 
possession to the landlord ; for if the tenant leaves the 
premises without removing them and the landlord takes 
possession, the fixtures so left become the property of the 
landlord.' . ' 

Trover will not lie for fixtures while still annexed.' 

' Berger v. Hoerner, 36 111. App. 360. 
« Leman et al. v. Best efc al., 80 111. App. 333. 
s Moore v. Smith, 24 111. 513. 

^Donnelly v. Thieben, 9 Bradw. 495; Wood's Landlord and Tenant, 
sec. 533. 
° Leman et al. v. Best et al., 30 111. App. 328. 



228 RENT DEFINED. [^195. 



CHAPTER XIX. 
DISTRESS FOR RENT. 

Section 195. Rent defined. 

196. The warrant for distress. 

197. Proceedings for distress. 

198. Distress warrant subject to lien of execution already 

levied. 

199. Interest of chattel mortgagee. 

200. What property subject to levy. 

301. Amount claimed by landlord limits his recovery. 

302. The office of the warrant. 

203. The landlord's lien on crops. 

204. Trial in distress cases. 

205. Cases in illustration. 

306. Practice in distress-for-rent cases. 

§195. Eent defined. — Blackstone describes "rent" 
as being " a certain profit issuing yearly out of lands and 
tenements." ' 

Again it is described as the recompense for the use and 
occupation of lands ; but it is not confined closely to the 
compensation for the use of land, for chattels are often 
demised with the land and form no inconsiderable por- 
tion of the consideration for which rent is paid. ' And 
Bingham says "rent is the compensation to the proprietor 
of land for the I'ight to enjoy his land and . the right to 
enjoy its annual profits. ' ' ' 

It must be certain in amount and nature, but that it is 

» 3 Black. Com. 41. 

= Lathrop v. Clewiss, 63 Ga. 282; Toler v. Seebrook, 39 Ga. 14. 

' Bingham on Real Estate, 557. 



§ 195.] BENT DEFINED. 229 

such, that it may be reduced to certainty, will suffice. It 
must be a profit, but not necessarily money — it may be 
payable in other articles, or by the performance of per- 
sonal services. So, too, it must issue yearly, but maj' be 
payable annually or every second or third year. 

While rent will, of course, become due on the day 
when, by the lease, it has been made payable, yet, as the 
tenant is allowed the whole of this day to pay, no action 
for the rent, if unpaid, can properly be commenced until 
the following day. If the time for payment be alterna- 
tive, as " quarterl}^ or monthlj'^," the election belongs to 
the landlord. 

Rent reserved payable in advance, will become due and 
may be demanded accordingly. The notion entertained 
by some, that rent cannot be collected until the end of 
the month because the tenant has not enjoyed the 
premises, is a mistake; if required by the lease to be 
paid in advance, it can be demanded and collected. 

If no express agreement concerning amount of rent has 
been made, the landlord, if the lease be not under seal, 
may recover the reasonable value of the use of the 
premises. 

The weight of authority as to place of payment of rent 
seems to be that, whether payable in money, in kind, or 
in services, the premises let ax-e the place of payment, in 
the absence of any agreement to the contrary.' 

Where premises are demised for a year or a greater or 
other definite period, the rent will be paj^able at the end 

i"Van Rensselaer v. Jones, 5 Denio, R. 449, 453; Walter v. Dewey,. 
16 Johns. R. 322; Livingston v. Miller, 8 N. Y. R. 283, per Gardiner, 
J., p. 289: S. C. 11 N. Y. R. 80, Remsen v. Conklin, 18 Johns. R. 447. 



230 THE -WAEEANT FOE MSTEESS. [§ 196. 

of the year or other time fixed for the termination of 
the tenancy, unless the lease provides that it shall be pay- 
able at some particular time or unless a general custom 
at the place where the premises are situated fixes the 
time.' 

Where, by the terms of a lease or contract of renting, 
rent becomes due before the expiration of the term, the 
landlord is authorized to distrain when the rent becomes 
due, and is under no obligation to wait until the expira- 
tion of the terra.'' 

The statute giving the tenant in a distress for rent the 
right to avail of a set-off, was intended to apply only to 
cases where, upon a fair adjustment of all counter-claims 
other than the rent, the landlord will be indebted to the 
tenant, and in such case'gives the tenant the benefit of 
his claim on such balance.^ 

§ 196. The warrant for distress In a levy of a 

distress warrant, where the warrant is insufficient and 
the levy b}' distress fails on that account, yet the land- 
lord may recover a judgment for the rent where there 
was a personal appearance and defense to the merits, 
even though the levy of the distress warrant was not 
sufficient." 

The taking of other security is not a waiver of the 
landlord's right to distress for rent; he may pursue both 
remedies at the same time." 

'Toler V. Seebrook, 39 Ga. 14; Kidgley v. Stilwell, 37 Mo. 128; 
Dixon V. NiccoUs et al, , 39 111. 372. 

2 Atkins V. Byrnes, 71 111. 336. 

3 Cox V. Jordan, 86 111. 560. 

"Holley et al. v. Metcalf, 12 111. App. 141. 
'Ciinneav. Williams, 11 111. App. 73. 



§ 197.J PROCEEDINGS FOE DISTKESS. 231 

Where, after the levy of a distress warrant, property 
is disposed of by the landlord contrary to the statute, 
trover may be maintained by the tenant.' 

Where the relation of landlord and tenant did not 
exist between appellant and appellee, there could be no 
distress for rent." 

Where a landlord deprives his tenant of possession of 
rented property, he cannot recover rent during the time 
the tenant is so deprived of possession, even if the lease 
has not yet terminated. There can be no distress for 
rent unless there has been an actual lease.'' 

Under the statute of Illinois, where the tenant aban- 
dons the demised premises, growing crops may be seized, 
whether the rent is due or not, but otherwise propertj' 
cannot be taken under a distress warrant, except for rent 
due.* 

g 197. Proceedings for distress A description of 

the demised premises in a distress warrant is surplusage, 
and if inserted, can make no difference." 

Proceedings bj' distress warrant for the collection of 
rent are not governed by the practice affecting ordinary 
trials at law ; the statute has only brought the landlord's 
right to sell the property distrained under the control of 
the court, but has not made the proceedings an original 
action. It is transferred to the court for the single pur- 
pose of ascertaining whether the relation of landlord and 

' Sheetz v. Baker, 38 lU. App. 349. 

- Murr V. Glover -et al., 34 111. App. 373. 

3 Murr V. Glover at al , 34 111. App. 373. 

" First National Bank of Joliet v. Adam et al., 138 111. 483. 

= Alvvood V. MansSeld, 33 111. 453. 



232 PEOCEEDINGS FOE DISTRESS. [§ 197. 

tenant exists, and what sum was due for rent when the 
goods were seized.' 

In distress for rent, the lease need not be filed ; no 
declaration is necessary.^ 

If the amount of rent is fixed by a distress for rent, it 
will be binding on the parties as to all matters that 
should have been determined in that proceeding." 

In a distress for rent, where the defendant pleads " no 
rent in arrears " only, the defendant cannot recover judg- 
ment for damages in his favor upon any state of proof. 
To authorize this, he must plead a set-off either specially 
or give notice thereof under the general issue.' 

The action of replevin may be brought to try the legal- 
ity of a distress for rent, provided there is no sum what- 
ever due for rent ; but if any sum, however small, is due 
and the distress is for a greater sum, or is excessive in 
regard to the quantity of goods taken, or otherwise 
irregular, the remedy must be by case. ' 

In a proceeding against the original tenant, the land- 
lord cannot distrain the goods of the tenant's assignee, 
although they formerly belonged to the tenant and are 
found on the demised premises." 

To authorize a distress, the rent must be certain and 
specific ; a landlord cannot apportion rent, so as to 
recover bj^ distress, for the value of part of premises 
occupied, where the rent has not been fixed.' 

' Alwood V. Mansfield, 33 111. 453. 

' Alwood V. Mansfield, 33 111. 452. 

^ Clevenger v. Dunaway, 84 111. 367. 

•< Cox V. Jordan, 86 111. 560. 

' Hare v. Stegall, 60 111. 380. 

« Howdyshell et al. v. Gary, 31 111. App. 288. 

' Hatfield v. Fullerton, 24 111. 278. 



§§ 198, 199. J WAEEANT SUBJECT TO- lii;n. 333 

In an action of distress for rent, unless the warrant 
contains an allegation or charge that the defendant, by 
good husbandry, might have made a, better crop, evidence 
to that effect is inadmissible.' 

§ 198. Distress warrant subject to lien of execution 
alrea(iy levied. — A distress warrant, issued and placed 
into the hands of the sheriff, after his receipt and levy 
of execution upon the goods and chattels of the tenant — 
not crops grown or growing upon the demised premises 
^does not take precedence of the execution, and a levy 
of the distress warrant will be subject to the prior liens 
of the execution.'' 

Where property is converted by the landlord, in a dis- 
tress proceeding, such conversion does not necessarih' 
-become a matter of set-off, which must be interposed by 
the tenant in the distress suit, under penalty of losing: his 
cause of action for the property so wrongfull}^ converted.'' 

In an action of trespass by the tenant against his land- 
lord for an illegal distress, the landlord may recoup to 
the extent of any rent unpaid, although the rent may 
not be due. " 

Knowledge on part of the landlord that there was a 
chattel mortgage on goods, does not deprive him of the 
right of levying his distress, or subject him' to punitive 
damages for so doing. ' 

§ 199. Interest of chattel mortgagee A mortgagor 

■ Bainter v. Lawson, 34 111. App. 634. 
"- Hen-on v. Gill, 113 III. 347. 
[ ^Sheetz v. Baker, 38 111. App. 349. 
*Cunnea v. "Williams, 11 111. App. 72. 
* Mackin et al. v. Blythe, 35 111. App. 316. 



234 PEOPEETY SUBJECT TO "LEVY. [§ 200. 

in possession of mortgaged chattels has such an interest 
in the j)roperty as may be seized on execution or distress 
for rent.' 

A person making a lew upon mortgaged goods in the 
possession of the mortgagor is not a trespasser in making 
such levy and neither replevin in the cepit nor trespass 
will lie for such taking." 

As the object of inquiry, on the trial of a distress for 
rent, is to ascertain the amount of rent due, any acts of 
the landlord impairing the value of the use of the demised 
premises may be shown and the damages caused thereby 
may be recouped.'' 

The right of the landlord to distrain for rent arises at 
common law and there can be, no distraint unless there 
has been an actual demise at a certain fixed rent." 

A mere paper levy and placing a custodian on the 
land, but not in the house,, is not suflBcient in a distress 
for rent.* 

§ 200. What property subject to levy A distress 

warrant can only be levied on personal property of tlie 
tenant. ° 

The landlord's lien is of common law growth and does 
not depend upon statutory enactment for its creation. 
Statutes have been enacted to regulate the right, but are 
rather in aid of than repugnant to the common law. 
The landlord's lieu and power to distress are co-eval with 

' Holladay et al. v. Bartholomse et al., 11 III. App. 206. 

'' Holladay et al. v. Baitlioloma? et al., 11 III. App. 206. 

» Lynch v. Baldwin, 69 III. 310. 

^Johnson v. Prussing, 4 111. App. 575. 

'Johnson v. Prussing, 4 111. App. 575. 

" Kassing et al. \ . Keohane, 4 111. App. 460. 



§ 201.] AMOUNT CLAIMED LIMITS EECOVEEY. 236 

» 

the earliest history of the common law and have main- 
tained their energy to the present time.' 

By the act of 1857, the common law relative to pro- 
ceedings for distress of rent is so modified as to authorize 
distress to be made for the period only of six months 
after the expiration of the lease ; and where a distress 
warrant issues more than six months after rent has 
become due and the lease terminated and the demised 
premises abandoned, such warrant is without authority 
of law and null and void.'' 

A landlord has a lien and a right to distress in all 
cases where rent is certain, whether the right to distress 
is reserved or not in the lease.' 

A person not a lessor or grantee, assignee or h^ir. or 
a personal representative of the lessor, cannot maintain a 
distress for rent." 

Where a tenant removes from or abandons the leased 
premises, the statute gives the landlord the right to dis- 
tress for rent and also for that to become due. The ten- 
ant cannot, by giving notice that he intends to leave, 
deprive the landlord of his right to distress.' 

§ 201. Amount claimed by landlord limits his 
recovery. — The amount claimed by the landlord in the 
distress warrant fixes the limit of his recoveiy. He is 
not authorized to seize property and sell it for a greater 
amount than that stated in the warrant, and to sustain 

' O'Hara v. Jones, 46 111. 288. 

- Werner v. Ropiequet, 44 111. ^22. 

•5 O'Hara v. Jones, 46 111. 288. 

^McGillick V. .McAllister, 10 III. App. 40. 

^ Hare v. Stegall, 60 111. 380. 



236 THE OFFICE OF THE WARRANT. [§2<t2. 

■" t 

the warrant, he must show on the trial that he was 
entitled to as inuch rent as is specified in the warrant, 
and no more. The tenant can reduce the amount bv 
proving payment of part. The landlord is strictl}^ con- 
fined to the claim he makes in the distress warrant. 

g 202. The office of the warrant The warrant is 

of the nature of a summons and declaration, and there is 
no rule better settled, tlmn that it is error to render 
judgment for a larger sum than that claimed in the dec- 
laration, whatever may be the form of action.' 

A replication to an avowry in an action of replevin, 
justifying the taking under a distress for rent in arrear. 
which avers various breaches of the contract of leasing, 
whereby the tenant sustained great damage, is fatally 
defective, if it fails to aver that such damages are equal 
to or exceed the rent due. The naming of several 
amounts of damages which, when added together, exceed 
the rent claimed, will not be sufficient, as the party is 
not bound to prove such sums as laid. The pleadings 
should contain a specific averment that the damages are 
equal to or greater than the rent in arrear. 

Where a distress has been replevied, the tenant may 
show that there have been breaches of the covenants or 
agreements on the part of the landlord which have pro- 
duced damages equal to or greater than the amount of 
the rent due, and thus defeat the levy of the distress 
warrant.' 

The deliver}^ of a distress warrant to an officer or per- 
son, with directions to execute it, does not render the 

' Asay V. SpaiT, 26 111. 115; Brown et al. v. Smith et al., 24 111. 197. 
= Lindley v. Miller, 67 111. 244. 



§ 203. J landlord's likn on ceops. 237 

landlord liable for the unauthorized and unapproved acts 
of the bailiff or his associates. ' 

§ 203. Landlord's lien on crops A landlord's lien 

on crops for rent is paramount to the lien of an execu- 
tion. Such lien does not invest him with the title, either 
general or special, it and the right of possession remain- 
ing in the tejiant, subject to be divested by an appro- 
priate proceeding at law.' 

A landlord has no lien for rent on property of his ten- 
, ant other than crops. ^ 

A condition in a lease providing that a lessor shall 
have a valid and first lien upon the property of the lessee 
for rent, refers only to property owned at the making of 
the lease." 

The bona fide purchaser of farm crops from a tenant 
takes them subject to the lien of the landlord under the 
statute for unpaid rent.* 

The landlord's statutory lien upon crops grown upon 
the demised premises does not follow such crops in the 
hands of a lona fide purchaser without notice." 

A lien may be preserved by stipulation in a lease upon 

the lessee's interest in the deniised premises and upon 

the buildings and improvements thereon, to secure the 

payment of the rent, and such lien will be good and 

. enforcible between the parties and all persons except 

' Dow V. Blake, 15 111. App. 89. 
■^ O'Malia et al. v. Glynn, 43 111. App. 51. 
"Felton et al. v. Strong, 37 111. App. 58. 
■• Borden v. Croak,' 83 111. App. 389. 
5 Finney v. Harding, 33 111. App. 98. 
« Howe V. Clark, 33 111. App.. 145. 



238 TRIAL IN DISTRESS CASES. [§§204, 205. 

creditors and persons without notice, although the lease 
be not acknowledged or recorded.' 

§ y04-. The trial in distress cases In a distress for 

rent, it is error to render judgment on the finding and 
award a special execution. The court should ascertain if 
the relation of landlord and tenant existed ; secondly, if 
so, find the amount of rent due; and, thi7'dly, have it 
certified to the bailiff making the levy, which certificate 
constitutes his warrant for selling the property and apply- 
ing the proceeds to the payment of the rent found due.^ 

§ 205. Cases in illnstration. — In a replevin by a land- 
lord for 100 acres of corn, taken on two judgments against 
a tenant, claiming his lien as superior to that of the exe- 
cutions. (1879.) The court held, the lien given by statute, 
(Rev. Stat. 1874, p. 661, § 31) on crops gi'own or growing 
on the demised premises, does not grow out of a levy of 
a distress warrant. It is a faramount lien of which every 
person must take notice, and which can be lost only by 
waiver or failing to enforce it at the proper time.' 

AVhere a landlord took possession of crops (corn in a 
crib) for rent of the year, without levj'ing a distress 
Avarrant on it or doing anything further to enforce his 
lien; held, he had a right to the same as against a pur- 
chaser from the tenant to the extent of the rent.* 

On its being claimed that the landlord had only a mere . 

' Webster et al. v. Nichols et al:, 104 111. 160. 
2 Kruse v. Kruse, 68 111. 188. 

"Thompson v. Mead, 67 111. 395; Prettyman v. Unland etal., 77 111. 
206; Wetsel v, Mayers et al., 91 111. 497. 
■'Hunter et al. v. Whitfield et al., 89 111. 339. 



§ 205. J ' CASES IN ILLUSTEATIOK. 239 

lien under the statute and did not have the right of pos- 
session unless he obtained it by the levy of a distress war- 
rant, the court said: "There is nothing in the statute 
which indicates that the levy of a distress warrant is 
essential to a right of possession of the property on which 
the lien exists or that that is the exclusive remedy for the 
assertion or protection of the landlord's lien." ' 

Under sec. 8, ch. 60, R. S. 1845 (335), providing 
"Every landlord should have a lien upon the crops 
growing, or grown * * * in any year, for rent 
that shall accrue for such year," the court held that 
where a crop is sown in the fall of one year and is 
harvested the next summer, having grown partly in two 
years, the rent of each year becomes a lien on it, which 
the landlord may enforce by distress. ° 

A landlord having a lien on grdwing or grown crops, 
prior to that of an execution, is entitled to. the possession 
of the crops and may maintain replevin against the officer 
seizing them without regard to any proceedings by distress. 

In this case, property subject to the lien of the landlord 
(on crops) had been levied on and sold under an execution 
against the tenant. Thereafter, the landlord took the 
property by distress for the rent and sold it, and it was 
held that the levy, and sale under the execution were sub- 
ject to the landlord's lien upon the grain ; that such sale 
under the execution in no wise affected the lien, and the 
purchaser only acquired the right to retain the overplus 
after satisfying the rent ; and that, the landlord could 

'Miller v. James, 36 111. 399; 67 111. 395. 
= Wetsel V. Mayers et al., 91 111. 497. 



240 CASES IN ILLUSTBATIOX. [§ 205. 

still, notwithstanding the sale on the execution proceed 
by distress to enforce his lien against the grain.' 

The statute gives a landlord a lien on crops growing or 
grown on demised land in any year for rent of that year. 

This lien is not confined to any particular crop, but 
embraces all the crops or any portion of them no matter 
on what particular part of the premises raised. It is 
created by law and does not grow out of the levy of a 
distress warrant, and is paramount to the lien of an 
attachment, and can be lost only Ijy waiver or failing to 
enforce it at the proper time.' 

Where a farm was demised, of an house and land in two 
townships, separated by a public road, the house at a 
monthly cash rent and the farm land on shares, the con- 
tract being entire, and on an attachment levied on the 
tenant's crops after the rent for the land on which it 
grew was paid ; held, the landlord had a lien on the 
crops for ho^ose rent and uncultivated premises prior to 
the attachment, and its precedence did not depend on the 
levy of a distress warrant or scny other proceeding by 
him. 

In an ordinary action for rent under a lease, damages 
sustained by the tenant by a breach of the lease by the 
landlord, ma}' be recouped by the tenant. And the same 
rule applies in a proceeding by distress for rent.' 

Where a distress has been replevied, the tenant may 
show breaches of the covenants or agreements of the 
landlord, which have produced damages e<iual to or 

' Miles V. James et al., 36 111. 399. 
- Thompsoa v. Mead et al., 67 111. 395. 
« Lindley v. Miller, 67 111. 244. 



§ 206.] CASES IN ILLtrSTEATION. 241 

greater than the rent due and thus defeat the lien of levy 
of the distress warrant.' 

"Where, when property was distrained for rent, and 
the amount due ascertained bj'^ a justice, the constable 
making xthe distress, sold the property without firs.t hav- 
ing it appraised, as required by the statutes, and after 
tender of rent and costs, whereupon the tenant brought 
an action with two counts in case and one in trover ; 
held, trover will lie in such a case ; the statute requires 
the property to be appraised before it can be sold, and 
the requirement must be observed.'' 

The landlord's lien on crops growing or grown on the 
premises in any year .for the year's rent, is not defeated 
by a sale of such crops or any portion thereof by the 
tenant to a person having notice of the fact of the ten- 
ancy, and that they were raised on the demised premises, 
but the landlord may enforce his lien upon such crops as 
against such purchaser." 

The landlord's lien attaches on the crops grown on the 
premises in any given year for the year's rent, from the 
time of the commencement of 'their growth, whether the 
rent is then due or not. 

Where a purchaser of corn from a tenant knows the 
fact of the tenancy, and that his vendor, as such tenant, 
has raised the corn on the demised premises, this. will be 
notice to him of any lien the landlord may have on the 
same for unpaid rent, and what is sufficient to put a pur- 

■ Lindley v. Miller, 67 111. 344. 

' Hare v. Stegall, 60 111. 380; Lindley v. Miller, 67 111. 244: Streeter 
V. Streeter, 33 111. 155. 

