14 Ill. App. 29 | Ill. App. Ct. | 1883
The only questions we find it necessary to consider in this case, arise upon the instructions given to the jury at the instance of the plaintiff. The first and third instructions are clearly objectionable in submitting to the jury mere questions of law. The first instruction tells the jury that in order to recover, it was only necessary for the plaintiff to prove that he was in the actual and peaceable possession of the premises upon which the trespass is alleged to have been committed, and that the defendants unlawfully interfered with such possession, or caused unlawful interference therewith. Here it was left to the jury to say what acts constituted an unlawful interference with the plaintiff’s possession. The third instruction in terms submitted to the jury to find, from the evidence, whether defendant Beidler unlawfully employed or directed the employment of any other person or persons to expel the plaintiff from said premises, and whether the person or persons so employed unlawfully committed the acts complained of in the declaration; and again, whether the acts done or' authorized by said Beidler were unlawful. Language more clearly and directly submitting to the jury to determine what was and what was not unlawful, could scarcely be employed.
It is true the court, in the second instruction, attempted to define the rights of persons in peaceable possession of premises, and to point out the circumstances under which it would be wrongful to interfere with or expel them, but the errors in the first and third instructions were not thereby cured. In those instructions no reference is made to the rules of law laid down in the second instruction, and the jury are not limited in determining what was and what was not lawful, to the propositions covered by that instruction. Questions of law are for the court, and it is error to submit them to the jury, or to so frame the instructions as to give an apparent license to the jury, to take the determination of such questions into their own hands.
The sixth instruction holds, and we think correctly, that where a landlord has a tenant in possession under a lease expiring at a certain time, and executes to a third party a lease of the premises, to begin at the expiration of the term of the tenant in possession, the right of possession, at the expiration of the first lease, vests in the second lessee. This is in accordance with the decision in Gazzolo v. Chambers, 73 Ill. 75, where it is held that in such case the tenant alone must bring the action, and that the landlord is not entitled to possession, and can not recover the premises. And.in this case, if it is true that at the time the defendants attempted to re-enter under the covenants in the lease to the plaintiff, there was a valid outstanding lease of said premises from the Beidlers to Chapin & Gore, for the term of three years from the expiration of the plaintiff’s lease, the right of possession was in Chapin & Gore, and they alone were entitled to assert such right as against the plaintiff.
The instruction, however, is erroneous, in assuming that if the lease to Chapin & Gore was once executed by the parties, it continued to be a valid subsisting lease at the date of the attempted re-entry, and in ignoring all the evidence in the case tending to show that, prior to that time, it had been surrendered by Chapin & Gore, and terminated by the mutual assent of the parties. The court seems to have proceeded upon a theory, more fully stated in the eighth instruction, that if the lease was once executed, its subsequent cancellation or destruction, though by the mutual assent of the parties, did not divest Chapin & Gore of the term thereby created.
It is held in England under the Statute of Frauds, that the destruction or cancellation of a lease has no operation as a surrender of the term. It is to be observed, however, that the third section of the English statute provides in terms that no leases of terms of years shall be surrendered, unless it be by deed or note in writing, signed by the party so surrendering, and in this country, in the States where this provision of the English statute has been adopted, the same rule prevails. But in our Statute of Frauds this provision has been omitted, andas was said in McKenzie v. Lexington,4 Dana, 129, where the Statute of Frauds was in this respect identical with ours, “ its omission in our statute, which is substantially copied from the English statute, is evidence of an intention on the part of our legislative to drop this formality in surrenders.” In the case here cited, it is held that a parol surrender of the lease with the possession of the premises would be valid, and upon this point said case is referred to with approval by our Supreme Court in Baker v. Pratt, 15 Ill. 568. If the lease were under seal, it may be that a different rule growing out of its nature and incidents as a specialty would apply, but it is no part of the hypothesis of the sixth instruction that the instrument was executed under seal.
It is true, the cancellation of the lease in this case was accompanied by no surrender of the premises, as in McKenzie v. Lexington, for the very excellent reason that Chapin & Gore had never been in possession, and so far as appears from the hypothesis contained in the instruction, the time for the term to commence may not have arrived when the lease was canceled. The lease was the only tangible thing in their possession which they could surrender, and we see no reason why such surrender, if made with the intention of terminating or canceling the tenancy, provided such intention was assented to and participated in by the lessors, was not valid as a surrender of the term. Apart from the provisions of the Statute of Frauds, the parol surrender of a term is valid, and as was said by Lord Chief Baron Gilbert in Magennis v. McCollogh, Gilb. Cas. 235, The cancellation of a lease was a sign of a surrender before the Statute.”
It follows from what we have said that the eighth instruction also is erroneous. In the-introductory part of the instruction, however, there is an attempt to limit the doctrine announced to cases where the lease is under seal, though, in the subsequent part of the instruction, it is held that if the Chapin & Gore lease was made, signed and delivered as set forth in “ the foregoing instruction,” its subsequent destruction by tearing up, would not revoke it or in any way impair its validity or the rights of Chapin & Gore to possession thereunder. The only preceding instruction in which the execution of the Chapin & Gore lease is referred to is the sixth, and in that no reference is made to its being under seal. The instruction, therefore, is not aided by the general statement of the rule applicable to sealed instruments.
But we are unable to find in the record any evidence that said lease was executed under seal. The lease does not appear in the record, and so we can not, by inspection of the instrument itself, ascertain the manner of its execution. There is evidence tending to show that it was signed by the firm of Chapin & Gore, and that the lessors’ names were subscribed to it by Griffin & Dwight, their agents, but it does not appear that either party affixed a seal to it. But even if Griffin & Dwight, in executing it for their principals, did make use of a seal, the instrument did not thereby become a specialty. An agent can execute a sealed instrument for and on behalf of his principal, only when his authority so to do is in writing and under seal. We find no evidence that the authority of Griffin & Dwight was under seal or even in writing, but it is affirmatively shown to have been merely oral. Their authority was doubtless sufficient to enable them to execute a parol lease, which would be binding upon their principals, but their unauthorized use of a seal could not convert such parol lease into a specialty. So far then as the instruction discussed the doctrine applicable to sealed instruments, it was based upon and warranted by no evidence in the case.
We would not be understood as laying down any rule in relation to the surrender of a term where the lease is under seal, as that question does not arise upon this record, but for the errors in the instructions above pointed out, the judgment will be reversed and the cause remanded.
Judgment reversed.
