21 Ill. 165 | Ill. | 1859
The certificate of discharge by the court in bankruptcy was a release of Munn from his liability upon this covenant. Bates v. West, 19 Ill. R. 134. The only remaining question in this case, not settled by the decision in Moore v. Dodd, 17 Ill. R. 185, is, whether the lease which Dunbar took of Bonesteel constituted an eviction of the grantees in the deed, and w;as a breach of the covenant of warranty. This lease was executed in February, 1839, at which time Dunbar was in possession of the premises, under a lease from and as tenant of Collins, one of the grantors in that deed. By taking the lease from Bonesteel, Dunbar could not discharge himself from his obligations as the tenant of Collins, and thrust Collins out of the possession of the premises, unless he had a right to attorn to Bonesteel. The tenant had only a right to attorn to one who had acquired the title of his landlord; he had no right to attorn to one who had acquired an outstanding title hostile to that of his landlord, although it might be a better title. But admitting that the tenant had a right to attorn to Bonesteel, and renounce Collins as his landlord, after Bonesteel received his sheriff’s deed, until that time he had no such right, for Bonesteel had no title, and he was in law as much a stranger to the premises as if he had not purchased them at the sheriff’s sale. That deed was not executed until July, 1839, five months after the execution of the lease. When he took the lease of Bonesteel, he could do no act to the prejudice of Collins, his landlord, nor does it appear that he ever attempted to avoid the payment of rent to Collins. The truth is, no doubt, that he paid rent to both, for this court held in 3 Scam. R. 34, that having taken a lease of Bonesteel and agreed to pay him rent, he was bound to do so, and that he should not be permitted to say that he had no authority to lease the premises, although he might also have to pay rent to Collins for the same premises and the same term. It was his own folly if he agreed to pay rent twice. Certain it is, that by the well settled rules of law, Collins was not ousted of his possession by this lease. The law would have protected him and Bailey his grantee in that possession, until Bonesteel should turn them off by an action of ejectment. Afterwards it is true they voluntarily abandoned the possession and left the premises vacant, in which condition they remained till Mrs. Lynch took possession in 1843. If Collins was in a position to maintain his possession, and insist that the occupancy by Dunbar was in law his possession, he could not, if now living, be permitted to say that he was ousted of that possession and evicted from the premises, when by so doing, he could interpose the statute of limitations to defeat a recovery for a breach of his covenant of warranty; nor can the other parties who joined with him in the execution of the deed. We are of opinion there was no eviction till 1843, and consequently till that time, there was no breach of the covenant, and till then, the cause of action did not accrue.
The judgment is reversed and cause remanded.
Judgment reversed.