2 1 Chltty's Pleadings, p. 188, 6 Am. Ed. ; Hare v. Stegall, 60 111. 
380. 

16 



'24:2 CASES IN Illustration. [§ 205. 

chaser on inquiry is good notice of whatever the inquiry 
would disclose.' 

A landlord having the statutorj' lien cannot, in the 
absence of a levy of a distress warrant, maintain re- 
plevin." 

If the goods of a tenant are seized under execution or 
attachment, the landlord's lien for rent is superior and 
will hold the property. The statutory lien in favor of 
the landlord is superior to other junior liens and may be 
enforced against all but prior liens, and hona fide pur- 
chasers without notice have superior liens.' 

Where rent was to be paid in wheat, to be delivered to 
the landlord when threshed in the granary, the landlord 
has no specific part of such grain that may be attached 
and sold, until the same is so set apart to him." 

The lien of the landlord for rent is usualty created by 
statute and the extent of such lien and methods of 
enforcing it are regulated by statute." 

Where a farm is leased upon shares, if the relation of 
landlord and tenant existed, the property in the crop is 
in the tenant until harvested and divided ; until such 
division, it cannot be levied upon as the property of the i 
landlord. But in case the parties are tenants in common 
of the crop, the interest of the landlord may be levied 
upon before,di vision." 

' Watt V. Scofield, 76 111. 261. 

2 O'Malia et al. v. Glynn, 43 111. App. 51. 

3 O'Hara v. Jones, 46 111. 288. 

■* Koob V, Amniann, 6 111. App. 160. 

"Prettyman v. XJnland et al., 77 111. 206; Webster et al. v. Nichols 
et al., 104 111. 160; Wetsel v. Mayers et al., 91 111. 497; Hunter et al. 
T. Whitfield, 89 111. 229; Thompson v. Mead et al., 67 111. 395. 

^ Hansen ^•. Dennison et al. , 7 111. App. 73. 



§ 206.] PEACTICE IN DISTRESS FOE KENT. 243 

§ 206. Practice in distress for rent The action by 

distress is for rent due only, and unless the defendant 
opens the door to the investigation of other matters by 
pleading a set-off, the rent alone is the proper subject 
matter of the suit, and to this the proof should be con- 
fined. But if the tenant pleads a set-off, the landlord, 
by way of replication, may plead any matter of defense, 
such as a set-off, the same as if he were sued as defend- 
ant; but the landlord, in such oaSe, cannot recover for 
any excess of his set-off over that of the tenant. The 
prayer for judgment in such rej^lication should be as 
claimed in the declaration.' 

In an action of trespass against the landlord, for tak- 
ing the property of the tenant under a distress warrant, 
it is error to instruct the jury, that if the defendant 
took more than was necessary to pay the rent 
then due, or claimed more rent than was due, the 
distress was illegal as to the excess of property 
taken and for the I'ent not then due. The landlord 
is permitted to make a reasonable distress, and he is 
not bound to confine himself to the precise amount of 
rent due. If he were knowingly to claim more rent than 
was due for the purpose of oppression and wrong and 
levy an amount sufficient for its payment, he would be 
guilty of willfully' and maliciously uiaking an excessive 
levy ; but a mere mistake in judgment as to the value of 
the property seized or a want of knowledge of the sum 
due, cannot render him a trespasser.' 

Where any portion of the' rent remains due and unpaid, 

' Cox V. Jordan, 86 111. 560. 

= Harms v. Solem et al., 79 111. 460. 



244 PRACTICE IN DISTRESS FOR RENT. /[ § 206. 

the landlord has an undoubted right to distrain. If the 
distress is excessive or oppressive, the landlord may be 
liable in an action on the case for damages, but this will 
not render the distress illegal, so as to justify replevin of 
the, property.' 

A tenant upon a proceeding by distress may show, that 
he was evicted from a part of the premises, or that he 
was disturbed in his possession.'' 

' Lindley v. Miller, 67 111. 344. 

= Wade V. Halligan, 16 111. 507. ^ 



^§ 207, 208. J DEFINITION. 245 



CHAPTEE XX. 

EVICTION. 

Section 307. Definition. 

208. Actual eviction. 

209. Constructive eviction. 

210. Cases in illustration. 

211. Effect and consequences of eviction. 

212. Taking from tenant part of premises. , 

21 3. To discharge the tenant from rent, he must abandon 

the premises. 

214. Particular cases stated. 

215. Threats by landlord against tenant. 

216. Suspension of rent. 

217. Damages for eviction. 

§ 207. Definition. — Eviction is the taking from the 
lessee of the whole or a substantially valuable part of the 
leased premises. 

The essence oj: eviction, according to its strict mean- 
ing, consists in the dispossession, and not in the with- 
holding of possession ; in the taking away from the ten- 
ant the whole or some part of the demised premises of 
which he was in possession.' 

§ 208. Actual eviction. — Acts amounting to an evic- 
tion of the tenant must be something of a grave and 
permanent character done by the landlord, clearly indi- 
cating an intention on his part that the tenant should no 
longer continue to hold the premises.'' 

' Peck V. Hiller, 31 Barb. E. 117; Etheridge v. Osborne, 12 Wend. 
N. Y. 539. 
' Hayner et al. v. Smith et ux. , 63 111. 480. 



246 ACTUAL EVICTION. [§208. 

A forcible expulsion is not necessary to constitute an 
eviction ;. but any act on the part of the landlord, done in 
violation of the rights of the tenant and without his con- 
sent, and which deprives hira of the beneficial enjoyment 
of the premises, amounts to an eviction.' 

The lessee may be evicted, not on\y by the taking from 
him of a portion of the land itself, but by intei-ference 
with a privilege appertaining to the premises, such as 
an incorpoiieal hereditament; this will also constitute an 
eviction." 

An eviction consists of taking from a tenant some part 
of the demised premises of which he has possession. An 
act of permanent character done by the landlord in order 
to deprive, and which had the effect of depriving the 
tenant of the use of the thing demised, or of part of it, 
will amount to an eviction. An actual eviction suspends 
the rent, but does not terminate the lease. A construct- 
ive eviction may be by some acts done with the intention, 
and which have the effect of essentially Interfering with 
the tenant's beneficial enjoyment of-- the premises 
involved, or some part thereof; but in order that such 
acts shall operate as an eviction, they must be of such 
character as warrant and are followed by the tenant giv- 
ing up the possession ; and rent will not be suspended, 
unless the tenant removes from the premises in question.' 

Eviction by the lessor may be either actual or con- 
structive. 

A lessor would commit actual eviction should he cause 

■ Price V. Pittsburgh & F. W. & C. R. R. Co., 34 111. 13. 

' Peck V. Hiller, 24 Barb. R. 178. 

■' Patterson et al. v. Graham, 40 111. App. 399. 



§ 209.] CONSTEDCTIVE EVICTION. 2-4:7 

the lessee to be expelled from the premises, as being the 
keeper of a disorderly house, and should then put a new 
tenant in the premises.' 

§209. CoiiStructiYe eviction.--- A constructive evic- 
tion is committed Avhen the landlord so interferes, or 
others over whom he possesses control, ^o interfere with 
the tenant's enjoyment of the premises that, although 
the tenant is neither physically expelled nor excluded, 
yet the law considers hira justified in leaving, and he 
actually does leave. 

Thus, the lessee of a second story of a building pur- 
sued the profession of dentistry, having reserved that 
privilege in his lease. The landlord's family appear to 
have determined to do what they could indirectly to 
render the practice of his profession on the premises 
impracticable. They accordingly muiiled the door bell, 
so that his patients were sometimes obliged to employ 
fifteen or twenty minutes or more in ringing and waiting- 
before effecting an entrance, and, in some instances, left 
without succeeding in obtaining admittance, and also 
littered the stair carpet with nut-shells, dirt, and other 
filth, perpetrated other annoyances of like nature and 
addressed impertinent language to persons visiting the 
tenant on business. The tenant and his family were sub- 
jected to abusive language and other annoyances, 
"petty," said the court, "in their detail and taken, 
singly, but, in the aggregate, sufficient to render them 
very uncomfortable and unhappy." 

Th6 casual occupation by the landlord of a small por- 
tion ^of the premises, will not, in every instance, be an. 

' Hope V. Eddington, Lalor E. 43. 



-2i8 CONSTRUCTIVE EVICTION. [§209. 

eviction. Thus, it would not be an eviction for the land- 
lord to pile firewood on a portion of the leased land, pro- 
vided he would not, by doing so, interfere with the sub- 
stantial enjoyment of the premises. 

These and similar facts have been considered insufiicient 
to constitute an eviction justifying the tenant in abandon- 
ing the premises. 

So if the landlord use for immoral purposes, a portion 
of the house not let to the tenant, and the latter be seri- 
ousl}' disturbed by the loudly-riotous and obscene behavior 
of the landlord and his friends, he may, it has been held 
by the highest court of the state of New York, abandon 
the premises and claim the benefit of a constructive evic- 
tion. This latter form of constructive eviction is some- 
times called moral eviction.' 

If a railroad company enters into possession of a part 
of the demised premises by permission of the landlord, it 
would amount to an eviction of that part.^ 

The- taking possession of hotel furniture by the land- 
lord under a chattel mortgage, given by a tenant to secure 
the payment of rent due and to become due, upon 
default of its condition, is not an eviction of the tenant 
by the landlord so as to terminate the tenancy and stop 
the rent.° 

So, if the tenant yields possession of the demised prem- 
ises, in consequence of a judgment for the recovery of 
possession, to the person adjudged to be' the rightful 
owner of the paramount title, it is an eviction. A judg- 
ment alone, however, is not sufficient. The possession 
must be disturbed or yielded. This distinction Avill 

' Hope V. Eddington, Lalor R. 43. 

■' Halligan v. Wade, 31 111. 470. 

^ Morris v. Tillson et al., 81 111. 607. 



§ 210. J CASES IN ILLUSTBATION. 249 

reconcile the authorities, which otherwise may seem con- 
ilicting. The rule gathered from all the authorities 
seems to be, that a person cannot remain in possession of 
the premises and still claim that he has been turned out ; 
nor, when the judgment of a competent court has deter- 
mined that he shall deliver possession to a particular 
person, is he required to wait until he is forcibly ejected.' 

§ 210. Cases in illustration Wrongful acts of the 

landlord do not amount to an eviction in law, when 
there is neither actual nor constructive expulsion of the 
tenant." 

Acts of the landlord in interference with the tenant's 
possession, to constitute an eviction, must clearly indi- 
cate an intention on the part of the landlord that the 
tenant shall no longer continue to hold the possession.^ 

There is no constructive eviction without a surrender 
of the possession. A tenant cannot remain in possession 
and, when sued for the rent, sustain a plea of eviction 
by proof that there were circumstances which would 
have justified him in leaviiig the premises. The acts of 
interference, if acted upon by the tenant by his leaving 
the premises, may amount to an eviction ; yet, if he still 
continues to remain in possession, he would be liable for 
the rent." 

A tenant will not be held to have been evicted where, 

1 Home Life Ins. Co. v. Sherman, 46 N. Y. 370. 

= Bennett V. Bittle, 4Eawle, Pa. 399; Campbell v. Shields, 11 How 
Pr. N. Y. 165. 

^Morris v. Tillson et al., 81 111. 607; Hayner et al. v. Smith et ux., 
63 111. 430. 

* Boston R. R. Co. v. Ripley, 13 Allen, Mass. 241 ; Jackson v. Eddy, 
12 Mo. 209; Elliott v. Aikin, 45 N. H. 30. 



250 OASES IN ILLUSTRATION. [§210. 

notwithstanding there may have been disturbances, lie 
has continued to remain in possession of the entire prem- 
ises during the full term of his lease. An eviction can- 
not take place without an actual expulsion or an aban- 
doriment of the whole or a part of the premises.' 

Whether the acts of the landlord amount to an eviction 
or not, is a question of fact for the jury, in consideration 
of all the facts and circumstances. The temporary inter- 
ference with the enjoyment of the premises occasioned 
by acts of the landlord in putting in a water-pipe, pump 
and sink in an upper room of the demised premises, 
without the tenant's consent, does not amount to an 
eviction.'' 

The renting of a reserved part of the same premises to 
another for purposes that destroy their usefulness to the 
tenant upon whom a distress is levied, will amount to 
an eviction, whether the purposes for which they are 
rented are lawful or unlawful.' 

Where, under an agreement, the demise was of 
the farming lands described and mentioned in the 
lease, together with the right to mine, dig, extract 
and carry away coal from the premises, and with 
the enjoyment and occupation of so much of the sur- 
face of said lands as might be necessary to carry on 
the mining-of-coal business, held, that the farming land 
was as definite and certain as the right to mine for coal, 
and that if the grantor, in said agreemeiit prevented the 
grantee from using the farming land, it would amount to 
an eviction. A plea setting up that the grantor had 

' DeWitt V. Pierson, 123 Mass. 8; Gilhooley v. Washington, 4 N. 
Y. 217. 
- Lynch v. Baldwin, 69 111. 310. 
^Halligan v. Wade, 31 111. 470. 



§ 211.] EFFECT OF EVICTION". 251 

prevented the grantee from using such farming lands vi'as 
a good plea, and it was error to sustain a demurrer to it.' 
Where a tenant in pofesession is ordered by the sheriff 
having a vv^rit of restitution based upon a judgment 
against the landlord, to vacate the premises described in 
the writ, and he and his family leave the premises and 
commence to take their goods away, and then the party 
entitled to possession under the writ executes a lease to 
such tenant and permits him to retain possession under 
him, there is such an, eviction by judgment of court as 
excuses the tenant from the payment of rent to the first 
landlord." 

§ 311. Effect and consequences of eviction. — An 

eviction in' fact or in effect, which renders the premises 
useless, may prevent a recovery of rent.' 

Eviction of a tenant . by the landlord or a stranger 
before the end of the term, exonerates the tenant from 
the payment of rent." 

When 'the landlord forbids an under tenant to pay rent 
and collects the same himself, this will amount to an 
eviction of his tenant and exonerate him from the pay- 
ment of rent after such act. 

An eviction of the tenant by the landlord or a stranger 
at any time during the term, will discharge the tenant 
from the further payment of rent, and any act of the 
landlord which renders the lease unavailing will exonerate 

' Walker et al. v. Tuok&r^et al., 70 111. 527 
= Montanye v. Wallahan, 84 111. 355. 
^Halligan v. Wade. 31 111. 470. 
■> Wright v./Lattin et al., 38 111. 293. 



252 " TAKING PAET OF PREMISES. [§§212,213. 

the tenant from its terms and conditions, and he may 
abandon it." 

Where a lessee is, by his lessor, wrongfully evicted 
from a portion of the demised premises, he is thereby 
excused from the payment of any of the rent, although 
he remains in possession of the remaining portion of the 
premises to the end of the term.'' 

§ ai2. Taking from tenant part of premises If a 

tenant loses the benefit of any portion of the demised prem- 
ises by the act of the landlord, rent is thereby suspended. 
The act of the landlord must be something more than a 
mere trespass to have this effect ; it must be something 
of a permanent character, done with the intention of 
depriving the tenant of the enjoyment of the premises." 

It is no defense to an action for rent that the lessee 
never took possession, unless he was deprived of posses- 
sion by the lessor ; but rent ceases in case the tenant is 
deprived of possession by the landlord or another holding 
paramount title." 

Eviction is not a bar to rent that had previously 
accrued. ' 

§ :sJ13. To discharge the tenant from rent, he must 

abandon the premises " Where a tenant is evicted 

fi'om the demised premises, before, his term has expired, 
by his landlord or any one claiming under or through 
him, or by one under title paramount to that of the 

' Leadbeater v. Roth, 25 111. 587; Halligan v. Wade, 21 111. 470. 

•' Hayner et al. v. Smith et ux., 63 111. 430. 

8 Lynch v. Baldwin, 69 111. 210. 

■"Field et al. v. Herrick et al., 10 111 App. 5^1. 

'" Grommes et al. v. St. Paul Trust Co. et al., 47 111. App. 568. 



§ 2 13. J MUST ABANDON OB PAY RENT. 253 

landlord, no recovery can be had for rent accruing after 
eviction. In case a tenant should be evicted, then, and 
not until then, will he be in a position to invoke the aid 
of the court in his behalf. In the case under considera- 
tion'the court said, ' No eviction has occurred ; it will be 
time enough to complain when they have been evicted.' " 
The fact that the landlord has suffered a decree to be 
taken for the sale of the demised premises in a proceed- 
ing to- enforce a mechanic's lien, in violation of his cod- 
tract to defend the suit, ujDon which the premises may be 
sold and the tenant evicted, presents no ground for resist- 
ing the collection of rents by the landlord.' 

Although a tenant evicted from a part of the demised 
premises is not under obligation to pay rent for the part 
he occupies, as the landlord will not be permitted to 
apportion the rent by his own wrong, yet if the tenant, 
at the expiration of the term, gives his note for the I'ent 
of the premises, it may be collected.'' 

An eviction of the whole premises by another than the 
landlord, under paramount title, discharges the rent. 
An eviction of only a part of the premises hj a stranger 
will authorize an apportionment of the rent, but if the 
eviction is by the landlord and the tenant is kept out of 
possession of that part, the whole rent will be discharged.* 

A tenant cannot retain the possession of the leased 
premises and refuse the payment of rent on the ground 
of a mere constructive eviction. The question of evic- 

' Leopold et al. v. Judson et al., 75 111. 536. 
'Anderson et al. v. The Chicago M. & F. I. Co., 21 111. 601. 
sHalligan v. Wade, 21 111. 470; 3 Kent, 464; 1 Sanders, Eep. 204, 
note 2. 



254 J'AETieULAE CASES STATED. [§ 21-1:. 

tion or no eviction depends upon the circumstances and 
is in all cases to be decided b}' the jury.' 

Even if the landlord has no title, the tenant cannot 
complain till evicted.'' 

The eviction of a lessee from the demised premises uhder 
a paramount title will discharge him from the payment of 
any part of the rent which may fall due by the terms of 
the lease after such an eviction.' 

'§214. Particular cases stated. — Where a judgment 
in forcible entry and detainer is relied on as evidence that 
the tenant had been evicted and the lease terminated, 
mere verbal testimony that the landlord had recovered 
such a judgment, without showing service on or appear- 
ance by the tenant to the suit, is not suflBcient to prove 
a binding judgment that will establish the termination of 
a lease." 

Where a tenant 3'ields possession to a purchaser, at a 
foreclosure sale, of the landlord's interest, it will consti- 
tute an eviction for all purposes. ° 

If the grantee of a lessor lets to another during the 
unexpired term, who evicts the first tenant, such grantee 
becomes responsible for the act. " 

The failure of a landlord to furnish material for repairs, 
as agreed in the lease, does not amount to an eviction of 
the tenant.' 

' Patterson et al. v. Graham, 140 111. 531; Hayner et al. v. Smith 
et ux., 63 111. 430: Lynch v. Baldwin. 69 111, 210. 
« Ankeny v. Pierce, 1 111 263. 
3 Stubbings v. The Village of Evanston, 136 111. 37. 
" Cheney v. Bonnell, 58 111. 268. 
' Conley v. Schiller, 34 N. Y. Sup. 473. 
« Wright V. Lattin et al., 88 111. 293. 
'' McFarlane v. Pierson, 81 111. App. 566. 



§ 3 15. J THREATS AGAINST TENANT. 2.55 

Whether the premises can be abandoned, and pa3'ment 
xof rent successfully resisted, when it is not the conduct 
of the landlord and his guests, but that of other tenants, 
which is thus objectionable, the landlord, although aware 
of their conduct, taking no measures to prevent its con- 
tinuance, seems to be left in doubt ; but some of the lower 
courts have held that, under such circumstances, the 
landlord having leased without the intent of causing a 
violation of law, and having no connection with the 
improper acts, payment of rent cannot be excused.' 

§ 215. Threats by landlord against tenant Threats 

by a landlord, and conduct indicating desire that the ten- 
ancy terminate, majr, in an aggravated case, justify aban- 
donment of the premises by the tenant. 

Thus, under an agreement by the owner to execute a 
lease, certain persons had entered into possession of the 
premises, and the owner, having subsequently prepared a 
lease not in accordance with the previous agreement, upon 
their'declining to execute it in the form in which it had 
been drawn up, told them that "they must sign this 
lease or none; that they Avere not his tenants, and if they 
did not sign it he would make it hot for them ; that he 
had them in his power, and if they did not sign it he 
would turn them into the street." Thej' remaining 
unmoved by his threats, he posted a notice that the 
premises were to let, offered them to various persons, 
stating that the occupants were no tenants of his, and 
that he would show them that they would have to go. 
It was held that the tenants, under these circumstances-, 

'Gilhooly v. Washington, 3 Sandf. R. 330; Townsend v. Gilsey, 7 
Ab. Pr. (N. ,S.) 59. 



256 SUSPENSION OF EENT. [§216. 

might abandon the preniises, and that they were not 
liable to pay rent for the period during which, in spite of 
the lessor's conduct, they had occupied.' But if a land- 
lord, under a mistaken impression that the terra of the 
lease would expire at a date earlier than it was actually 
to end, should enter into negotiations to lease to other 
persons, and should post a bill on the premises announc- 
ing that they were to let, but, on discovering his mistake, 
should cease all interference, the tenant would not be 
justified in abandoning his lease. ° 

As there can ' be no eviction unless the tenant be 
expelled from or abandon the premises, should he remain 
in possession for any considerable period after being sub- 
jected to conduct by his landlord claimed by the tenant 
to have amounted to constructive eviction, he could not 
resist successfully payment of rent on account of it.' 

§ 216. Suspension of rent.^The rule that eviction 
suspends the payment of rent, results from the meaning 
of the term" "rent" and from the obligations of the 
relations between landlord and tenant. Rent is com- 
pensation for the use of land, and what the tenant pays 
rent for is quiet possession or beneficial enjojnnent. 
When, therefore, the use or possession ceases by the act 
of the landlord, the consideration for the payment of the 
rent ceases." 

' Greton v. Smith, 33 N. Y. R. 245. 

' Ogilvie V. Hull, 5 Hill, K 52. 

3 Edgerton v. Page, 30 N. Y. R. 381 ; Edwards v. Candy, 14 Hun 
(N. Y. S. C), R. 596; Leopold v. Judson, 75 111. 536; Patterson v. 
Graham, 140 111. 531; Hayner v. Smith etux., 63 111 435; Lynch v. 
Baldwin, 69 111. 310. 

^ Grommes et al. v. St. Paul Trust Co. et al., 147 111. 634. 



§ 217. J DAMAGES FOE EVICTIOK". 257 

Acts by the landlord in interference With the tenant's 
possession, to constitute an eviction, must clearly indicate 
an intention on the part of the landlord that the tenant 
shall no longer continue to hold the premises, Such acts 
relieve the tenant from the payment of rent accruing 
after his possession ceases, but rent already accrued and 
overdue is not forfeited by the eviction.' 

§ 217. Damages for eTiction Eviction by the land- 
lord from any portion of the premises works a suspension 
of the whole of the thereafter accruing rent. The land- 
lord will not be permitted to apportion his own wrong. 

On being thus evicted from the whole premises, the 
tenant may recover the difference between the value of 
the lease for the unexpired term, and the stipulated rent, 
together with any other damages necessarily restilting 
from the eviction, the amount of difference between the 
expense of removal at the time of the eviction, and what 
such expense would be at the end of the term, if at the 
latter period it would be less, being recoverable, among 
other items of damage. 

On eviction by title paramount from a portion of the 
premises, the rent is apportioned, ceasing as to the por- 
tion from which the tenant has suffered eviction. 

.j^ominaLdamages only can be recovered from the land- 
lord on eviction by title paramount, the obligation to 
pay rent being suspended ; but rent which, during the 
last six years immediately preceding the eviction, has 
been paid, may, it seems, be recovered back with interest, 

• Grommes et al. v. St.' Paul Trust Co. et al., 147 111. 634. 

17 



238 DAMAGES FOE EVICTION. [§ 217. 

the tenant being answerable to the true owner for the 
amount as mesne profits. 

If a tenant is evicted from land after his crops are 
planted, their value at the time of eviction is the measure 
of his damages. ' 

' Olmstead v. Burke, 25 111. 86. 



218. J PEOVISIONS AS TO BONDS. 259 



CHAPTEK XXI. 
APPEALS AND APPEAL BONDS. 

Section 218. Statutory provisions as to bonds. 

319. Appeal bond indispensable. 

320. Bond — By whom approved. 

231. What gives the upper court jurisdiction. 

222. The penalty of the bond. 

22S(. Conditions of the appeal bond. 

324. What the bond should be. 

225. Bonds in larger amount may be required. 

236. Sureties on appeal bonds. 

327. Bonds must be in writing. 

228. What will discharge the surety. 

339. Co-sureties. 

330. The defense of. the sureties. 

§ 218. Statutory provisions as to bonds. 

Defendani's Appeal Bond — New Bonds. 

Sec. 19. If the defendant appeals, the condition of the 
bond shall be, that he will prosecute such appeal with 
effect and pay all rent then due or that raa}' become due 
before the final determination of the suit, and also all 
damages and loss which the plaintiff may sustain by rea- 
son of the withholding of the premises in controversy, 
and by reason of any injury done thereto during such 
withholding until the restitution of the possession thereof 
to the plaintiff, together with all costs that may accrue 
in case the judgment from which the appeal is taken is 
affirmed or appeal dismissed ; which said bond shall be in 
sufficient amount to secure such rent, damages and costs, 



'260 APPEAL BOND INDISPENSABLE. [ § iil9. 

to be ascertained and fixed by the court. And the court 
in which the appeal may be pending, may require a new 
bond in a larger amount, if necessary, to secure the 
rights of the parties ; and in case of continuance, may 
require another bond to be given to further secui'e the 
same. 

Plaintiff'' s Appeal Bond. 

Sec. 20. If the plaintiff appeals, the condition of .the 
bond shall be as in other cases of appeal, when taken by 
the plaintiff, except as otherwise provided by law. 

Appeal — ^yrit of Restitution — Bond. 

Sec is. If any party shall feel aggrieved by the ver- 
dict of the jury or decision of the court, upon any trial 
had under this act, such party may have an appeal, to 
be taken to the same courts, in the same manner and 
tried in the same way as appeals are taken and tried in 
other cases. Provided, the appeal is prayed and bond is 
filed within five (5) days from the rendition of the judg- 
ment, and no writ of restitution shall be issued in any 
case until the expiration of said five (5) days. 

§ 219. Ai)peal bond indispensable The only way in 

which the defendant can appeal from the judgment ren- 
dered in forcible entry and detainer is by praying the 
same and filing his bond in an amount fixed by the trial 
court within five days of the rendition of such judgment. 
There can be no appeal pending and no court in which 
the appeal is pending until the bond is executed and 
filed, and no legal bond can be made until the amount is 
fixed by the court. Necessarily, the trial court alone 



§ 21 9. J , APPEAL BOND INDISPENSABLE. 261 

can determine the amount. The new bond that may be 
required pending the appeal, can only be made by the 
court upon the showing that such new bond is necessary 
to secure the rights of the partie?.' 

Failure to appeal and file a bond within five days from 
the rendition of the judgment is fatal in an action of 
forcible entry and detainer ; the time for filing such bond 
cannot be extended.'' 

A party appealing, in order to have an appeal, must 
file his bond within five days from the rendition of the 
judgment.' 

The clerk of the court to which an appeal is taken in 
a suit of forcible entry and detainer has no authority to 
ascertain and fix the appeal bond ; this must be done by 
the trial court." 

Where a justice of the peace issues a summons in an 
action of forcible entry and detainer, without an affidavit 
having been previously filed, an appeal to the Circuit 
Court by the defendant will not waive or cure the want 
of jurisdiction of the justice over the subject matter. 
Such a case is not within the rule, that an appeal by the 
defendant will cure the want of summons before the 
justice.' 

Where a defendant, in an action of forcible entry and 
detainer, appears and goes to trial in the Circuit Court 
without objection to the regularity of the proceedings, 

' Fairbank v. Streeter, 143 111. 236. 

^ Kenny v. Jones et al., 37 lU. App. 615. 

" Fairbank v. Streeter, 41 111. App. 434. 

■■ Bowlby V. Robinson et al., 45 111. App. 531. 

"Stolberg v. Ohnniacht, 50 111. 442. 



262 BOND BY WHOM APPEOVJiD. [§§220,221. 

he thereby admits their regularity and the validity of the 
demand of possession.' 

§ 220. Bond by whom approved — Where the defend- 
ant in an action of forcible entry and detainer appeals 
from the judgment of the justice of the peace to the Cir- 
cuit Court within such time that the case will not stand 
for trial at the first term of the court, the court may 
require the party taking the appeal to file a bond in 
addition to the appeal bond, to secure the rents which 
may accrue between that term and the term to which the 
case is necessarily continued, and on neglect of the party 
to comply with the rule in that regard, the court may 
dismiss the appeal." 

§ 221. What gives the upper court jiirisdictiou — 

Where a defendant appeals from a judgment against 
him in a justice court, by filing his appeal with the clerk 
of the Circuit Court, but files no transcript from the 
court below, the Circuit Court will have no jurisdiction 
■of the subject matter and cannot dismiss the appeal on 
the appearance of the appellee for want of prosecution in 
the absence of appellant and render judgment for dam- 
ages against the latter for costs." 

Where an appeal from a justice of the peace is per- 
fected before a clerk of the Circuit Court and no sum- 
mons and alias summons are issued and returned not 
found, and the appellee has not entered his appearance 
in writing ten days before the commencement of the 
term, or appeared at a prior term, it is error to dismiss 

' Dunne v. Trustees of Schools, 39 111. 578. 

'Kider v. Bagley, 47 111. 365. 

"Sheridan v. Bejrdsley et al., 89 111. 477. 



§ 221. J UPPER COUET JUEISDICTION. 263 

the appeal for want of prosecution, when reached on the 
docket, on motion of the appellee.' 

Where a complaint in an action of forcible entry and 
detainer has no jurat attached to it, and the defendant 
went to trial before the justice of the peace without 
making any objection to the complaint, and took an 
appeal to the Circuit Court, and there for the first time 
entered a motion to dismiss the suit on account of the 
defect in the complaint and, upon that motion being 
overruled, went to trial without excepting to the ruling 
of the court, and the transcript of the justice showed 
that the complaint Avas sworn to, it was held that, 
although the filing of a complaint was jurisdictional, the 
-defendant had waived the defect that existed in the com- 
plaint. * 

The sixth section of the " Act to amend chapter 43, of 
the revised statutes of 1845, entitled ' forcible entry and 
detainer,' " in force February 16, 1865, does not repeal 
that part of the amended statute which requires the 
appeal bond in cases of forcible entry and detainer to 
contain a clause for the payment of all rents becoming 
due, etc., but simply requires the bond to contain addi- 
tional guaranties for the benelit of the plaintiff.' 

When the appeal bond given by the defendant in an 
action of forcible entry and detainer contains no clause 
for the payment of rent, as required by the statute, or 
any words from which the payment of rent can be 

1 Sheridan v. Beardsley et al., 89 111. 477. 
'- Center v. Gibney, 71 III. 557. 

2 Pitt et al. V. Swearingen, 76 III. 250. 



26-i PENALTY OF THE BOND. [j 



292 



implied, no recovery of rent can be had in a suit upon 
the same.' 

§ 232. The penalty of the bond.— An appeal bond 
given upon an appeal to the Circuit Court taken by 
the defendant -in an action for forcible detainer, 
should be in a penalty sufficient to secure the paj^nent, 
not only of the costs of the suit, but also the rents 
becoming due from the commencement of the suit until 
the final determination thereof.'' 

Where an appeal from a justice of the peace is per- 
fected by filing the appeal bond in the office of the jus- 
tice, no summons is required to be issued to the appellee ; 
in such case the appellee may, without having entered 
his appearance in the Circuit Court, and upon his motion, 
have the appeal dismissed for want of prosecution.^ 

But if an appeal be perfected by filing the appeal bond 
in the office of the clerk of the Circuit Court, a summons 
must issue to the appellee ; in that case, the appellant, 
using proper diligence in procuring process, the appellee, 
if not served with the process, would have no right, by 
entering his appearance, to have the appeal dismissed for 
want of prosecution.' 

"Where in appeals, in foi-cible entry and detainer cases; 
a bond is given, and subsequently a new bond is given 
in a larger amount, as provided by the statute, the latter 
operates as a satisfaction and extinguishment of the 
former bond." 

' Pitt et al. V. Swearingen, 76 111. 350. 

■ Billings V. Lafferty, 31 111. 318. 

'Boyd V. Kocher, 81 111. 395. 

■» Boyd V. Kocher, 31 111. 395. 

' Poppers V. The International Bank, 10 111. App. 531. 



§ 223. ] CONDITIONS OF APPEAL BONDS. 265 

If a party on appeal in forcible entry and detainer 
omit to use proper 'diligence in procuring the process, 
the appellee may, without having been served with sum- 
mons, by entering his appearance in the Circuit Court 
hold the same position he would if duly served.' 

A motion to amend a bond on an appeal from a justice 
of the pfeace in a case of forcible entry and detainer is 
addressed to the sound discretion of the court, and its 
decision can not be assigned for error.' 

Under the statute as heretofore given on page 260, 
appeals may be perfected by filing bond and praying an 
appeal either in the justice court where the action was 
tried, or by application to the clerk of the Circuit Court 
(or of the Superior Court of Cook County), and the jus- 
tice of the peace, or the clerk of the higher court, is 
bound by laAv to take a proper bond to secure the appel- 
lee in rents, costs and damages, pending the appeal ; and 
in case the bond is insutBcient, the appellee can have the 
difficulty remedied by moving the court to require a new 
and sufficient bond. Yet it is the duty of the justice 
and the clerk of the court to require a sufficient bond, 
and if loss occurs to the. appellee by reason of an insuffi- 
cient appeal bond, an action of trespass on the case will 
lie against the clerk who wrongfully approves an appeal 
bond which provides a penalty less than is required by 
,la\v.= 

§ 223. Conditions of appeal Ibonds — " The conditions 
of an appeal bond are controlled by the character of the 

' Boyd V. Kocher, 31 111. 295. 

- Harlan v. Scott, 3 Scammon (111.), 65. 

'felllings V. Laflferty, 31 111. 318. 



266 AVHAT THE BOND SHOULD BE. [§ 224. 

judgment from which the appeal is taken. Where the 
appeal operates as a supersedeas, the' bond should secure 
the debt, damages, and costs. An irregular appeal bond 
is good as far as it goes, if the cause proceeds upon the 
faith of such bond. The word ' damages ' in an appeal 
bond means the damages in consequence of the appeal ; 
that is, the interest at the rate fixed by statute upon the 
amount of the judgment below, from the date of its ren- 
dition to the time of entering the judgment above ; and 
the damages are recoverable against the surety whenever 
the appeal is not prosecuted with eflfect; that is to say, 
where the final recovery is for the same or a larger 
amount than the judgment below." ' 

§ 224. What the hond should be The appeal bond 

in forcible entry and detainer cases is the same as that 
required in other appeals, with the addition of a clause 
for the payment of rents pending the appeal. \ 

While a strict compliance with the statute as to the 
time within which the bond must be filed and as to the 
approval thereof is required, the rule has never been 
applied to defects in the bond, such as a lack of seal and 
failure to make it in sufficiently large penalty, or to 
incorporate in it the conditions which the statute directs 
that it shall contain.' 

If an appeal bond contains conditions not required by 
the statute, such conditions are surplusage and not bind- 
ing.' 

' Amer. & Eng. Encyo. of Law, p. 466. 
" Tolman et al. v. Green et al., 39 111. 325. 
"Fairbank v. Streeter, 41 III. App. 434. 
-•■Tolman et al. v. Green et al., 39 111. 225. 



§ 225. J BOND IN LAEGEE AMOUNT. 267 

Uponan appeal from a justice of the peace in an action 
of forcible entry and detainer, the appellate court, upon 
dismissing the appeal^ has no jurisdiction to enter judg- 
ment for costs against the security in the appeal bond ; 
such a judgment would be void.' 

In an action on an appeal bond in forcible entry and 
detainer, damages resulting from the forcible entry and 
detention of the premises, apart from the rental thereof, 
are not recoverable." 

Where an appeal bond, in a case of forcible entry and 
detainer, was conditioned for the paj'ment of all damages 
that had or should accrue by the reason of forcible entry 
and detainer, it was held, that this condition was not 
required by the statute and was void.' 

An appeal bond should cover accruing rents." 

Where an appeal bond in forcible entry and detainer 
is conditioned to pay all rents that may have accrued, 
and fails to provide for the rents to become due, it is 
wholly insufficient." 

As the defendant in an action of forcible detainer can 
give no appeal bond until the amount thereof is fixed by 
the trial court, he cannot take an appeal from a judg-* 
ment against him until the amount of his bond is fixed 
by such court." 

g 235. Bond in larger amount may be required. — 

The judge of the Circuit Court, on an appeal from the 

' Keary v. Baker, 33 Mo. 603. 

■' Tolman et al. v. Green et al., 39 111. 235. 

' Tolman et al. v. Green et al. , 39 111. 33.5. 

■> Rucker v. Wheeler et al., 39 111. 436. 

' Wood V. Tucker, 66 111. 376. 

« Fairbank v. Streeter, 143 111. 326. 



268 SURETIES ON' APPEAL HOXDS. [§226. 

judgment of a justice of the peace in an action of forci- 
ble detainer, is not concluded by the penalty of the appeal 
bond as fixed by the justice of th« peace or clerk, but 
may require bond to be filed in a larger sum, and in case, 
of failui'e to do so, dismiss the appeal." 

An appeal bond in such case, conditioned for the pay- 
ment of all damages for the wrongful detention of the 
pi-emises, and a second bond filed by leave of the court, 
-conditioned for the payment of all rents, costs and dam- 
ages for the wrongful detention of the premises, were 
both wholly insufficient, both in form and substance.' 

Where the plaintiff in an action of iorcible entry and 
detainer is wrongfully kept out of the possession of the 
premises during the pendency of an appeal, the value of 
the use and occupation or the reasonable rental value is 
the correct measure of damages in an action on the 
appeal bond.' 

A surety on a lease becomes responsible for the pay- 
ment of the rent reserved in the lease, in the event of a 
default by the tenant. The landlord, before resorting to 
his remedy against the surety, is not obliged to demand 
the rent from the tenant or institute proceedings to 
recover the same or notify the Surety of the non-paj'- 
ment by the tenant.* 

§ 226. Sureties on appeal bonds. — The performance 
by the tenant of the covenants and agreements of the 

' Wood V. Tucker, 66 111. 376. 
-' Wood V. Tucker, 66 111. 276. 
' Shunick et al. v. Thompson, 35 111. App. 619. 
* Duoker v. Rapp, 41 N. Y. Sup. Ct. 335; Voltz v. Harris et al., 40 
111. 155; Taylor v. Taylor, 64 Ind. 356. 



§ -227.] BONDS MUST BE IN WEITING. 269 

lease may be secured or guaranteed by a collateral under- 
taking of a surety. This undertaking need not be in a 
separate instrument. A person who has subscribed a 
lease, together with the lessee, may be shown to be a 
surety instead of a joint lessee; but, probably, not so 
as to impair the remedy of a lessor who is without notice 
of such person being a guarantor only, nor, perhaps, 
where the lease itself expresses that he signs as a prin- 
cipal.', 

§ 227. Bonds must be in writing The statute of 

Illinois provides (ch. 59, sec. 1) as follows, viz. : 

That no action shall be brought whereby to charge the 
defendant upon any special promise to answer for the 
debt, default, or miscarriage of another person, unless the 
promise or agreement upon which such, action shall be 
brought, or some memorandum or note thereof, shall be 
in writing, and signed by the party to be charged there- 
with, or some other person thereunto l^y him lawfully 
authorized. 

An appeal bond must be executed by the person named 
as security in the order granting the appeal ; if not so 
executed, the appeal will be dismissed ; for instance, the 
order provided that the appeal should be granted upon 
appeal botid being filed with " Henry Service" as surety 
and the bond was filed with J. H. Servoss as surety ; 
tjiis was insufficient and the appeal dismissed.' 

Jifust Be Made hy Appellant. , 

Again, the Supreme -Court' held an appeal bond 

' Eosenbaum v. Gunter, 3 E. D. Smith R. 415. 
- Shinkell v. Letcher et al., 40 111. 48. 



370 WHAT WILL DISCHAEGB SUEETY. [§228. 

insufficient which was signed by the landlord of the 
plaintiff as principal, holding that the bond must be made 
by the plaintiff himself.' 

Filing XeAv Bond Discharges the Old One. 

If the appeal bond is insufficient ande new one is filed 
and approved, the approval and acceptance of the new 
bond releases and discharges the sureties on the old bond 
and no recover}' can be had on the first bond.° 

If by agreement of the lessor the obligations of the 
lessee under the lease are so modified, as to result in impair- 
ing or delaying, or to render less efficient the lessor's re- 
course against the lessee, the surety will be thus discharged. 
Such, as to surety for payment of rent, would be the 
effect of an agreement, in binding form, by the lessor 
with the lessee, to extend the time of payment of rent ; 
but a release or extension of time of payment of rent due 
would not change the surety's responsibility for pajnnent 
of rent thereafter to accrue.^ 

§ 228. What will discharge the surety. — The surety 
will be discharged bj' an\' act of the lessor, wliich 
enlarges, but he will not be released in consequence of an 
agi'eement of the lessor which plainly decreases, his liabil- 
ity, such as an agreement reducing the rent ; nor, it seems, . 
in consequence of an agreement which indirectly renders 
loss less probable, as one that rent shall be payable 
monthly instead of quarterly, the latter being the manner 
in which it has been reserved in the lease. 

' Armson v. Forsythe, 40 111. 49. 

- International Bank v. Pappers, 105 111. 491. 

^Coe V. Cassidy, li N. Y. R. 133. 



§229.] CO-SUEETIES. - 271 

A surety is not generally entitled to notice of the 
default of his principal. 

The lessor, in suing, may join in a single action the 
lessee and his surety where the surety's undertaking has 
been embodied in the lease itself, — as if he has subscribed 
that instrument "A. B., surety for" ihe lessee; but 
where the guaranty is contained in a separate instrument 
a distinct action against the surety seems to be requisite. 

Any defense relating to the incurring, by the lessee, 
of the obligation, and to the default in it, for which the 
action has been brought, is as available to the surety, as, 
in an action by the lessor against the lessee, it would be 
to the latter ; but in a cause of action of the lessee against 
the lessor, independent of the incurring of this obliga- 
tion, and independent of such default, the surety is not 
entitled to interpose 

§229. Co-sureties. — Touching co-sureties, it is said, 
" The obligation of one or two co-sureties is to pay the 
whole debt. The right of a surety is, if he pays the whole 
debt, to recover one-half from his co-surety, or the whole 
from the principal. ' If he pays less than the whole debt, he 
cannot recover from his co-surety, though he may from 
the principal, more than the amount which he has paid in 
excess of the moiety which, as between him and his 
co-surety, it was his duty to pay. A parol release of 
one surety would not discharge his co-surety, but a writ- 
ten release, or a discharge by operation of law of one 
surety will fully discharge his cosurety.' 

■Morgan v. Smith, 70 N. Y. R. 537, 543. 



272 DEFENSE OF THE SURETY. [ § 230. 

When suit is brought against obligors on an appeal 
bond and only one is served with process and no appear- 
ance is entered for the other, it is proper to take judg- 
ment against the one upon whom service is had. There 
is no force in the objection that judgment should have 
been rendered against both defendants or none. ' 

§ 230. The defense of the surety Where a surety 

is sued at law, he must, if he can, make his defense 
there, and if he neglects to do so he can not afterward 
have relief in chancery. It is a defense for a surety at 
law that the creditor has wrongfully deprived him of 
recourse to collateral security held by the creditor, to 
which the surety had the right of subrogation, and this 
even when the contract to which the suretj^ is a party is 
under seal. In an action upon a contract, whatever, 
either at law, or by the rules of equity to which courts 
of law can give effect, operates to discharge or extinguish 
the claim upon the contract, is a defense thereto. The 
common law rule, that no specialty can be avoided but by 
an instrument of as high a nature, and that a judgment, 
being a security of the highest character, can not be 
avoided by a writing not under seal, has been departed 
from in this State only in so far as to allow defenses in 
actions upon contracts, analogous or equivalent to pay- 
ment ; and in actions upon instruments which are cov- 
ered by the statute concerning negotiable instruments, 
want of, or fraud in the consideration is fatal to recovery ; 
but as to a sealed instrument, not within that statute, 
fraud in the consideration can not at law be made a 

' Coursen v. Browning et al. , 86 111. 57. 



§ 230. J DEFENSE OF THE SQRETY. 273 

defense. JSTor to .such an instrument can it be? made a 
defense at law that the parties have modified or changed 
it by a subsequent agreement not under seal ; and this is 
so, though the defense is made by a surety, and the 
change is by a written but not sealed contract, upon 
adequate valuable consideration. Groundsof defense not 
pressed must be considered waived.' 

' Hawkins v. Harding, 37 111. App. 565. 



274 FORMS. 



CHAPTER XXII. 

FORMS. 

Demand for possession. 

Notice to quit by an agent. 

Demand by an attornej'. 

Notice to quit by the owner. 

Notice to terminate weekly tenancy. 

Ten days' notice to quit for default. 

Another form of notice to quit. 

Notice to quit for landlord by the agent. 

Landlord's five days' notice. 

Sixty day notice to terminate tenancy. 

Another form of the same. 

Sixty day notice to be served by an agent. 

Thirty day notice to terminate a tenancy from naonth to month. 

A demand for possession disclosing the agent. 

Written authority to agent or attorney. 

Written authority to attorney to sue, etc. 

Complaint in forcible entry and detainer in Illinois. 

Summons in {oroible entry and detainer. 

Appeal bond in forcible entry and detainer. 

Writ of restitution. 

Agreement for a lease. 

Agreement not to obstruct lights. 

To renew a lease. 

Agreement of surety in lease. 

Agreement to let furnished apartments. 

Form of guarantee of rent, etc. 

Assignment and acceptance of lease. 

Assignment of lease. 

Consent to assignment. 

Assignment by lessor. 

New lease with full powers. 



FORMS. 275 



DEMAND FOR POSSESSION. 

To-..- 

I hereby demand the immediate possession of the following 
described premises: (describing them), now held by you.' 

RICHARD ROE. 
Chicago 18 



NOTICE TO QUIT BY AN AGENT. 

To ". 

You are hereby notified by me, the authorized agent (or attor- 
ney) of Richard Rob, and in his belialf , to quit and deliver up the 
possession of the following desci-ibed premises: (describing them), 
held by you of the said Richard Roe. 

Dated this day of , A. D. 188... 

JOHN DOE, 
Authorized Agent for Richard Roe. 



DEMAND BY AN ATTORNEY. 

To--- 

I hereby demand the immediate possession of the following des- 
cribed premises: (describing them). 

RICHARD ROE. 
By John Doe, his Attorney. 

NOTICE TO QUIT. 

To --.. 

I hereby give you notice to quit and deliver up, on the 

day of , A. D. 188-., the possession of the following 

described premises, now held by you of me: (Here describe 
premises). 

RICHARD ROE, 

Owner. 
Chicago, 188 

' Rev. Stat. , chap. 57, sec. 3. 



276 FOEMS. 



NOTICE TO TERMINATE A WEEKLY TENANCY. 

To - 

I hereby notify you to quit and deliver up,' at the end of the 
next full week of your tenancy immediately succeeding the service' 
of this notice, the possession of the following described premises, 
held by you of me: (describing them). 

RICHARD ROE. 

Chicago , 18 



TEN DAY NOTICE TO QUIT ON ACCOUNT OF DEFAULT 
IN TERMS OF THE LEASE. 

To A. B. 

You are hereby notified that, in consequence of your default in 

(hei-e insert the character of the default) of the premises now 

occupied by you, bemg (here describe the premises), I have elected 

to determine your lease, and you are hereby notified 1;o quit and 

deliver up iDossession of the same to me within ten days of this 

date. 

Chicago, day of , 188_..' 

C. D. 



' Kev. Stat. , chap. 80, sec. 9. 

Note: Where the forfeiture of a lease is desired, it must be 
shown that the necessary acts to declare a forfeiture have been 
done by the landlord. A forfeiture will not be inferred, but all 
the requisite steps must be taken. Cheney v. Bonnell, 58 111. 368; 
Cone V. Woodward, 65 111. 477. 



FORMS. '277 



NOTICE TO QUIT. 

To Mr. C. D. (or if it be doubtful who is tenant, ^' To C. D. or 

whom else it may concern"). 

Sir: You will please take notice that you are hereby required 

to quit and deliver up, on the day of , A. D., 

18.., the possession of the house and premises (or "rooms and 
apartments,'' or " farm, lands, and premises" ) which you now hold 

of me, situated in the town (or " city," or " village") of , 

in the county of , and State of Illinois, more fully des- 
cribed as follows: (here insert the description, and where the time 
of the commencement of . the tenancy is doubtful add, if not 
doubtful omit:) provided your tenancy commenced at that time of 
the year (or "month" or "week"); or otherwise that you quit 
and deliver up the possession of the house, etc.,' at the end of the 
year (or "month" or "week") of your tenancy, which shall 
expire next after the end of sixty (or thirty) days from the time 
of your being served with this notice. 

Dated... day of , A. D., 18 

A. B. 



NOTICE TO QUIT FOR LANDLORD BY AN AGENT. 

To Mr. O. D. . 

Sir: I do hereby, as the agent for and in behalf of your land- 
lord, A. B.,"of.- , give }'ou notice to quit and deliver up, 

etc. (as in last form), which you now hold of the said A. B., 
situated, etc. 
Dated, etc. Yours, etc., 

E. F. 
Authorized agent for the said A. B.' 



' Moore's Justice, 



■278 FOEMS. 



LANDLORD'S FIVE DAY NOTICE. 

FOR ILLINOIS. 
To .' 

You are hereby notified, that there is now due the sum of 

Dollars and j.. .Cents, being rent for the premises 

situated in the City of Chicago, in Cook County, in the State of 
Illinois, and known and described as follows, viz:.. 



And You are Further Notified, that payment of said sum so 
due, has been and is hereby demanded of you, and that unless 

payment thereof is made on or before the day of 

A. D. 18 , your Lease of said premises will be 

terminated __is hereby authorized to receive 

said rent, so due. 

Dated this day of. A. D. 188.,. 

- - - - Landlord . 

By... Agent. 



FoiiMS. 279 



SIXTY DAY NOTICE TO TERMINATE A YEARLY TENANCY. 

To A. B.: 

You will please take notice that you are required to quit and 

deliver up on the day oi , 18..., the possession 

of the following described premises, to wit: (describing them), 
which you now hold of me; or otherwise, that you quit and de- 
liver up possession of the said premises at the end of the year of 
your tenancy, which shall expire next after the end of sixty days 
from the time of your being served with this notice. 

Chicago, , 18 0. D. 

Landlord and Owner. 

ANOTHER FORM. 

To 

You are hereby notified that I have elected to determine your 
tenancy of the following described premises, to-wit: (here describe 

premises), situated in the city of...'. , county of .., 

and State of Illinois, at the expiration of the current year, to-wit: 

on the day of..- , 18 , and you are hereby 

notified and required to surrender the possession of the said prem- 
ises to me on that day. 

Dated at this day of , 18__. 

A. B. 

If such notice is to be served by an agent, use the following: 

T-© A. B. : 

You will please take notice that you are required to quit and 

deliver up, on the day of _, 18 , the following 

described premises, to wit: (describing them), which you now hold 
gf me; or otherwise, that you quit and deliver up possession of 
the said premises at the end of the year of your tenancy, which 
shall expire next after the end of sixty days from the time of your 
being served with this notice. 

And I hereby appoint _ -.my agent to serve this 

notice for me and in my behalf, and to receive possession of said 
premises of you for me. 

Chicago, ;., 18..-. A. B. 

Landlord and Owner. 



280 FORMS. 



THIRTY BAY NOTICE TO TERMINATE A TENANCY FROM 

MONTH TO MONTH, OR FOR A GREATER PERIOD, 

BUT LESS THAN ONE YEAR. 

To 

You are hereby notified to quit and deliver up, at the end of 
the month of your tenancy, expiring immediately aftpr the end of 
thirty days from the date of the service of this notice upon you, 
the possession of the following described premises held by you of 
me: (describing them). 

Dated this. day of , A. D., 18.... 

RICHARD ROE. 



FORM OF DEMAND DISCLOSING AGENT. 

To James M. Nixon: 

Sir: You will please take notice that I demand immediate pos- 
session of those certain premises now occupied by you, known as 
(giving description), of which said premises you have jjossession 
under a certain lease, dated the 8th day of May, A. D., 1873, the 
same being from me to you, from the 9th day of May, A. D., 
1873, for and during and until the 6th day of June, A. D., 1873, 
which said term has now expired. Me. Joel Lull is hereby con- 
stituted my agent to receive such possession from you, and is 
authorized to, and will receive the same for me. 

Yours, etc., 

GEORGE NOBLE. 
Dated Chicago, June 7, 1872. 

(See 70 111. 33.) 



AV'RITTEN AUTHORITY TO AGENT OR ATTORNEY. 

I hereby authorize John Doe to make demand for, and receive 
possession of, the following described premises: (describing them), 
now in possession of 

RICHARD ROE. 
Chicago, , 188... 



FORMS. 281 



WRITTEN AUTHORITY TO AGENT OR ATTORNEY. 
I hereby appoint John Doe my lawful agent (or attorney), with 
full power to do all acts and -take all legal steps necessary to 
recover the possession, for me, of the following described premises: 

(describing them), now held by.._ , and to receive 

possession of the same for me. 

, Chicago, ,188__. RICHARD ROE. 

COMPLAINT IN FORCIBLE DETAINER. 
(Under Act of 1874) 



STATE OF ILLINOIS 
County 



:}■ 



complain.. to Esq., a Justice of the Peace in and for 

said County and State, that--he-_the said __ _ 

entitled to the possession of the following described premises, in 
said County, to wit: _ 



and that _ - - 

unlawfully withholds the possession thereof from the said. 



Wherefore. -he.. pray. .a summons, in pursuance of the Statute in 
such case made and provided. 
Dated A. D., 18.... 



282 FORMS. 

SUMMONS. 

EORCIBLE ENTRY AND DETAINER, OR DETAINER. ' 

State of Illinois, 1 The People of the State of Illinois, to the 

y ss. Sheriff or any Constable of said County * 
County of ) — Greeting: 

You are hereby commanded to summon 



-.to appear before me, at 

my office in in said County, on the.. day 

of -.A. D. 188--, at o'clock, M., to answer to the 

Complaint of - __ 

wherefore unlawfully withhold, .from - . -the possession 

of certain premises in said County, described as follows, to-wit: 



and hereof make due return, as the law directs. 

Given under my hand and seal, this - day of 

, A. D. 188... 

[Seal]. 

Justice of the Peace.' 

'Revised Stat., chap. 57, sec. 5. 



FORMS. 283 

APPEAL BOND IN FORCIBLE ENTRY AND DETAINER. 
Know all Men by these Presents, That we.. ._. 



of the District of and State of Illinois, are, held and 

firmly bound vmto 

« 

in the penal sum of Dollars, lawful money of the 

United States, for the payment of which well and truly to be 
made, we bind ourselves, our heirs, executors and administrators, 
jointly and severally, firmly by these Presents. 

Witness our hands and seals, this -.._ day of 

A. D., 18._.. 

The Condition op the above Obligation is such, that 
Whereas, The said 

did on the -day of.- -A. D. 18..., before 

Esq. , a Justice of the Peace for the 

said District of , recover a Judgment against the 

above bounden in an action for forcible 

detainer of certain premises in said District, and for restitution 
thereof, and for costs of suit, from which said judgment the said 

1 ha taken an appeal to the 

._ Court of _ 

County, in the State aforesaid. Now, if the said^ 

__. ..shall prosecute appeal with effect, 

and pay all rent now due, and that may become due before the 
final termination of said suit, and all damages and loss which the 
plaintiff -.may sustain by reason of the withholding of the posses- 
sion of the premises, and by reason of any injury done thereto 
during such withholding, together with all costs, until the resti- 
tution of the possession thereof to the plaintiff..; in case the Judg- 
ment from which the appeal is taken is affirmed, then the above 
obligation to be void, otherwise to remain in full force and effect. 

Taken and Approved by Mb this~) 

.day of.... A. D. 18.. [ [Seal.] 

, 1. [Seal.] 

Justice of the Peace. I [Seal.] 

(or Judge of the Circuit Court.) J 



284 FOKMS. 



WRIT OF RESTITUTION. 

State op Illinois, ) The People of the State of Illinois, to the^ 

- ss. Sheriff or any Constable of said Conn ty 
County.) — Greeting: 

Whereas, — -__ 

lately obtained before me a Judgment against __ 



__ in an action of forcible _ detainer, 

and for restitution of the premises following, to wit: 



and also for costs: 

These are, therefore, to command you, in the name and by the 
authority of the said People, to dispossess the said ,. 



and restore the said 

to the possession of said premises. And you are also hereby com- 
manded, that of the goods and chattels of the said defendant 

in your County, you make the sum of .'. .dollars, and 

cents, being the amount of costs in said 

suit. Hereof make due and immediate service, and return this 
writ to me. 

Given under my hand and seal, at _ 

this dav of A. D. 188... 



[Seal.] 

Justice of the Peace. 



FORMS. 285 

AGREEMENT FOR A LEASE. 

Memorandum of an agreement made this day of , 18., 

between A. B. of the one part, and C. D. of the other part. 

The said A. B. agrees to grant, and the said C. D. agrees to 

take a lease of those premises, etc., , with the appurte- 

^nances, for the term of years, to commence and be com- 
puted from the day of next, inclusively, at the yearly 

rent of dollars, to be paid half yearly on the day of 

and on the -day of . 

The said A. B., his heirs or assigns, will, at the request of the 
said C. D., his executors, administrators or assigns, execute a lease 
of the said premises to the said C. D. , his executors, administra- 
tors or assigns, for the term and at the rent aforesaid, to be pay- 
able as aforesaid. 

The said lease shall contain the following covenants: 

[Here set out proposed covenants.] A. B. 

C. D. 

NOT TO OBSTRUCT HGH.TS, ETC. 

And that the said party of the first part, his heirs or assigns, 
shall nT)t, by building or otherwise, obstruct or darken any win- 
dow or other source of light or air to the said premises. 

TO MAKE KEXEWAL. , 

And that the said party of the first part, his heirs or assigns, 
will, at the expiration of the term of this lease, execute to the 
said party of the second part, his executors, administratoi's or 
assigns, a new lease of the said premises, upon his or their demand, 

for the further term of years, for the yearly rent of 

dollars, payable ; such new lease to contain the same 

covenants as this present lease. 

AGREEMENT OP SURETY. 

In consideration of the execution of the within lease, and for 
and in consideration of the payment by the lessor of the sum of 
• one dollar, receipt whereof is hereby acknowledged, I, the under- 
signed, do hereby guarantee to the said. (the lessor), and to 

his heirs, executors, administrators and assigns, payment of the 

rent mentioned in the said lease, and also performance by , 

the lessee, his executors, administrators and assigns, as well of the 
covenant (or agreement) to pay such rent as observance and per- 
formance of all the other covenants (or agreements) in the said 
lease contained, and on his or their part to be performed. 

Dated, _ , 18..... 



286 FOB^MS. 



AGREEMENT TO LET FURNISHED APARTMENTS. 

Memorandum of agreement made and entered into this 

day of , 18.-., between A. B., of , of the 

one part, and C. D. , of , of the other part. The said A. 

B. doth hereby agree to let to the said C. D., and the said C. D. doth 
hereby agree to take all those three rooms on the first floor of the 
dwelling-house situated, etc., and also all and singular the furni- 
ture, articles and effects now being in the said rooms respect- 
ively, and also tHe other articles and things comprised in the 
schedule hereunder written, for the term of six months, to be 

computed from the day of... --.next, at the rent of 

dollars per month; and in consideration of the premises, 

the said C. D. doth agree, at the expiration of the said term, to 
deliver up the premises and furniture, articles and effects hereby 
agreed to be let, in as good a condition as the same now are in, 
reasonable wear and tear excepted, and that he shall and will 
duly replace all such parts thereof, respectively, as may be broken 
or injured by the said C. D. during his tenancy, the said A. B. not 
to do or suffer to be done, anything in the said house of a noisy, 
noxious, or offensive nature; provided that if at any time during 
the said tenancy the said C. D. shall be annoyed, vexed, or dis- 
turbed by anything of a noxious, noisy, or offeusive nature con- 
trary to the stipulations in that behalf above contained, then it 
shall be lawful for the said C. D. , by notice in vcriting, to termi- 
nate the tenancy hereby created, and to quit possession of the said 
rooms without giving any previous notice to quit, anything here- 
inbefore contained to the contrary in any wise notwithstanding, 
and thereupon the said C. D. shall be liable to pay rent pro rata 
to the time of quitting. 

[Annex schedule.] 

(Signed) A. B. 

C. D. 



FORMS. 287 



GUARANTEE. 

For value received, '...hereby guarantee the payment of 

the rent and the performance of the covenants by the party of 
the second part in the within lease covenanted and agreed, in 
manner and form as in said lease provided. 

Witness hand, .and seal.. this day of A. D. 18.-. 

---- - [Seal.J 

[Seal.] 

ASSIGNMENT AND ACCEPTANCE. 

For value received. ._ hereby assign all. 

right, title, and interest in and to the within lease unto 

heirs and assigns, and in consideration of the consent to this 

assignment by the lessor, guarantee the performance by 

said .- of all the covenants on 'the part 

of the second party in said lease mentioned. 

In consideration of the above assignment and the written con- 
sent of the party of the first part thereto, _ 

hereby assume and agree to make all the payments and perform 
all the covenants and conditions of the within lease, by said party 
of the second part to be made and performed. 

Witness hand. .and seal. .this day of A. D., 188... 

[Seal.] 

- [Seal.] 

[Seal.] 



LESSOR'S ASSIGNMENT. 

In consideration of One Dollar, to.. in hand 

paid, hereby transfer, assign, and set over 

to_ _ 

and assigns, interest in the within lease, and the 

rent thereby secured 

Witness hand-.and seal. .this day of A. D. 188... 

_ [Seal.] 



288 FOEMS. 



ASSIGNMENT OF LEASE. 

This Indenture, Made on this _ -day of , in the 

year eighteen hundred and , between , of 

._ , party of tlie first part, and , of , party 

of the second part, witnesseth : That the said , party of 

the first part, for and in consideration of the sum o^. _ 

dollars, lawful money of the United States of America, to him in 
hand paid, receipt whereof is hereby acknowledged, hath assigned 
and sold, and hereby doth assign, sell, transfer and set over unto 
the said party of the second part, and to his executors, adminis- 
trators and assigns, a certain indenture of lease of premises known 

as- , which lease bears date on the day of , 

in the year one thousand eight hundred and _.., and was 

execvited by one _., to the said , party of the first 

part hereto, to have and to hold the same and all rights there- 
under for the unexpired term of the said lease, unto the said party of 
the second part, his executors, administrators and assigns, subject, 
however, to the covenants, conditions, exceptions and reservations 
therein contained 

In witness whereof, the said party of the first part hereto hath 
hereunto set his hand and seal on the day and in the year first 
above written. 

Sealed and delivered '\ 
in presence of 
----- - ) - — [Seal.] 



CONSENT TO ASSIGNMENT. 
--hereby consent to the assignment of the within 



lease to - -- - 

on the express condition, however, that the assignor shall remain 
liable for the prompt payment of the rent and performance of the 
covenants on the part of the second party as therein mentioned, 
and that no further assignment of said lease or sub-letting of the 

premises or any part thereof shall be made without 

written assent first had thereto. 
Witness hand. .and seal. .this day of A. D., 188... 

, [Seal.] 



FOKMS. 289 



NEW LEASE WITH FULL POWERS. 

This Indenture, Made this day 

of in the year of our Lord One Thousand 

Eight Hundred and Eighty Between 

- -- party 

of the first part, and _ _ 

..: - party of the second part, 

WITNESSETH, That the party of the first part, for and in con- 
sideration of the covenants and agreements hereinafter mentioned, 
^ be kept and performed by the party of the second part, has 
demised and leased to the party of the second part the premises 
in the City of Chicago, County of Cook, and State of Illinois, 
known and described as follows: 



to be occupied 

and for no other purpose whatever. 

To HAVE AND TO HOLD the same unto the party of the second 

part, from the day of. 

A. D. 188.., until the day of 

A. D. 188... 
And the party of the second part, in consideration of said 
19 



290 FORMS. 

demise, does covenant and agree with the part}' of tlie first part as 
follows: 

First. To pay as rent for said demised premises the sum of 

__ ^ _ i. Dollars, 

payable in installments of 

- - -Dollars, 



each in advance upon the first day of each and every month of 
said term at the ofiice of CHICAGO, ILL. 

Second. That he; has examined and knows the condition of 
said premises, and has received the same in good order imd 
repair, except as herein otherwise specified, and that no represen- 
tations as to the condition or repair thereof have been made by 
the party of the first part or the agent of said party, prior to or 
at the execution of this lease, that are not herein expressed or 
indorsed hereon; and that he will keep said premises in good 
repair, replacing all broken glass with glass of the same size and 
quality as that broken; and will keep said premises and appur- 
tenances, including catch-basins, vaults, and adjoining alleys, in a 
clean and healthy condition, according to the city ordinances, and 
the direction of the proper public officers, during the term 
of this lease, at his own expense; and will, without injury 
to the roof, remove the snow and ice from the same when neces- 
sary, and clean the snow and ice from the sidewalks in front of 
said premises; and upon the termination of tliis lease, in any way, 
will yield up said premises to said party of the first part in good 
condition and repair (loss by fire and ordinary wear excepted), 
and deliver the keys at the oflSce of _ 



Third. That the party of the first part shall not be liable for 
any damage occasioned by failure to keep said premises in repair, 
and shall not be liable for any damage done or occasioned by or 
from plumbing, gas, water, steam or other pipes, or sewerage, or 
the bursting, leaking or running of any cistern, tank, wash-stand. 



FOEMS. 291 

•water-closet or waste pipe in, above, upon or about said building 
or premises, nor for damage occasioned by water, snow or ice being 
upon or coming through the roof, skylight, trap door or otherwise', 
nor for any damages arising from acts or neglect of co-tenants or 
other occupants of the. same building, or of any owners or occu- 
pants of adjacent or contiguous property. 

FODRTH. That he will not allow said premises to be used foi; 
any purpose that will increase the rate of insurance thereon, nor 
for any purpose other than that hereinbefore specified, nor to be 
occupied, in whole or in part, by any other person, and will not 
sub-let the same nor any part thereof, nor assign this lease without, 
in each case, the written consent of the party of the first part first 
had, and will not permit any transfer, by operation of law, of the 
inter^est in said premises acquired through this lease; and will not. 
permit said premises to be used for any unlawful purpose, or pur- 
pose that will injure the reputation of the same or of the building 
of which they are a part, or disturb the tenants of such building or 
the neighborhood: and will not permit the same to remain vacant 
or' unoccupied for more than ten consecutive days; and will not 
permit any alteration of or upon any part of said demised premises, 
nor allow any signs or placards posted or placed thereon, except by 
written consent of first party; all alterations and additions to said 
premises shall remain for the benefit of the lessor unless otherwise 
provided in said consent as aforesaid. 

Fifth. To pay (in addition to the rents above specified) all 
water rents and gas bills taxed, levied or charged on said demised 
premises, for and during the time for which this lease is granted, 
and in case no water rents are levied speciflfcally upon said prem- 
ises, to pay the _ part of all water rents levied or 

charged upon the biiilding in which said demised premises are 
situated; and in case said water rates and gas bills shall not be paid 
when due, sai^ party of the first part shall have the right to pay 
the same, which amount so paid, together with any sums paid by 
said party of the first part to keep said premises and their appur- 
tenances in a clean and healthy condition, as hereinbefore specified, 
are hereby declared to be so much additional rent, and shall be 
due and payable with the next installment of rent due thereafter 
under this lease. 



292 FORMS. 

Sixth. To allow the party of the first part free access to the 
premises hereby leased for the purpose of examining or exhibiting 
the same, or to make any needful repaits or alterations of said 
premises which said first party may see fit to make; also to allow 
to have placed upon said premises, at all tirhes, notice of ',' For 
Sale" and "To Rent," and will not interfere with the same. 

Seventh. If said party of the second part shall abandon or 
vacate said premises, the same shall be re-let by the party of the 
first part for such rent and upon such terms as said first party may 
see fit; and if a sufficient sum shall not be thus realized, after 
paying the expenses of such re-letting and collecting, to satisfy 
the rent hereby reserved, the party of the second part agrees to 
satisfy and pay all deficiency. 

Eighth. At the termination of this lease, by lapse of time or 
otherwise, to yield up immediate possession to said party of the 
first part, and failing so to do, to pay as liquidated damages, for 

the whole time such possession is withheld, the sum of 

dollars per day; but the provisions of this clause shall not be held 
as a waiver by said first farty of any right of re-entry as herein- 
after set forth; nor shall the receipt of said rent or any part 
thereof, or any other act in apparent affirmance of the tenancy, 
operate as a waiver of the right to forfeit this lease and the term 
hereby granted for the period still unexpired, for any breach of 
any of the covenants herein. 



It is Expressly Agreed, Between the parties hereto, that if 



FORMS. 293 

default be made in the payment of the rent abov^ reserved, or any 
part thereof, or in any of the covenants and agreements herein con- 
tained, to be kept by the party of thd second part, it shall be lawful 
for the party of the first part or the legal representatives of said 
party, at any time thereafter, at the election of said first party, or 
the legal representatives thereof, without notice, to declare said 
term ended, and to re-enter said demised premises, or any part 
thereof, either with or without process of law, and the said party of 
the second part or any person or persons occupying the same to 
expel, remove and put out, using such force as may be necessary 
so to do, and the said premises again to re-possess anji enjoy, as 
before the demise, without prejudice to any remedies which might 
otherwise be used for arrears of rent or preceding breach of cov- 
enants; and said party of the second part further covenants and 
agrees that said party of the first part, or the representatives or 
assigns Of said party, shall have, at all times, the right to distrain 
for rent due, and shall have a valid and first lien upon all prop- 
erty of said party of the second part, whether exempt by law or 
not, as security for the payment of the rent herein reserved. 

The party of the second part hereby irrevocably constitutes 

^ - - - - .or any attorney 

of any court of ~ record of this State, attorney for him in his name, 
on default by him of any of the covenants herein, and upon 
complaint made by said first party, his agent or assigns, and filed 
in any such court, to enter his appearance in any such court- 
of record, waive process and service thereof, and trial by jury, 
and confess judgment against him in favor of said party of the 
first part, or his assigns, from time to time, for any rent which 
maybe due to said party of the first part, or the assignees of said 
party, by the terms of this lease, with costs and ..dol- 
lars attorney's fees, and to waive all errors, and all right of appeal 
from said judgment and judgments, and to file a consent in writ- 
ing that a writ of restitution or other proper writ of execution 
may be issued immediately; said party of the second part hereby 
expressly waiving all right to any notice or demand under any 
statute in this State relating to forcible entry and detainer. 

It is fobtheb, agreed by the parties hereto that, after the 
service of notice, or the commencement of a suit, or after final 



294 roEMS. 

judgment for possession of said premisps, the first party may 
receive and collect any rent due, an^ the payment of said rent 
shall not waive or affect said notice, said suit or said judgment. 

In case said premises shall be rendered untenantable by fire, 
or other casualty, the lessor may at his option terminate this 1 ase, 
or repair said premises witliin thirty daj's. and failing so to do, or 
upon the destruction of said premises by fire, the term hereby 
created shall cease and determine. 

The party of the second part further covenants and agre^ to 
pay and discharge all reasonable costs, attorney's fees and expenses 
that shall be made and incurred by the party of the first part in 
enforcing the covenants and agreements of this lease; and all the 
parties to this lease agree that the covenants and agreements herein 
contained shall be binding upon, apply and inure to their respect- 
ive heirs, executoi-s, administrators and assigns. 

Witness the hands and seals of the parties hereto, the day and 
year first above written. 



In presence of 



1 [Seal.] 

J- . [Seal.] 

I 

J - [Seal.] 



FORMS. 295 



SHORT COUNTRY LEASE. 

This Indenture, Made this day of ., 

A. D. 189..., between 



party of the first part, and. 



--- -.party of the second part, 

WiT.NESSETH, that the party of the first part, in consideration of 
the covenants of the pa^ty of the second part, hereinafter set 

forth, do by these presents, lease to the party of the- second 

party, the following described property, to-wit: 



in the 

County of and SlJ&,te of _ 

To Have and to Hold the Same to the party of the se ond part, 

from the day of... , 189 , to the 

, day of '.- , 189 And the party 

of the secood part, in consideration of the leasing the premises as 
above set forth, covenants and agrees with the party of the first 

part to pay the party of the fii'st part, at 

as rent for the same, the sum of , ..dollars, 

payable as follows, to-wit: . ._ 



And the Paety of the Second Part covenants with the party 



296 FORMS. 

of the first part, that at the expiration of the term of this lease., 
he.. will yield up the premises to the party of the first part, with- 
out further notice, in as good condition as when the same were 
entered upon by the party of the second part, loss by fire or 
inevitable accident and ordinary wear excepted. 

It is Further Agreed by the party of the second part, that 

neither. _he.. nor legal representatives will underlet 

said premises or any part thereof, or assign this lease without the 
written assent of the party of the first part first had thereto. 

And it is Further Expressly Agreed between the parties 
hereto, that if default shall be made in the payment of the rent 
above reserved, or any part thereof, or any of the covenants or 
agreements herein contained to be kept by the party of the second 

part, it shall be lawful for the party of the first part or.. 

legal representatives, into and upon said premises or any part 
thereof, either with or without process of law, to re-enter and 
re-possess the same at the election of the party of the first part, 
and to distrain for any rent that may be due thereon upon any 
property belonging Ip the party of the second part. And in order 
to enforce a forfeiture for non-payment of rent it shall not be 
necessary to make a demand on the same day the rent shall 
become due, but the failure to pay the same at the place aforesaid 
or a demand and a refusal to pay on the same day, or at any 
time on any subsequent day shall be suflicient; and after such 
default shall be made, the party of the second part and all persons 

in possession under shall be deemed guilty of a forcible 

detainer of said premises under the statute. 

And it is Further Covenanted and Agreed between the 

parties aforesaid, 



The covenants herein shall extend to and be binding upon the 



FORMS. 



29T 



heirs, executors and administrators of the parties to this lease. 

Witness the Hands and Seals of the parties aforesaid, the 
day and year first above' written , 

, /. [Seal.] 

[Seal.] 



SKELETON LEASE. 

This Indenture, Made this day of 

the year of our Lord one thousand eight hundred and eighty, 
between _ 



of the first part, and. 



-. of the second part. 

WITNESSETH, that the said party of the first part, for and in 
consideration of the rents, covenants and agreements hereinafter 
mentioned, to be kept and performed by the said party of the 

second part, executors, administrators and assigns, ha 

demised and leased, and by these presents do demise and lease 

unto the said party of the second part, executors, admin- 
istrators and assigns, all those premises lying and being in. 

in the Countj' of and State of 

_ .known and described as follows, to wit^ 



To Have and to Hold the said demised premises, with the> 



398 FORMS. 

appurtenances, unto the said party of the second part, 

executors administrators and assigns, for and during the term of 
__ from the l day of .in the 

year of our Lord one thousand eight hundred and eighty. 

for and during, until - 

And the said party of the second part, 

in consideration of the leasing of the premises aforesaid, tjy the 
said party of the first part to the said party of the second part, 
does covenant and agree with the said party of the first part...... 

heirs, executors, administrators and assigns, to pay the said party, 
of the first part, as rent for the said demised premises, the sum 

of , -. 



It is Agreed, By the said party of the second part, that neither 

nor legal representatives, will underlet said 

premises, or any part thereof, or assign this lease, without the 
written assent of said party of the first part first had and obtained 

thereto, and that will not use or permit the said premises 

to be used for any purpose prohibited by the laws or ordinances 
of the town, city, county or state where situated, or for any 
hazardous purpose whatever, or purpose calculated to increase the 
insurance. 



And the Said Party of the Second Part further covenants 



FOEM8. 299 

"with the said party of the first part, that said second party has 
received said demised premises in good order and condition, and 

at the expiration of the term in this lease mentioned... 

will yield up the said premises to the said party of the first part 
in as good order and condition as when the same were entered 
upon by the said party of the second part, loss by fire, or inevi- 
table accident, or ordinary wear excepted; and also will keep said 

premises in good repair during this lease, at own 

expense. Provided always, and these presents are upon the express^ 
condition, that if it shall so happen that the rent above reserved, 
or any part thereof , be behind or unpaid at the times or on the 
day or days above mentioned for the payment thereof, or in case 
of the non-performance of any of the covenants made by the said 
party of the second part, at any of the times mentioned for the 
performance thereof, then and from, thenceforth it shall and may 

be lawful for the said party of the first part, 

heirs and assigns, into the said demised premises, or any part in 
the name of the whole to re-enter, and the same to have again, 
retain, re-possess and enjoy, and tlie said party, of the spcond 

part, heirs, executors, administrators or assigns, and all 

others, tenants or occupiers of the said premises hereby demised, 
or any part thereof, thereout 6v therefrom, utterly to expel, put 
out and remote; and from and after such re-entry made, this 
lease, and every part thereof, shall cea«e and be absolutely void, 
as it respects the covenants to be performed by the said party of 

the first pai't. And the said party of the first part, for 

heirs and assigns, do .hereby covenant and agree to and 

with the said party of the second part, heirs, executors, 

administrators or assigns, paying the rent above reserved in man- 
ner aforesaid, and olaserving, keeping and performing all and 
singular the covenants and agreements hereinbefore mentioned on 

_ ..and their parts to be kept and performed, 

shall and may peaceably' and quietly have, hold, occupy, possess 
and enjoy the said demised premises, with the appurtenances, for 
and during the said term, without any lawful let, quit, hindrance 

or molestartion, to the Said part of the first part,... 

heirs and assigns, or any other person or persons claiming or to 
claim, by, from or under him or them, or any other person or 
persons having or lawfully claiming any right in the said premises. 

And it is Further Covenanted and Agreed, by and between 



300 



FOBMS. 



the parties, that the party of the second part shall pay and dis- 
charge all costs and attorneys' fees and expenses that shall arise 
from enforcing the covenants of this lease by the party of the 
first part. 

In "Witness Whereof, the parties hereunto have interchange- 
ably set their hands and seals, the day and year first above 
written. 



Signed, sealed and delivered 
in presence of 



[Seal.] 
.[Seal.] 
.[Seal.] 
.[Seal.] 



INDEX. 



A 

PAGE 

ABANDONMENT. 

abandonment of possession 113 

not eviction without 350, 249 

must pay rent or go out 251 

tenant may abandon for failure to repair 202 

A.CGEPTANCE OP PEEMISES— DELIVERY OF KEY. 

delivery of key as indicating a terniination of the 

tenancy 126 

effect of delivering key and paying rent after suit 

brought 136 

ACCRUING RENT. 

unqualified conveyances pass rent accrued 42 

who entitled to collect rents on sale 43 

accruing rent not reserved passes '. - - 43 

but not collectible until attornment __ 42 

accepting rent from assignee does not discharge 

lessee -- --- - 43 

landlord may accept assignee as sole tenant - 48 

landlord estopped to collect after surrender — 43 

lessor's consent to assignment does not discharge 

tenant from rent -_-.. .. 43 

what the tenant may show as to assignment of 

lease -. - - - 44 

rent not collectible contrary to Statute of Frauds... 44 

■landlord entitled to rent until conveyance 44 

administrator cannot collect rents 44 

.rent belongs to the heirs 45 

when assignment of lease void or voidable 45, 46 

how it affects iaasignee , 45 

.assignee of lease acquires equitable title to rents 45 

301 



302 INDEX. 

PAOE: 

Accruing Kent— Continued. 

covenants m a lease pass with it to the new 

owners - - 46. 

rights of the landlord in case of voidable assign- 
ment - - . ' - - - 46. 

an agreement not to under-let does not prevent 

assignment --- 46- 

ACTION -NATURE OF THE. 

in some states parties indicted 62 

liberty regulated by law _ 62 

the object of this action to preserve the peace ^-- 62 

it forbids taking forcible possession 62 

in the State of Illinois a civil proceeding 63. 

an action at law relating to real property 63 

most generally a civil proceeding alone _. 63 

the remedy two-fold 63 

indictment at common law 63 

proceedings under the Statute 63 

the common law affords no civil remedy 63 

no writ of restitution awarded in a criminal pro- 
ceeding 64 

if no statute on the subject an indictment may be 

had 64 

the only issue to be tried 92' 

the party entitled to possession should be plaintiff-. 92 

the questions that go to make up the issue.. 92 

what possession is required _. 98 

as to the possession of unoccupied lands 76, 93 

what lands embraced in premises 93. 

statutory provisions . 67 

what a forcible entry means _ 67 

taking possession by force forbidden.. 67 

a party wrongfully kept out has no right to resort 

to force 67 

the Missouri law as to force _ _ 67 

if a tenant agrees to leave on a particular 'day, the 
landlord has no justification in ousting him by 

force 67 

if the tenant vacates the landlord can break open 

his own house 68- 



INDEX. SOS 

, PAGE 

Action— Nature of the — Continued. 

any expulsion by force illegal . 68 

ACTION— WHO MAY MAINTAIN. 

the action lies only to obtain possession of real 

property 96 

the only one who can make complaint _ 96 

lawful possesson must be averred in plaintiff 96 

the capacity in which he holds not important 97, 101 

devisee, when grantor of lessor, may maintain the 

action __ ^ __ _ 97 

right of action vests in the party whose possession 

has been invaded _-. 97 

one in actual possession claiming the fee may main- 
tain the action : 97 

the right or the wrong of the possession unim- 
portant..- ,97 

the action will lie against the owner who' obtained 

possession by collusion 97 

only party entitled to possession at the commence- 
ment of the suit can sue ..l.i ...^... 98 

a. stranger to a decree turned out by virtue of the 

decree may bring action _ 98 

one joint tenant can not recover exclusive posses- 
sion of another 98 

one who has possession for the owner may main- 
tain the action 98 

ACTION WHEN JUDICIAL SALE HAS BEEN MADE. 

where the premises have been sold at judicial sale 86 

the sixth statutory cause of action... 86 

this action lies where lands and tenements have been 
conveyed by grantor in possession under a judg- 
ment or decree 86 

when sold under a power of sale in a mortgage.... 86 

demand in writing must be made - 86 

right of action under a judicial sale 86 

" right of action under a trust deed or mortgage 85 

date of title at foreclosure sale 86 

purchaser at foreclosure sale not bound by mort- 
gagor's lease , 87 



304 INDEX. 

PAOE 

Action When Judicial Sale has Been Made— Continued. 

against whom the action will lie under this clause. 87 

what the plaintiff must prove to sustain the action. 87 
writ of possession and forcible detainer concurrent 

remedies __ 87 

who liable for detention of premises after sale 87 

against whom suit brought 88 

only against party to judgment 88 

in these actions the title is put in issue 88 

the evidence to support the action _.. .__ 88 

I judgment, execution and sheriff's deed 88 

these are indispensable requisites _ _ 88 

demand of possession must be made 89 

plaintiff must show that defendant got possession 

under party tothe trust deed:..- _.. 89 

what must be proved to recover in this action 89 

a stranger to the judgment liable if his right ac- 
quired subject to the judgment lien __ 89 

•otherwise he is not liable 90 

plaintiff must show privity of estate between the de- 

fendant'and mortgagor _. 90 

when third parties maybe restored to possession 90 

if a tenant attorns to the purchaser the relation of 

landlord and tenant is created _. 90 

what notice required before commencing suit under 

this section _ _ 90 

demand in writing only need be made 91 

ACTION WILL LIE— AGAINST WHOM THE.— 

the general rule _ 104 

will lie against tenant or any person claiming 

under him. _ 104 

if a party direct others to take possession he is 

liable _ 104 

a sub-tenant occupies the place of the tenant and 

is liable to the action 104 

party entering in good faith not liable 105 

defendants — who included as_ 105 

result of a party ousted by mistake... __ 105 

a tenant continuing in possession after notice of 

new-terms is liable _ 105 



INDEX. 305 

PAGE 

Action Will Lie— Against Whom The. — Contiaued. 

action will lie against a city 107 

~ the tenant or any one claiming under him liable.. 71 
person making the forcible entry and any one com- 
ing in under him, boUusively, is liable ..- 71, 83 

an occupant in good faith can not be made a wrong- 
doer. 73, 74 

a breach of the peace is not necessary to constitute 

a forcible entry 72, 73 

opening a gate and removing property is a forcible 

entry. ' 73 

in case lease authorizes entry by landlord 73 

detention after demand unlawful 73 

payment of taxes not proof of ownership. 78 

acts of ownership not amounting to actual posses- 
sion insufficient-. 74 

acts implying title do not prove possession. 74 

acts indicating ownership which will not support 

the action 74 

permission by a father to his son for a long time 

is not sufficient possession. 74 

a license that may be i-evoked by notice, insuffi- 
cient to support the action 75 

entry into vacant lands 75 

the action will lie for entry into vacant lands or 

tenements : 75 

what acts constitute possession of unoccupied land... 76 
the owner of unoccupied lands deemed to have pos- 
session 76 

pre-emption claims without occupation insufficient... 76 

AGAINST A TENANT HOLDING OVER. 

fourth cause of action under the Statute ' 76 

against a tenant holding over after the termina- 
tion of lease 76-73 

how far the possession of tenant vvill avail the land- 
lord : 76 

a party procuring possession by i fraud liable 77 

possession confided to the tenant must not be tam- 
pered with - 77 

20 



306 INDEX. 

PAGE 

Against a Tenant Holding Over— Continued. 

tenant should not betray the interest of the land- 
lord... 77 

tenant must act in good faith to his landlord 77 

ACTION WILL NOT LIE. 

will not lie to recover an incorporeal right 106' 

will not lie for possession of a ferry 106 

does not lie for forcible entry of a weir 106 

will not lie to recover personal property 106 

when wife is not a necessary party .' ^ 106 

will not lie against several defendants on one 

demand .-- 106 

or against two or more who held in severalty 106 

where several tenants how rent should be paid 107 

Illinois Statute compared with English Act 107 

if plaintiff has parted with the actual possession.. 

he can not maintain the action^. .i 107 

the action will not lie against the claimant not in 

possession _ 107 

ACTIONS FOE RENT. 

meaning of the term debt 314 

rent reserved in a lease is a debt 314 

the amount of rent furnishes the measure of damages. 314^ 
a party holding as owner not liable for use and 

occupation .,. 315 

AGENCY. 

notice by agent must discover. 131 

how proven 134 

case on a sufficiency of notice 134 

attorney in fact may act by another 134 

a weekly tenancy terminated by one week's notice .. 134 

notice should be fixed by the rent day 134 

in case of tenancy at will notice proper evidence 135 

tenancy at will terminated by demand only.. 135 

parol tenancy from year to year terminated by 

sixty days notice.. 135 

lease terminated by the death of the lessor 135 

no notice required where lease expires by its terms.. 125 



inm:x. 307 
t 

PAGE 

AGENT. 

authority of, must be under seal, when 3 

may distrain for rent ___ 131, 275 

when possession of husband as, of wife 191 

may sign and serve notice to quit 133 

authority of, must be proved on trial . . _ _ 121 

written authority to _.. 380 

form of notice to quit by __ 375, 279 

form of demand disclosing. ._ _ 375 

AMENDMENT. 

of complaint,- when should be made... 143 

of proceedings may be allowed in discretion court. . 148 

may be made before or after verdict 143 

APARTMENTS. 

lodger not justified in quitting, without notice 36 

when separate, considered distinct mansion houses.. 36 

APPEAL AND APPEAL BONDS. 

defendant's appeal bond 359 

plaintiff's appeal bond i 259 

new bonds 360 

writ of restitution 260 

appeal bond indispensable. 360 

failure to file appeal bond in five (5) days fatal 361 

court must fix the amount of bond 361 

what defects cured by the appeal !. 361 

irregularity waived by gbing to trial , 261 

bond — by whom approved 263 

form of bond'. 283 

APPEAL BOND— CONDITIONS OF. 

controlled by the judgment of the court below 265 

appeal operates as a supersedeas. 266 

defective appeal bond may be amended 266 

what damages in appeal bond mean ._. 266 

what the appeal bond should be -1 266 

defects as to seal and penalty may be amended 266 

useless conditions in appeal bonds simply surplusage. - 266 
upper court can not enter judgment against surety 

on appeal bond on dismissal 367 



308 INDEX. 

PAGE 

Appeal Bond — Conditions of.— Continued. 

damages other than the rental value not recover- 
able. 367 

conditions not required by the statute void 367 

appeal bond should cover accruing rents __- 367 

bond not providing for accruing rents insufficient... 367 
defendant can not appeal until bond fixed by^ the 

court 367 

new bonds in larger amounts may be taken 368 

instances of insufficient bonds. _ 368 

APPURTENANCES. 

include what 50 

unconnected property not included 51 

ASSIGNEE. 

has same rights as original landlord .._ __ 40 

of tenant, has same rights as original tenant 40 

of reversion, when not liable on covenants in lease.. _ 42 

when right of action will not pass to 42 

has right of action to recover possession 41 

ASSIGNMENT OF THE LEASE. 

leases assignable _ 40 

if assignment forbidden lease still not void 40 

assignment contrary to lease voidable 40 

landlord may assign the rent to accrue _ 40,42 

taasignee of rent may collect in his own name 40 

title can not be assigned on lease _ _ 40, 

a recognized assignee can sue for rent 40 

how equity treats an assignment of lease 41 

how assignment can be made 41 

lessee has power to assign the lease unless forbid- 
den in lease 41 

results if tenant assign contrary to lease 41 

a void assignment becoming executed stands 41 

an agreement in a lease runs with the land 41 

lessor may convey parts of his reversion _ ____ 43 

such covenants to convey are divisible 43 

result when lessor conveys pendente lite 43 



INDEX. 309 

PAGB 

ATTORNMENT. 

what attornment means _ 38 

payment of rent a sufficient attornment 38 

where the landlord sells the fee , 38 

when the grantee authorized to sue for rent 38 

purchaser can not collect rent without attornment.- 39 

result of attornment to another than the lessor 39 

promise of the tenant to pay rent sufficient 39 

the tenant's right to attorn to owner 39 

attornment acknowledges the new landlord 39 

possession must be surrendered to landlord before 

attornment __- 39 

B 
BOARDING HOUSE. 

distinction between inn and 27 

liability for negligence 30 

BONDS. 

appeal bonds : 259 

new bonds 260 

bond indispensable for appeals 260 

bonds — by whom approved 262 

bonds — conditions of... 265 

BO OND ARIES. 

d^eds may be used to show 165 

c 

COMPLAINT, THE. 

the complaint is the foundation of the action 142 

must describe the property with reasonable cer- 
tainty .- -- 142 

instances of insufficient description. 143 

the statute provides what it should be __ 143 

if defective objection when made 148 

amendment should be made in lower. court 143 

a motion to quash filed in lower court 143 

no law requiring justices of the peace to mark the 

papers filed - 148 

the clerk of the higher court or the justice may 

issue summons 144 



310 IKDEX. 

PAOfi 

Complaint, The.— Continued. 

must show that the relation of landlord and ten- 
ant existed — - 81 

it must show the holding over after demand 81 

must show facts that presume a tenancy pi 

a sub-lessee liable to eviction in this action. 81 

in trial, the holding over proven 81' 

extent of right in Such case _._ 83 

against a purchaser who fails to comply with the 

contract of purchase _. 83 

the lif th statutory cause _ 83 

when the action will lie __ 83 

written demand must be made _ 83 

possession of defendant may be by himself or 

others under him 83 

vendor can bring' action under this clause. 83 

purchaser can not deny vendor's right 83 

relation of vendor and vendee must exist. 83 

possession must have been under Contract of pur- 
chase. 83 

must be a failure to comply with the contract 83 

must be before obtaining a deed to the premises 83 

where a deed is made as a mortgage the mort- 
gagee is uot liable 83 

must be a contract of purchase 83 

four essentials to sustain this action 83 

what proper evidence in the action 83 

action fails unless essential elements proven... _ 83 

the action will lie under the Act of 1861 84 

others claiming under the vendee stand in his shoes 85 
the grantee of the vendee can claim no greater 

rights than his grantor 85 

land conveyed for the security of money is not a 

purchase , 85 

any reservation is inconsistent with an absolute 

deed " 85 

COMPLAINT, DATE OF. 

a mistake of years in date is immaterial 161 

restitution awarded on dismissal of appeal... 161 



INDEX. 311 

PAGE 

Complaint, Date op.— Continued. 

the death of defendant after suit brought is no bar 

to recovery.-., 161 

judgments against defendants should be several, 

not joint , 161 

on^ action will not lie against two holding in 

severalty 161 

notice in writing the same except nanies are orig- 
inal duplicates : _ _ 163 

color of title a question of law 161 

COMPLAINT SHOULD CONTAIN, WHAT THE. 

must show right of possession at the comniejnce- 

ment of the action 145 

need not allege the estate held by plaintiff 145 

must show actual or constructive possession 145 

that the relation of landlord and tenant existed 145 

' complaint should describe the premises properly 145 

should not follow erroneous description in the lease.. 145 

CO-PARTNER. 

one cannot dispossess his co-partner. , 195 

COVENANTS. 

covenants defined 20 

astipulation under seal.. 20 

a covenant belongs to the party making it 20 

the stipulation taken as the language of the one 

who is bound to perform it 20 

party can not recover on a contract until it is per- 
formed 20 

the jury alone are the judges whether performed 

or not 20 

the word "demise" imports that lessor has a right 
to make the lease; it also implies a covenant for 

quiet enjoyment 20 

demise imports a legal estate in the lessor 21 

a tenant ejected from the demised premises by ad- 
verse title is discharged from rent 21 

a covenant for quiet enjoyment assures a legal entry 

and enjoyment after entry 21 



312 ' INDKX. 

PAGE 

Covenants.— Continued. 

covenant of landlord of legal entry is not broken 

by the entry of a party who does not claim an -^ 

adverse title -- 21 

covenants may be for landlord only '.-- 34 

thirty dollars per day stipulated damages sustained'.. 31 
tenant must yield possession, notwithstanding pend- 
ing negotiations for a new lease 22 

privilege to store cases in basement is not a leas- 
ing of the same __ 32 

the covenant arising from a "demise'' explained 22 

COVENANTS, IMPLIED. 

the implied covenant for quiet enjoyment does not 

oblige lessor to put lessee in possession 33 

if tenant kept out by act of the landlord he has a 

right of action for damages 33 

rule as to damages _ 23 

what the law implies as to quiet enjoyment 23 

the implied covenant of tenant as to waste ^and 

nuisance 23 

the same as to cultivation of ground 23- 

waiver of demand and notice by the tenant in the 

lease sustained 23 

former tenant holding over does not release the 

new tenant from rent _ 33 

the lessee having the right of possession must assert 

his rights..- _ 24 

CO-SURETIES. 

the obligation of each is to pay the whole debt 271 

if one pays the whole debt the co-surety is liable 

for his share _ 371 

principal is liable to sureties for the whole amount... 371 

^ a parol release of one surety will not release the 

co-surety ...-. _ 271 

a written release of one surety will discharge his 

co-surety., 371 

in a suit against sureties judgment may be taken 

against one ... 271 



INDEX. 313 

FAOK 

Co-sureties. — Continued . 

judgment need not be rendered against both de- 
fendants 271 

D 

DAMAGES. 

damages can not be allowed in the action v. 317 

gaining possession the only object of the suit 317 

only judgment is for possession 317 

verdict assessing damages at one cent sustained 318 

damages caused by negligence of landlord 818 

such damages not the subject of recoupment 318 

liquidated damages specified in lease for holding over 

is valid and not a penalty... 319 

a set off of the damages through a defective water 

pipe properly admitted in an action for rent 319 

failure to make repairs as agreed a matter of defense 

against rent 219 

tenant's damage for failure to repair in time agreed 

proper set oflE 330 

if a landlord fails to deliver lease tenant may sue 
for specified performance or for damages for 

breach of contract ...» 330 

the measure of damages the value of the lessee's bar- 
gain and any other special damage 330 

leasing premisdS' with the knowledge that they are 
infected with disease creates liability, in such 

case tenant can abandon lease 331 

tenant of life estate must pay taxes 331 

DAMAGES BY WATER. 

landlord does not warrant that the premises should 

be fit for occupant.^ 309 

is not liable for water damages from upper floor...! 209 

tenant having the use of pipes and crank can not 

recover damages if he neglects his duty 209 

la dlord liable for injuries caused by his own neg- 
ligence 309 

tenant who takes premises with a defective Wkter 
pipe can not recover damages in consequence of 
the defect- -- 310 



314 INDEX. 

PAQG 

Damages by Water. — Continued. 

landlord is answerable as occupant not as landlord if 
heUives in same building and causes damage by 
his negligence - 210 

damages by one's own neglgence can not be recov- 
ered of another -_ ^-- 310 

DAMAGE FOR WANT OF REPAIRS. 

landlord liable when premises rented in a dangerous 

condition , - 307 

landlord liable for renting premises with a nuisance 

on them -. 307, 208 

landlord not liable to third party unless he agreed to 

repair. — - 308 

landlord liable if he agreed to repair or lets prem- 

' ises with a nuisance on them - 308 

if a tenant creates a nuisance landlord may abate it 308 
to abate a nuisance by a bill in chancery it must be 

a clear strong case- 208 

DEATH. 

action abates on death of defendant 65 

death of defendant after suit brought no bar to re- 
covery - 161 

DEMAND OF POSSESSION— RETURN— FORM. 

how demand may be served .-_ 115 

how sers-ed on vacant premises 115 

the officer's return prima facie evidence 115 

a person not an officer must make affidavit of service 115 

demand may be made by an authorized agent 115 

DEMAND IN WRITING. 

is necessary where double rent claimed 116 

must be signed by the owner, his agent or attor- 
ney 116, 131, 123 

made after expiration of lease 116 

before that unavailing... 117 

on same day suit brought sufficient 117 

need'^not be made any specific time before the com- 
mencement of suit -... 117 

what the demand should contain ._ 121 



INUBX. 



315 



PAGE 

Demand in Writing.— Continued. 

demand by agent must disclose agency 133 

notice should be left with occupant 123 

a notice that tenant can examine __ 133 

what is sufficient service of notice to quit 133 

reading notice to tenant not sufficient 133 

a notice posted on door sufficient— when 123 

what notice by agent should be 1S3 

DESCRIPTION DEFECTIVE. 

can not be supplied by parol proof 180 

wrongful withholding the gist of the action must be 

proven ._ 180 

proof of refusal to surrender premises necessary 181 

lease is proper evidence in appeal cases 181 

proof of rent of an adjoining lot allowed 181 

declarations of .party in possession admissible against 

him 183 

such declarations part of the res gestae 183 

DESCRIPTION OF PREMISES REQUIRED. 

naust be sufficiently accurate to identify the premises 146 

must be such that premises can be located by a sur- 
veyor. ^.._ 146 

sufficient if the property can be readily identified by 

the description 146 

instances of insufficient description 147, 148 

DISMISSAL. 

appeals may be dismissed by circuit court 186 

DISTRESS FOR RENT. 

rent defined 328 

must be certain in amount and nature 338 

need not be payable in money -'. 339 

' must be for some definite time , 339 

when payable monthly or quarterly — the election 

belongs to landlord.- 339 

rent reserved payable in advance collected accordingly 339 
notion that rent can not be collected until end of the 

month a mistake : --- 329 

provisions of lease govern _ 339 



316 INDEX. 

PAGE 

Distress fok Eent— Continued. 

place of payment — premises 339 

tipie of payment — the end of the lease unless other- 
wise provided 329 

landlord may distrain rent due 239 

set off against rent — cases in which this applies 330 

rent collected if distress warrant insuflScient 330 

taking security does not waive right to distrain 280 

tenant may maintain trover _. 231 

no distress if no tenancy 381 

rent not recoverable if tenant deprived of premises 

by landlord _. _ _ 381 

growing crops may be seized if tenant abandons 

premises whether rent due or not 331 

with this exception distress lies only for rent due.._ 281 

DISTRESS WARRANT AND EXECUTION CONSIDERED, 
distress warrant after the levy of an execution is a 

secondary lien 233 

levy by distress subject to lien of prior execution. _. 238 

otherwise in growing crops..:... 238 

if property converted by landlord tenant must plead 

set-off . 233 

when tenant may recoup against illegal distress 383 

landlord may levy on chattel mortgage property 288, 284 

such levy is not trespass 384 

in trial of distress cases tenant may set-off damages 

for injury to use of premises 234 

right to distrain arises at common law 284 

a levy without taking possession is insufiBcient 234 

DISTRESS LIMITED TO AMOUNT CLAIMED IN WAR- 
RANT, 
landlord can not recover more than claimed in dis- 
tress warrant 335 

what he can show on trial 236 

tenant may reduce the amount by proof 336 

DISTRESS CASES— TRIAL IN. 

amount of rent fixed by trial binding on all parties. 338 

is error to award a special execution 238 

what the court should ascertain.. 238 



INDEX. 317 

Distress Oases— Trial in.— Continued. 

certificate to the sheriff constitutes his authority to 

sell 338 

must apply proceeds as directed in certificate 338 

I lien on growing crops is paramount and all persons 

must'take notice , _ _ 338 

lien not lost by failure to enforce promptly. 338 

wheat sown in the fall aod "harvested the next year 

liable to lien for both years' rent _ 239 

landlord's lien on growing crops entitled him to pos- 
session _ _ _ 339 

he may recover by replevin __. 339 

lien not confined to any particular crop-.. 340 

rent lien for property situated in two townships 340 

what tenant may show if property replevied 341 

appraisement of property imperative..- 341 

commencement of landlord's lien 341 

lease of purchasers without notice 343 

• statute generally controls landlord's lien 343 

lien on undivided crops 343 

' distress for rent is for rent due only 343 

other matters may be brought in by defendant 343 

■what. landlord can recover l 343 

trespEiss will lie against landlord for making an 

illegal levy _. 343, 

.claiming more rent than due wrongfully makes land- 
lord liable as trespasser 343 

•excessive levy, by mistake, not wrongful 344 

■defendant may show eviction on trial for distress for 

rent 344 

E 
^EVICTION. 

definition of eviction 345 

actual eviction defined .. 345 

forcible expulsion not necessary 346 

.taking portion of premises — eviction 346 

interfering with enjoyment of premises 346 

.nature of the interference considered 346 

constructive eviction defined 347 



318 INDEX. 

PAGE. 

Eviction— Continued. 

acts constituting co structive eviction 247 

acts that do not amount to eviction _ 348 

must be such as justify tenant in leaving 248- 

riotous and obscene behavior of landlord — eviction.. 248 

eviction of part by railroad company 248 

foreclosing a chattel mortgage on furniture not evic- 
tion _.- .■ - "... 249 

if tenant ousted by judgment — eviction... , — 349 

a judgment prosecuted to ouster — an eviction .. __ 349 

tenant can not remain in premises and refuse to pay 

rent 349- 

if neither actual nor constructive expulsion tenant 

must pay rent _ 249' 

no constructive eviction vyithout surrender of the 

premises _ 349' 

tenant can not plead eviction and remain in the 

premises _ .- 350' 

no eviction without actual abandonment of whole or 

part of premises 350' 

eviction is a question of fact for the jury 350 

temporary interference with water pipes not an evic- 
tion ^ 350 

cases illustrating doctrine of eviction 350, 351 

EVICTION, EFFECT AND CONSEQUENCES OE. 

may prevent the recovery of rent ___ 251 

when eviction exonerates tenant from rent 351 

collecting rent from an under-tenant exonerates tenant 351 
any act of landlord rendering lease unavailing exon- 
erates from rent __. 351 

if landlord wrongfully ousts tenant rent is discharged 352 
taking part of the premises by landlord exonerates 

tenant 353 

eviction no bar to rent previously accrued 353 

EVIDENCE. 

occupants — declarations of, are admissible 173 

equitable title in tenant can not be proven _ 173 

evidence to disprove title of plaintiff not admissible. 173 

demand must be proven __ 173. 



INDEX. 3 19" 

PAGE. 

Evidence— Continued. 

defective demand not waived by trial __ 174 

. EXTENT OF POSSESSION. 

action not defeated by proof that plaintiff occupied 

only house and garden _ 113 

leasing of building without passage-way to and from 

the same considered _ 113 

what the law presumes in sUch cases 113 

possession of a fai-m draws to it the possession of 

^wood-land belonging to it 113 

lessee of land bordering a stream entitled to accre- 
tions 114 

even if bank is a boundary 114 

heretofore the proof must correspond with complaint 114 

now statute authorizes recovering a part only 114 

F 

FORCIBLE ENTRY. 

the proof necessary ' _ 174, 175 

that plaintiff had actual possession .-i_ 174 

that defendant invaded that possession _ 175 

that the possession was withheld by the defendant.- 175 

if original entry unlawful no demand necessary 175 

FORCIBLE ENTRY AND DETAINER. 

statute of Illinois on the subject , , 53, 60- 

the purpose of the action , __ 53 

the six -causes of action stated _ _ 53 

demand^service — return 53 

growing crops » 54 

- complaint' and summons _ 54 

process from different courts 55 

when summons not served in time 56 

service of summons returned 56 

trial in justice courts _ _ 56 

trial in court of record 57 

no formal pleading required 57 

trial ex parte and default 57 

when plaintiff entitled to hold premises 57 

when entitled to part premises.. 57 



320 INDEX. 

PAGE 

Forcible Entry and Detainer— Continued. 

judgment, execution and costs _. 57 

when several occupants of same premises 58 

result when plaintiff non-suited 58 

when defendant recovers costs 58 

when judgment shall go for part of premises 58 

when parties entitled to appeal _ -. 58 

time allowed for appeal _ 58 

no writ of restitution issued for five days after 

judgment __ 59 

defendant's appeal bond-- _ - 59 

plaintiff's appeal bond .-. 59 

new bond ordered by the court 59 

former law of forcible entry and detainer repealed.. 59 

forcible entry by common law 59 

result prejudicial to the public peace -. 59 

statutes enacted to remedy the evil--. - 60 

what is disseisin-. 60 

landlord has no right to use violence 60 

party in possession can not be forcibly expelled 60 

must resort to the action provided by law 61 

ejectment, the action to try title 61 

forqible entry and detainer the means of obtaining 

possession 61, 62 

FIXTUEES. 

definition of fixtures. _ 223 

landlord's fixtures 233 

tenant's fixtures 224 

removing fixtures - _ 325 

fixtures that may be removed - 235 

gas fixtures by tenant may be removed 325 

they must be removed when 335 

gas fixtures when not removed 335 

gas pipes may not be removed _ 225 

flowers planted are fixtures in England 236 

trade fixtures may be removed 336 

criterion as to fixtures is the intention of party 226 

a mirror built in the wall is part of the realty 236 

bar and counter in a saloon trade fixtures ._ -_ 226 



INDEX. 321 

„ „ PAGE 

Fixtures— Continued. 

cigar stand fixtures in a hotel are trade fixtures 237 

distillery pipes trade fixtures ,. 237 

fixtures left when tenant vacates become part of the 

realty _ 227 

trover will not lie for fixtures annexed 327 

FORFEITURE OF LEASES. 

forfeiture not favored by, the courts^ 31 

clear proof required to warrant forfeiture 1 31 

tenant should have ijotice before declaration of for- 
feiture. _ 32 

all forfeitures odious to the law 32 

law must be strictly complied with ■ 33 

the landlord must indicate his intention to terminate 

lease 33 

tenant has entire day to pay rent .._ 32 

demand, notice and failure to pay indispensable 32, 33 

possession of tenant that of the landlord 33 

claiming of adverse possession forfeits the term..... 33 

effects of forfeiture as to sub-tenant 33 

FORFEITURE AT COMMON LAW. 

demand on a certain day was required 33, 39 

can be made now at any time after default 33 

- double rent for willful holding over _ 34 

amount the tenant should pay for use and occupation 34 

covenants made for the benefit of the lessor only... 34 

assignment without consent voidable 34 

assignment contrary to the terms of the lease voidable 34 

case stated to illustrate forfeiture 34 

forfeiture prevented by tenant paying within ten days 34 

four things necessary to work forfeiture 35 

forfeiture will not be presumed _ 35 

the tenancy must be ended according to law .._ 35 

what authorized landlord to expel tenant 35 

rents collected after re-entry. . _ _ _ 35 

landlord may re-let premises 35 

rents ^.fter re-letting 35 

tenant liable after re-entry by landlord.- _. 36 

conditions of a leas? for years . .^ 36 

• 21 



322 INDEX. 

PAGE 

Forfeiture at Common Law — Continued. 

estate ceases on condition broken 36 

landlord has the option to forfeit 8& 

FORFEITURE, WAIVER OF. 

receiving subsequent rent waives forfeiture 37 

what acts of the landlord waives forfeiture 37 

forfeiture of lease to three tenants - 37 

suing for subsequent rents waives forfeiture 37 

acceptance of security for rent does not extinguish 

lease _.-., -.-- 37 

taking note for rent does not waive right of distress 38 

tender of rent waives the forfeiture ._ 38 

FORCE NECESSARY. 

nailing up a door is not forcible detainer. 68 

a tenant refusing possession after termination of his 

lease constitutes a constructive forcible detainer. 68 

no actual force is necessary 69 

originally actual force necessary 6* 

any entry against the will of another is forcible in 

legal contemplation 69 

the owner may enter peaceably if he can 69 

statute takes away the common law right of entry 

by the owner _. 69 

legal rights, however strong, do not warrant a violent 

entry .._ 69 

where entry allowable the detention alone is tortious 69 
if entry is forcible right of action complete without 

detention 70 

constructive force only is necessary in detainer cases 7ft 
the> action accrues as soon as detention becomes 

illegal -. 70 

taking possession by building a fence is sufficient... 70 
right of action vests in the landlord as soon as the 

tenant's right of possession ceases 71 

every entry against the will of the occupant is 

forcible 71 

G 

GAS FIXTURES. 

when may be removed 236 



INDEX. 323 

„ PAGE 

Gas Fixtuhes— Continued. 

when may not be removed 325 

time of removal _-. 225 

GAS PIPES. 

gas pipes may not be removed-..! 325 

distillery pipes are trad e fixtures 227 

GROWING CROPS. 

in case of failure in contract of purchase the pur- 
chaser entitled to gather crops 86 

he has a right to enter for that purpose...: 86 

must pay rent before he removes crops 86 

landlord has paramount lien... 237 

no lien except on crops _ 237 

purchaser of farm takes it subject to lien 337 

lien lost if no notice to purchaser 237 

what persons affected by lien _ 237 

GROWTH OF THE ACTION UNDER THE STATUTE. 

a bird's eye view of the action 98 

two cases originally _ 99 

what a wrongful and what a violent entry 99 

three cases under a later statute 100 

now six causes of action under laws of 1861 100, 101 

a landlord getting the key by fraud may be ousted. 101 

a tenant at will can maintain the action.., 102 

the right of immediate possession is the test. 102 

where party abandons premises he can not maintain 

the action 102 

plaintiff must have right of exclusive possession.... 102 
if possession is joint neither one can gain exclusive 

possession . 102 

right of action rests alone in the party entitled to 

ithe possession.. 102, 103 

H 

HOLDING OVER AFTER TERMINATION OF LEASE. 

proof necessary to be made 178 

relation of landlord and tenant 178 

right of possession in landlord 178 



324 INDEX. 

PAGE 

Holding Over Aftek Termination of Lease. — Continued. 

termination of tenancy - 178 

the demand - - ITO 

that the premises are w'ithheld 178 

no notice to terminate tenancy required where ten- 
ancy expires by its own terms 178 

HOLDING UNDER CONTRACT OF PURCHASE. 

purchase — holding under contract of - 178 

the proof necessary to support this action 178 

that plaintiff sold the premises 178 

possession of defendant under the agreement 178 

failure to comply with the agreement. 178 

demand in writing _ _ 178 

withholding possession of premises after demand-, j. 179 

holding after judgment of ouster 179 

proof necessary to sustain this action __ , 179 

I that plaintiff is a purchaser at judicial sale 179 

the foreclosure 179 

expiration of time after redemption 179 

the demand for possession _ 17^ 

the withholding _ 179 

how deeds can be used as evidence in such cases 179, 180 

for what purpose deed can, Jje used 180 

HUSBAND— WIFE. 

when lessee's wife not a proper party to suit for 

possession 190 

when writ of execution properly served against wife. 191 

when wife should be joined with 191 

when judgment against head of the family... 191 

wife divorced no right in premises 192 

husband and wife jointly liable 50 

I 

INCREASED RENT. 

notice of to tenant _. _■ 47 

tenant must pay or quit _ _ 47 

if tenant won't pay, landlord must oust him 47 

IMPLIED LEASES. 

implied from holding over 6 

old lease renewed by accepting rent 6 



INDEX. 326 

T „ PAGE 

Implied Leases— Continued. 

implied lease presumed from silence . 6 

IMPROVEMENT. 

making on land, an act evincive pf possession 95, 110 

INJUNCTION. 

injunction not to issue pending appeal 152 

INN. 

distinction between boardicg-house and , 27 

INTENTION. 

as collected from instrument must govern in con- 
struing contract _ 8 

to assert possession, what acts sufHcient presutnption 

of _ 110, 112 

of tenant alone can not rebut presumption arising 

from holding over 8 

answers and intention shown by deeds 168 

J 

JOINT TENANT. 

can not recover exclusive possession against co-ten- 
ant .__ 107, 108 

can not recover allithe premises _ 107, 108 

JOINT OCCUPANTS— JOINT TENANTS. 

if occupation joint no one can recover exclusive 

possession lOV 

joint tenant can sue but can only recover an undivided 

interest. . .: _. 107 

a joint right inconsistent with an exclusive right... JOS 

joint tenant can not deprive his co-tenant of a com- 
mon right _ 108 

JUDGMENT— WHO AFFECTED BY. 

is only conclusive as to the right of possession 157 

one who did not purchase pendente lite can not be 

injuriously affected by the judgment 157 

trespassers should pay interest on the rental value of 

premises withheld _. 158 

defendant disclosing a good defense should have a 
, new trial when judgment taken by confession... 158 

when execution takes precedence of claim for rent- 158 



326 INDEX. 

PAGE 

Judgment — Who Affected by.— Continued. 

the form of the judgment in such cases.. 158 

a motion to quash too late after the jury impaneled 

and sworn -.- -- 159 

suit may be brought for each month's rent when due. 159 

JUDGMENT IN FORCIBLE ENTRY AND DETAINER. 

, statutory pfovisions 183 

judgment for the whole of the premises if evidence 

warrants _ 183 

judgment for part only according to the proof 183 

dismissal as to part — judgment as to part 184 

if plaintifif fails defendant shall recover costs 184 

description indefinite — judgment unauthorized _ 184 

judgini nt on a description unwarranted 185 

judgment conclusive as to possession 185 

conclusive as to the same parties at the same date.. 185 
it must be the same parties — same premises as prior 

suit _ _ i85 

the successful party should have judgment for costs 185 

-JUDGMENT ON DISMISSAL IN CIRCUIT COURTS. 

the circuit court on dismissal of appeal can award 

a writ of possession. i 186 

such judgment valid in collateral proceedings 186 

judgment in forcible detainer — effect of 186 

conclusive only as to matters determined : 186 

not conclusive as to the title.. _ 186 

conclusive as to possession 1 186 

judgment can be pleaded in ejectment ^, 186 

judgment confined strictly to matter determined 187 

conclusive as to existence of tenancy 187 

as to wrongful holding over 187 

judgment does not bar tenant from claiming rent as 

a purchaser of title 187 

JUDGMENT BY CONFESSION. 

heretofore sustained by the nisi prius courts 1^7 

now held invalid 188 

judgment of ouster by. confession is coram non judice 

and void _'.. 187 

such judgments are invalid except for debt.. _. 187 



INDEX. 327 

„ PAGE 

Judgment by Confession. — Continued. 

judgment for torts not valid _ 187 

the court has only such power as the statute gives., 187 

confession must be for a bona fide debt due 189 

no power given to confess judgment for a tort 189 

judgment— against whom entered.. 189 

against parties in possession when suit brought 189 

against lessee and sub-tenant.. 189 

parties entering pendente lit& may be ousted 190 

JUDGMENT AGAINST SUB-TENANTS. 

a sub-tenant by statute liable in this action 190 

judgment cannot go against a sub-tenant in posses- 
sion before the commencement of suit unless made 

a party 190 

judgment against several when part in possession is 

erroneous 190 

in Kansas an officer has no right to remove a party 

unless he holds under the defendant 190 

a wife not a necessary party in a suit against her 

husband 190 

judgment against husband sufficient to oust husband 

and wife 191 

whei-e wife owns the property action must be against 

her.. 191 

wife can not set up ownership of a dwelling house 
from which her husband is ousted, to defeat the 

action 191 

the head of the family ousted the whole family must 

go odt '.... 191 

wife loses all rights of possession by decree of divorce 

against her ^ 192 

JUDGMENT ENTERED FOR PART OF PREMISES. 

judgment and execution for, such part as may be 

proven _ 115 

JURISDICTION. 

justice courts had sole jurisdiction originally..- 135 

now, courts of record have jurisdiction also 135 

consent of parties will not confer jurisdiction 135 

what the plaint 'must show to give jurisdiction 136 



328 INDEX. 

PAQK 

Jurisdiction. —Continued. 

as between Tender and vendee the three elements 

must combine - 136 

writ\Of error does not lie from a superior court to 

review proceedings.- - 136 

if complaint is materially defective judgment can 

not be pronounced.. 137 

instances of mis-description _. 187 

the statute conferring jurisdiction must be strictly 

pursued _ 137 

how given to the upper court 262 

when appeal perfected before the clerk 362 

going to trial without objection to defective affidavit 263 
an appeal bond not providing for payment of rent 

useless.. .._ 363 

JURISDICTION OF JUSTICE COURTS. 

a justice has jurisdiction without regard to the amount 

of rent reserved in lease .-_ 139 

right of possession is the only question 139 

the $300 limitation of justices of the peace does not 

apply in these cases 139 

JURISDICTION IN CIRCUIT COURTS. 

circuit and superior courts have a special statutory 

power in these cases 139 

if a justice assumes jurisdiction where the title of 

Teal property is in question he becomes a trespasser 140 

on the appeal if the justice's transcript shovs com- 
plaint was filed it is sufficient _.. 140 

the appellate court has no jurisdiction where a free- 
hold is involved _ 140 

in Georgia a justice in one county can issue process 

to another.- 141 

jurisdiction in various states 141 

K 



KEY — delivery of, indicates acceptance 126 



IJstDEX. 329 

I L 

PAGE 

LANDLORD'S LIEN ON CROPS. 

landlord's lien on crops paramount to execution lien . 237 

landlord has no lien except on crops 337 

"a valid and first lien" refers to the property 387 

purchaser of farm crops takes them subject to lien. 337 
lien lost if crops remain without notice to bona fide 

purchaser __ _ _. 337 

what persons affected by lien reserved in lease 337 

LAND UNOCCUPIED— PROOF REQUIRED. 

that the lands were unoccupied 176 

defendant's entry without right _ 176 

that the plaintiff unlawfully withholds 177 

actual possession claiming the fee is presumed 177 

unoccupied lands — title of presumed in owner .. 177 

LEASE, THE. 

definition of lease _ 2 

what the word includes _ 2 

who is lessor — lessee __^ 1-. 2 

may be verbal or written . 3 

LEASES, WRITTEN. 

may be made by agent 3 

lease unsealed on verbal authority ; 3 

lease sealed requires power under seal _ 3 

duplicates are originals > .. ' 3 

lease lieed not be sealed. 4 

if sealed must have "seal" or "scroll'" 4 

date of lease not essential 4 

signature to lease indispensable — 4 

signature may be in ink, pencil or stamp __.. 4 

infant — lease by — voidable.. - 5 

acceptipg rent ratifies lease 5 

form of lease not important - 5 

dissenting letter with sealed lease of no effect 5 

LEASES— IMPLIED. 

acceptance of rent by parties implies a lease 6 

old lease renewed by accepting rent 6 

lease implied from holding over 6 

tenant holding over without lease bound 6 



330 P^DEX. 

PAGE 

Leases— Implied.— Continued. 

landlord has the option if tenant holds over 7,8 

assignee of lease holding over is bound- 7 

covenants in lease "run with the land" 7 

where property oflfered for rent, ratified by silence.. 8 

liability of tenant fixed independent of intention 8 

LEASES— PAROL. 

new parol lease surrenders the old one 8 

verbal lease not exceeding one year valid 8 

after lease made parol promises of landlord void 9 

/parol lease for one year to commence in futuro void 9 

void lease good if ratified by parties .' 9 

parol license, after end of lease, revocable 9, 10 

parol change, of sealed lease, invalid.. 9, 10,12 

good if for new consideration.. _ 9, 10 

verbal lea^e by wife binds the husband _ 10 

parol lease " by the year" is for one year 10 

no notice needed to terminate an executed lea.se 11 

all implied covenants done away by express ones... 13 

fraud ulent lease may be rescinded __ 12 

an offer to reduce rent, void unless agreed to 13 

parol contract not included in lease void 13 

what may be leased 13 

what consideration in leases _. 13 

may be something beside money rent 14 

change of payment to shorter time good considera- 

ation _ 41 

agreement for a lease defined 14 

what is a present demise _ _ 14 

what is a covenant to renew 14 

lease one year, with p ivilege, construed 14 

if one party only bound it is not a lease 15 

proposition to lease, not accepted may be withdrawn 15 

when lease commences if date not fixed 15 

a lease for unlimited time conveys the fee 16 

LESSEE MAY SHOW ON TRIAL. 

may show his landlord's title expired 167 

may show a conveyance by lessor 167 

extent of possession shown by deeds 167 



INDEX. 331 

Lessee May Show on Trial.— Continued. 

that title has been sold on execution _ . _ 167 

boundary shown by deeds _ 167 

tenant not prohibited from purdhasing premises 168 

animus and intention shown by deeds... __ 168 

that title passed into other hands may be shown by 

1 tenant _.__. 168 

source of title may be shown 168 

plea of the tenant _ 168 

fraud or mistake an exception to this rule 168 

LEASES -PEOMISCUOUS POINTS REGARDING. 

formerly a corporation could not lease without a seal 49 

may now lease without one._ 49 

guardian has no power except through the probate 

court 49 

where land taken by condemnation proceedings 50 

results to tenant 50 

where the premises for street _ 50 

rent of tenant abates 50 

when lease merges in the fee 50 

husband and wife jointly and severally bound for 

rent- _ 50 

rights of riparian proprietor 50' 

rights of owner over land acquired by accretion 50 

what appurtenances include _. _ 50 

it does not include property disconnected 51 

court will bind appraisers If appraisers refuse to act 51 
the covenants of a lease by partnership, are joint and 

several 51 

suit may be brought against one or all of the persons 51 

-LESSEE— POSSESSION UNDER. 

person occupying with or for the tenant must go out 

with him 80 

secret arrangement between tenant and sub-tenant.. 80 
a person occupying with tenant can not be considered 

a sub-tenant - 80 

LODGERS. 

who are - - 27 



332 INDEX. 

PAGE. 

Lodgers.— Continued. 

distinction between lodger and tenant. 27 

no interest in the real estate 28 

when lodger becomes a tenant... 28 

lodgings and extras — lien for 3ft 

letting lodgings is not sub-letting 37 

when lodger liable for injuries 27, 31 

lodgers— inmates — tenants .' 31 

see rooms and lodgings 25 

M 

MISTAKE, ARTIFICE AND FRAUD. 

tenant misled by lessor can plead fraud 16ft 

pleas available for tenant.. . . 170, 171 

the settled rule as to the tenant's plea 172 

officer ousting from wrong premises liable :... 98 

N 
NOTICE. 

no notice to quit necessary if possession was obtained 

illegally _ .._.. 126, 127 

no notice to quit required where tenant or sub-tenant 

holds over. -. 127 

no notice to quit required where no tenancy 127 

no notice to quit required where the tenant repudi- 
ates landlord's title ._ _. 127 

where ten days' notice given the tenant can pay dur- 
ing ten days 127 

the legislature intended to give tenant ten days' 
to pay 128 

if tenancy not terminated the action will not lie 128 

a mere occupant for eighteen years entitled to notice 

to quit 129 

if opcupant holds by consent of owner he is entitled 

to notice to quit : ' 13ft 

purchaser at sheriff's sale must make demand for 

possession before suit 12ft 

acts of parties may terminate a lease without notice 130 

notice to terminate a yearly tenancy 131 

when said notice should be given 131 



IND)SX. 



333 



Notice. —Contiuued. 

the day mentipned miist correspond with the oom- 
mencement of the tenancy 

must be the anniversary of the commencement of 
the lease _ _ _ _ 

what is evidence of service ___ 

what is proof of termination of tenancy ._ 

NOT GUILTY. 

plea of not guilty good __ _. 

NUISANCE. 

renting premises in a dangerous condition a . . _ , 

landlord liable for nuisance when 

o 

•OBJECTIONS. 

must be taken in court below 

otherwise if the court has no jurisdiction 

P 

PENALTY OF APPEAL BOND. 

must secure costs, accrued rents and rent to accrue 

where appeal perfected in justice courts...' 

appellee bound to follow appeal 

when appellee can dismiss appeal 

effect of giving new appeal bond 

the former bond thereby extinguished.. 

amendment of appeal bond in discretion of the court 
if justice fails to take sufficient appeal bond — liable 

PLEADINGS. 

summons from justice 

summons from court of record 

returnaTale when . ^ , 

publication, u , 

jury trial before justice. 

ti'ial in court of record ..- 

no written pleadings other than complaint necessary 

plea of not guilty always good defense.- .i 

what it puts in issue 

allegations in the declaration if not denied stand — 



131 

311 
134 
134 

151 

311 
311 



.160 
160 



264 
264 
364 
364 
264 
364 
264 
365 

149 
149 
149 
149 
150 
150 
151 
151 
151 
151 



334 INDEX. 

PAGE 

Pleadings.— Continued. ' 

defects taken advantage of by plea in abatement..- 151 

judgment on plea in abatement final 152 

what the tenant can plead as defense 152- 

injunction will not ivssue pendihg appeal 152 

bringing action of forcible entry and detainer does' 

not deprive plaintiff of other remedies 152 

disclaimer by plaintiff may be pleaded __ 160' 

PLEADINGS— AMENDMENTS. 

defects in proceedings should be found at first 153 

if defective amended instanter _ _ 153 

the proper course as to amendments 153 

PLEAS. 

^no plea but not guilt3' required 153 

all matters and defense under this plea ; _ 153 

requirements of the statute strictly complied with 154 
PRACTICE. 

papers amended as fully as in other cases 154 

appeal bond may be amended _ 154 

courts fix the time within which to be amended.... 154 

all amendments in discretion of the court 155 

every defective appeal bond may be amended _ 155 

objecting parties should take a rule to remedy defects 155- 

if complaint defective a motion to quash is proper.. 155 

motion should be made before trial 155 

at least at an early stage of the suit 15& 

the court disregard equity and enforces only legal 

rightsl _ .... 156 

judgment for rent or damage improper 156 

defendant's possession must be shown .._..._ 156 

one suit pending does not prevent the commencement 

of another _. 156- 

parol proof can not be heard to contradict the record 

in foreclosure 156 

plaintiff can prove that he was possessed of part 

of the premises claimed 156 

proof must conform to the complaint... - 157 

refusal to permit amendment can not be assigned for 

error '. 151 



INDEX. 335 

„ « PAGE 

Practice,— Continued. 

a variance between the judgment and verdict fatal. 157 

POSSESSION. 

what possession necessary for plaintiff 10& 

plaintifiE must prove peaceable possession 109 

must show actual possession 109 

such as the fee simple title draws to it is not suffi- 
cient ■ 109 

does not require pedis possessio to support the action 110 

actual possession of a farm will include an unenclosed 

wood lot _ 110 

possession must be in plaintiff at the time he brings 

suit... 110 

fences, buildings and cultivation indicate possession 95, 110 

keeping goods on the premises sufficient 110 

the possession in all cases must be bona fide to sup- 
port the action 1 110 

temporary absence does not destroy possession 110 

plowing one-half day on land is not sufficient pos- 
session __. _ 110 

sufficient possession shown by acts / 95 

delivering a key to a person other than the landlord 

does not give possession Ill 

where an officer of a corporation takes possession it 

is that of the company 111 

if actual possession relied on it must be fully proven HI 

it must be open, exclusive and public ._ Ill 

such possession as men generally employ Ill 

twenty years' possession claiming title is sufficient 

possession.. -.. Ill 

placing goods by landlord into vacant premises is 

taking possession 113 

POSSESSION— CONSTRUCTIVE. 

a tenant in taking the landlord's goods up-stairs is a 

surrender of possession 112 

preparing tb occupy house and leaving with the 

intention of returning is possession 112 

conflicting claims for possession considered _ 112 

what acts show abandonment of possession UiJ 



336 INDEX. 

PAGE 

Possession— Constructive.— Continued. 

preparing to cultivate shows possession _ 113 

a constructive and scrambling possession is not suffi- 
cient - 113 

POSSESSION— COLLUSIVE. 

collusive possession will not sustain the action...:.. 159 

notice — defects in, not waived by appearance _ 160 

disclaimer by plaintiff may 'be pleaded by defendant 160 
judgment should not be rendered against several' de- 
fendants when one in possession 160 

on a ten year lease tenant should pay taxes 160 

in appeal cases objections not taken in court below 
disregarded, otherwise if the court has no juris- 
diction 160 

POSSESSION MUST BE RESTORED. 

tenant's possession must be restored to landlord 

before he can assail title 166 

deeds may be intx-oduced to show the extent of pos- 
session - 166 

title inamaterial in these cases 166 

accepting leasje admits the landlord's title ... 166 

PROCEEDINGS FOR DISTRESS. 

description of premises in distress warra'nt is sur- 
plusage. 231 

landlord limited to claim made 231 

warrant is summons and declaration 236 

proof offered by the def endant.. 236 

what the court must determine 331 

in distress cases lease need not be filed 232 

no declaration is necessary 233 

if defendant pleads no rent in arrears only he can 

not recover damages __ 233 

set off or notice under the general issue necessary to 

recover damages _ ' 233 

where there is no rent due replevin will lie . ^ 232 

landlord can not distrain goods of tenant's assignee. 233 

rent must be certain and specific to authorize distress 333 

landlord can not apportion rent 333 

evidence as to crops 333 



INDEX. 337 

PROPERTY SUBJECT TO LEVY, ''^'^^ 

only personal property subject to, distress. 234 

landlord's lien is by virtue of the cqmmon law 234 

statutes regulate but do not interfere with the right 234, 285 

time within which distress will lie 235 

landlord may distrain without that right being re- i 

served in lease 235 

who may distrc|,in for rent _ _ 335 

if tenant abandon premises landlord may distrain 

for rent not due ' 335 

R 

RE-ENTRY BY LANDLORD. 

re-entry by landlord may determine lease 221 

when re-entry does not stop rents 321 

the mode of re-entry considered. 323 

accruing rent and damages considered 223 

RENT— INCREASED RENT. 

tenant presumed to accede to new terms by remain- 
ing , 200 

tenant not bound unless he accede to new terms 201 

if tenant remains and refuses to pay rent landlord 

must put him out 201 

silence of tenant implies consent to new terms 201 

no such presumption where he refuses to pay 201 

tenant having right to abandon will waive his right 

by remaining 201 

whei'e a landlord fails to repair as agreed the tenant 

may abandon premises _ 202 

lessor can not collect rent where he fails to repair 

as agreed and tenant goes out.. .- 202 

REPAIRS. 

repairs to be made by landlord, no time stated, may 

be made in a reasonable time :.. 203 

tenant should notify him to repair 204 

if landlord agrees to repair at a certain time no 

notice required -- 204 

repairs before the commencement of the term is a 

condition precedent to the payment of rent 204 

22 



338 INDEX. 

i»AaE 
Repairs— Continued. 

tenantable repairs defined - 304 

REPAIRS-LANDLORD'S DUTY AS TO. 

landlord does not insure the premises to be in healthy 

condition 205 

not bound to repair unless required to do so by the 

lease - 205 

not liable for damage when defects arise during ten- 
ancy - --- 205 

landlord liable to tenant for failnre to repair as 

agreed -- - 205 

landlord renting a store in a building must keep the 

building in safe repair _- 306 

landlord not bound for repairs made by order of 

lessee _ — 206 

landlord failing to keep roof in repair as agreed 

liable for damages. 1 . . . : - 206 

rent does not stop while receiving repairs ..^ 206 

as a general rule a tenant is liable for injuries in 

consequence of repairs not being made - 207 

tenant must take premises as he finds them unless 

otherwise agreed _ 207 

if landlord fails to make agreed repairs tenant may 

make them and charge the landlord _ _ 207 

RENT— DISCHARGE FROM. 

tenant can not defend against unless evicted 253 

decree of sale against landlord, not an eviction 253 

landlord can not apportion rent by his own wrong- 253 

accrued rent collected on note of ousted tenant 253 

eviction under paramount title discharges rent 353 

eviction of part premises by a stranger apportions 

rent.--. 253 

eviction, or no eviction, depends on facts before the 

jury - 258 

tenant can not complain until evicted whether land- 
lord has title or not 254 

eviction cases considered ' 354 

failure to repair does not amount to eviction 354 

threats by landlord may amount to eviction 255 



INDEX. 339 

PAOB 

RESTITUTION. 

definition of the term. 193 

no writ to issue until time for appeal expires 193 

under a decree the plaintiff 'will be entitled to a writ 

of possession or he can sue in forcible detainer. 194 

these two are concurrent remedies ._ 194 

power of officer in executing writ of possession 195 

can remove defendant and his property _ 195 

if he causes unnecessary damage he is liable 194 

t 

ROOMS AND LODGINGS. 

concerning tenements only !.. _.. 25 

agreement to supply furniture _ 25 

part of the rent contract 25 

agreement for lodgings for more than one year should 

be in writing 25, 27 

tenancy does not exist between landlord and guest 

or boarding-house keeper and guest 26 

.a lodger acquires no interest in real estate 26 

what are the privileges of lodgers ---r 26 

the liabilities of lodgers _ - _-_ 36 

can not quit lodgings without proper notice 26 

each apartment considered a distinct house 26 

rule where owner lives in house _ 26 

rule as to outer door _. 26 

a bailiff may break open an inner door ' 37 

lodger not liable for use and occupation unless he 

enters the lodgings 37 

letting lodgings is not under-letting 27 

distinction between a boarding-house and an inn 27 

the liabilities of a, keeper of lodging house 27 

who are lodgers -- 37 

distinction between lodger and tenant 37 

definition of the terms of lodger and tenant 28 

the rule as to control over the house 28 

lodger no interest in real estate _- 28 

if a lodger leases apartments he becomes a tenant-- 38 

tenants' exclusive control of their rooms - 28 

the rule as to control of premises by landlord 29 

lien on baggage for board, lodgings and extras 29 



340 INDKX. 

PAGE 

Rooms and Lodgings.— Continued. 

effect of the landlord retaining the key without 

objection ^& 

the care required of a boarding-house keeper 30 

liable for negligence of himself and servants... 30 

liability of a lodging-house- keeper not the same 30 

the implied condition in letting a furnished house. . 30 

an exception to the general rule-.j 30 

a general hiring of lodgings not by the year 30 

weekly, monthly and quarterly rents -._ 30 

when lodgers responsible for injuries 31 

what necessary to create the relation of landlord and 

tenant - -- 31 

who are Inmates and who tenants 31 

the word "landlord" defined..' 31 

S 
SERVICE OF THE DEMAND. 

when it must be served , _ 117 

must be made before suit commenced 117 

admitting demand in evidence does not presume 

service : 117 

demand by agent should disclose agency 118 

must be served by plaintiff or some one authorized 

by him... 118 

written demand should be delivered to defendant 

himself --.. 118 

what proof necessary of demand 118 

when demand and refusal to surrender must be 

proven , lly 

what demand a mortgagee must make 118 

mortgagees must make demand before commencing 

suit 118 

form of demand _ 275, 376 

SET-OFF AND RECOUPMENT. 

liquidated demands may be set-off 215 

a surety for rent can plead any matter of discharge 215 

a judgment for rent satisfied of record bars any future 

action of rent which' had accrued before that 

time 215 



INDEX. 341 

PAQK 

Skt-opf and Recoupment— Contiuned. 

if tenant proves in access of the amount agreed on 

he can not set it off against the rent 315 

tenant can set-off liis damages against rent 315 

he can recoup where the demands grow out of the 

same transaction _ 316 

if landlord fails to repair the tenant may recoup from 

the rent i 316 

the tenant can recoup damages sustained by leaky 

roof where suit for breach of lease _ 317 

SEWER GAS— DEFECTIVE PLUMBING. 

landlord not bound for defects in plumbing _ 310 

tenant can rescind lease on account of fraudulent 

representations.. 310 

if he remains in possession he must pay the rent 311 

if premises rented with sewer gas in them tenant 

must go out or pay rent _.. 311 

the law does not require the landlord to make premi- 
ses tenantable ^ 311 

in the absence of an agreement to that effect land- 
lord not bound to keep the buildings in repair.. 211 

if landlord fail to repair as agreed tenant may recoup 

his damages __ 311 

if landlord agrees to make repairs the tenant af{er 
notice may make them and charge the expense 
to the landlord - 211 

landlord not liable for damages from sewer gas unless 

he rented the premises in dangerous condition __ 211 

•SUB-TENANTS. 

a sub-tenant entering x^ndente lite dispossessed 77 

statute contemplates an action against sub-tenant... 77 

a sub-tenant not entering pendente lite must be made 

a party 77 

if lease forfeited an action lies against a sub-tenant 

even if landlord cooSented to sub-letting 78 

whenever suit will lie against tenant it will lie 

against sub-tenant ^- :.... 78 

if lease forfeited the right of the sub-tenant is gone. 78 



342 - INDEX. 

PAGK 

Sub-Tenants. — Continued. 

if first tenant liolds over second tenant must sue for 

possession 78 

demand for possession must be made after termina- 
tion of the tenancy 79 

remedy wliere tenant holds over after expiration of 

his term _ 79 

where the landlord excludes the tenai.t during his 

absence the tenant will be restored by this action 79 

one suit can not be maintained against several per- 
sons who hold in severalty 79 

in some cases all may be joined but the judgments 

must be several. . _ ^ ■ 79 

suit to recover rent must be in the same capacity as 

that in which the lease was signed 79 

separate suits will not lie for several sums past due 80 

SUB-TENANTS AND THEIE RIGHTS. 

provisions against sub-letting sustained by the courts 47 

provisions for the benefits of the lessor alone 47 

he can waive the breach 47 

accepting rent from sub-tenant does not release the 

tenant - 47 

tenant can not sub-let longer than his term _ 47 

notice of increased rent to sub-tenant 47 

where assighment restrained by the agreement in the 

lease 47 

co-partnership with the tenant is not a subletting... 48 

SURETIES ON APPEAL BONDS. 

surety on appeal bond may be sued without first 

suing tenant 1 268 

the undertaking of surety may be collateral 269 

a person signing a lease may be shown to be surety 

instead of joint lessee _ __ 269 

not allowed unless landlord has notice 269 

bonds must be in writing 269 

statutory provisions 269 

bond must be made by appellant 269 

sureties on old bohd discharged by taking a new one 270 

changes in bond by lessor will discharge surety 270 



INDEX. ,343 

SUEBTIES ON Appeal Bonds.— Continued. ^^'^^ 

what changes by lessor discharge surety _ 370 

a surety not entitled to notice of default of his 

principal _ 271 

any defense of the lessee will avail his surety 271 

SURETIES— THEIR DEFENSE. 

a surety failing to make his defense at law can not 

be heard in chancery '. 272 

if a creditor deprives the surety of his defense the 

surety can plead it _ 272 

whatever will discharge on a contract in law or 

equity can be pleaded by the surety as a defense 272 

the old rule that no specialty can be avoided but by 
an instrument of equal solemnity has - been 
modified _ 272 

defenses in actions upon contracts and ^lea of payment 

allowed ,. 272, 373 

modifications by parol — no defense to a sealed instru- 
ment, nor can a written modification not sealed 
be pleaded ._. _ 37^ 

grounds of defense not pressed upon the hearing are 

waived 373 

see co-sureties _ __ 371 

SURRENDER OF LEASES. 

tenant can not surrender lease before the expiration 

of the term and relieve himself from rent 24 

abandonment of premises will not discharge from rent 34 

an act of the landlord i-endering the lease unavailing 

discharges from rent 24 

one party can not surrender a lease without concur- 
rence of the other -_ , _ 24 

stipulation that a tenant may continue to occupy 

does not bind him 34 

case stated on a privilege for five years . _ - 25 

SUSPENSION OF RENT-DAMAGES. 

rent is compensation for use of land 256 

when use of land taken away he need not pay 356 

the landlord's intention must be clear in eviction 

cases -.- -- 257 



344 INDEX. 

PAGE 

Suspension of Rent — Damages. — Continued. 

eviction discharges all accruing rent 257 

damages for eviction can be recovered by tenant-.. 257 

the rule of damages in such cases 257 

damages in case of eviction by paramount title 257 

crops— value of if tenant evicted 258 

T 
TAXES. 

ten years tenant must pay taxes 160 

tenant for life must pay 160 

TENANCY, KINDS OF— TENANCY AT WILL, 

who is a tenant , at will 16 

parties moving in , without agreement 16 

party moving on lands without terms... 16 

getting possession under agreement for a lease 16 

tenancy at will not assignable 16 

at common law required no notice to terminate 16 

statutory notice required to terminate 17 

an assignment terminates the tenancy at will 17 

TENANCY AT SUFFERANCE. 

one who holds over without lease 17 

has no estate that he can transfer 17 

permission to occupy without agreement 17 

a, mortgagor after foreclosure 17 

tenants per auter vie after the death of cestui que vie 17 

tenants for years whose' terms have expired 17 

tenants at will whose term has ended 17 

under-tenants holding over 17 

at common law not liable for, rent 18 

tenancy at sufferance terminated at the pleasure of 

landlord 18 

TENANCY BY THE MONTH. 

party entering under void lease and paying by the 

month is a tenant from month to month 18 

he is entitled to a monthly notice to quit _ 18 

a letting without time payable monthly is a tenancy 

from month to month __ 18 

time of paying indicates the term 18 



INDEX. ;!45 

PAGE 

TENANCY BY THE YEAR. 

reserving annual rent makes a yearly lease 19 

annual rent with po time of payment is due at the 

end of the year _ 19 

a general letting without time is from year to year_ 19 

formerly six months notice required to end a yearly 

tenancy _.. 19 

sixty days notice under the statute sufficient-.. 19, 30 

a tenant holding over after the termination of a writ- 
ten lease will be compelled to pay the same rent 

as required by the lease _ _- 19 

tenant can not abandon lease and avoid paying rent 19 

remaining two years and raising crops a yearly 

tenancy 20 

TENANCY FOR LIFE. 

tenancy for life created by instrument under seal 

only 1 --. 20 

no particular form of words required to create 20 

TENANT'S REMEDY. 

tenant may abandon premises for landlord's fraud.. 197 

may sue landlord for breach of his covenant 197 

may make repairs and deduct from rent 397 

may abandon premises on account of landlord's fail- 
ure to repair.. ^ 197 

rent in advance can not be collected without agree- 
ment to that elfect. - 197 

sub-tenant not liable for rent of original lessee 198 

tenant has no relief against covenant to pay rent 

unless by the terms of the lease 198 

defense available to the tenant 198 

defendant appearing without objection to the sum- 
mons waives its defects 198 

tenant's defenses enumerated 199, 200 

defendant may set up that plaintiff disclaimed 

possession 199 

TERMINATION OF SUB-LEASE. 

sub-tenant luay hold premises after lease terminates. 48 

in case the landlord alienates the reversion 48 

who can sue in case of alienation 49 



346 INDEX. 

PAGE 

Termination of Sdb-Lbase. — Continued. 

landlord can not sue after he parts with the right of 

possession _ 49 

lessee alone must bring the action _ 49 

where tenant must sue former tenant for poss(ssion_ 49 

TERMINATION OF TENANCY. 

how long tenant can remain in possession . 119 

actual lease is forfeited or time expires. ._ 119 

attorning to a stranger forfeits lease 119 

denying landlord's title forfeits lease 119 

no notice necessary where lease has expired 119 

if landlord terminates lease for breach of same he 

must give notice ._ _ 130 

a notice is necessary where tenancy is indefinite 120 

-time of notice governed by the nature of the tenancy 120 

ten days notice to quit where lease violated 120 

a yearly lease terminated by sixty-day notice in 

writing _ __ _._ 120 

tenancy less than a year, as by the month, by a 

thirty-day notice ___ 121 

a void yearly lease is a monthly renting. ___ 181 

TITLE— TENANT CAN NOT DISPUTE LANDLORD'S. 

tenant cannot dispute his landlord's title _ 16S 

tenant estopped from denying his landlord's title 164 

title of premises not in issue 164 

tenant not permitted to betray his landlojd's pos- 
session _ 165 

jury can not consider title _ 165 

deeds may be introduced, but not to show title 165 

tenant by entering premises acknowledges the land- 
lord as owner _ 165 

an under-tenant bound by the same rule 165 

neither tenant nor his assignee can dispute land- 
lord's title - __. 166 

TRADE FIXTURES. 

what are trade fixtures 225, 226 

bar and counter in a saloon ^ 226 , 

cigar stand in a hotel _.. 227 

distillery pipes are __ 227 



INDEX. 347 

Teade Fixtures.— Continued. 

intention of tenant the criterion _ 226 

TWO REMEDIES AT THE SAME TIME. 

law and cliancery proceedings pursued at tlie same 

time ■. .. , 162 

satisfaction of either judgment bars the otlier 162 

action in forcible entry and detainer does not bar 

chancery proceedings 163 

u 

USE AND OCCUPATION. 

the action not sustained unless the relation between 

landlord and tenant exists 212,213 

a contract may be express or implied- ._ 212 

occupying after notice to pay rent tenant liable for 

use and occupation... 312 

it may lie against the occupant after contract of pur- 
chase is rescinded...' 212 

occupancy under a contract for rent for a y,ear com- 
mencing in futuro 213 

if contract is void yet the action will lie 213 

the rental value will be fixed at the time the liabil- 
ity arises _ 213 

holding over under a parol lease makes the tenant 

liable for use and occupation 213 

V 

VARIANCE. 

between judgment and verdict fatal 184, 157 

between complaint 'and judgment fatal 184, 185 

between description in lease and correct description, the ' 

complaint should disregard the description in the 
lease _ ' 145 

VENUE. 

anywhere in the county wherein the premises are 

located 137 

may issue to a different county where defendant re- 
sides 137 

generally the venue is where the land is located 137 

the complaint is jurisdictional - - 138 



348 INDKX. 

PAGE 

Venue.— Continued. 

if the justice has no jurisdiction the higher court 

has none --- 138 

the complaint must be in writing 138 

it can not he filed on the day of trial 138 

complaint must be made before summons issued 139 

these matters can not be changed by the parties 139 

VERDICT. 

the jury must sign... 194 

in Illinois and Indiana all the jury must sign the 

verdict - - - 1 96 

unknown fraudulent sub-tenant ousted under writ., 195 

they are presun^ed to occupy under the defendant-- 196 
circuit court on appeal may remand to justice of the 

peace .- 196 

VIOLENCE. 

violence forbidden and remedy 60-61 

w 

WAIVER. 

waiver of forfeiture 37 

wliat tenant may prove on trial - 167 

who may maintain the action _. 92-98 

WARRANT, THE— ITS OFFICE. 

warrant is a summons and declaration 236 

what the declaration should contain 236 

what the defendant may plead . - 236 

proof that may be offered by the defendant _ 236 

unauthorized acts of bailiff do not render the land- 
lord liable in distress cases _ __ 236, 237 

WITHHOLDING WRONGFULLY. 

facts proven to sustain a wrongful withholding 176 

possession of defendant _ 176 

peaceable possession obtained by the plaintiff 176 

the demand made _ 176 

the withholding after demand 176 

WRONGS— TWO IN ONE NAME. 

forcible entry and forcible detainer distinguishable.- 64 
statute generally regulated the de^ee of force neces- 
sary to support the action 64 



INDEX. 34'J 

PAQK 

Wrongs— Two in one Name.— Continued. 

forcible detainer defined 64 

forcible detainer may follow peaceable or forcible 

entry 64 

statutes are in derogation of the common law and 

must be strictly pursued 64 

^cition abates upon the death of defendant 65 

two wrongs treated together -. 65^ 

the entry was an olfense at common law __ 65 

-the detainer punishable bylaw ..: 65 

in Arkansas the forcible entry and detainer is a tort 65 

the remedy to protect actual possession only 65 

WRIT OF POSSESSION. ' 

for other premises no justification of eviction 98 

must be executed against party to suit.-. 190 

or against one entering pendente lite 190 

when properly served against husband 191 

WRIT OF RESTITUTION. 

when properly served against husband alone 191, 192 

can not be issued until when , 193 

can be served as other writs 195 

against whom must be executed ^ 189, 195 

circuit court may order upon dismissal of appeal — 186 

form of 384 



INDEX TO FORMS. 351 



INDEX TO FORMS. 



PAGE 

Demand for possession _ 275 

Notice to quit by an agent 275 

Demand by an attorney 375 

Notice to quit by the owner..." 375 

Notice to terminate weekly tenancy _.- 376 

Ten days notice to quit for default :... _. 276 

Another form of notice to quit 1 277 

Notice to quit for -landlord by the agent 377 

Landlord's five days' notice 378 

Sixty day notice to terminate tenancy _ \ 379 

Another form of the same _ 379 

Sixty day notice to be served by an agent 379 

Thirty day notice to terminate a tenancy from month to 

month .- _._ 380 

A demand for possession disclosing the agent 380 

Written authority to agent or attorney _ _ 380 

Written authority to attorney to sue, etc 381 

•Complaint in forcible entry and detainer in Illinois 381 

Summons in forcible entry and detainer 382 

Appeal bond in forcible entry , and detainer 383 

Writ of restitution _ 384 

Agreement for a lease 385 

Agreement not to obstruct lights -, 385 

To renew a lease _. 385 

Agreement of surety-in lease ..- 885 

Agreement to let furnished apartments . _ _ 386 

Form of guaranty of rent, etc 387 

.Assignment and acceptance of lease 287 

Assignment of lease _ 288 

Consent to assignment ., 388 

Assignment by lessor 388 

New lease with full powers _ - . . 389 

Skeleton lease _ - 397 

Short country lease - -- - 895