88 Ill. 66 | Ill. | 1878
delivered the opinion of the Court:
The chief question for our determination on this record is, did the circuit court err in sustaining demurrers to the two special pleas? They profess to answer the whole declaration, yet they put in issue only the possession and occupation of the premises.
The sixth section of the present statute relating to ejectment (Rev. Stat. 1874, p. 444,) is this: “ If the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named defendant in the suit, and all other persons claiming title or interest in the same may also be joined as defendants.” The seventh section is: “ If the premises are not occupied, the action shall be brought against some person exercising act of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit.”
But whether the'suit be to recover as against one in the actual occupation or possession of the premises, or as against one (the premises not being occupied) exercising act of ownership on the premises claimed, or claiming title thereto, or some interest therein, the form of averment required in the declaration is the same, and is that contained in the declaration in this record. Ibid. § 11.
It is provided, however, in section twenty-one, that “the plea of not guilty shall not put in issue the possession of the premises by the defendant, or that he claims title or interest in the premises.” And section twenty-two is as follows: “It shall not be necessary for the plaintiff to prove that the defendant was in possession of the premises, or claims title or interest therein, at the time of bringing the suit, or that the plaintiff demanded possession of the premises; unless the defendant shall deny that he was in such possession, or claims title or interest therein, or that demand of possession was made, by a special plea verified by affidavit.”
It is, therefore, obvious if defendants were claiming title or interest in the premises at the time of bringing the suit, it is not of the slightest consequence that they were not in the actual occupation or possession of the premises. lío rule in pleading is better settled than that a plea professing to answer the whole declaration, which, in fact, answers but a part, is obnoxious to demurrer. Frink v. King, 3 Scam. 144; Hinton v. Husbands, ibid. 187; Buckmaster v. Beames, 4 Gilm. 443; Moir v. Harrington, 22 Ill. 40; Goodrich v. Reynolds, 31 id. 490.
lío doubt separate pleas embodying these defenses may be filed, but they must be limited to the defense they interpose, which was not done here; and if a plea professing to answer but a part of the declaration, in fact does so, and there is no plea to the other parts of the declaration, the plaintiff may, at any time during the term, have judgment by nil dieit for the parts unanswered. Warren v. Nexsen, 3 Scam. 38; Safford v. Vail, 22 Ill. 327. This, of course, presupposes that the declaration includes, as here, two or more grounds of recovery, and that the plea effectually answers what it purports to answer.
The objection that Lowry and Craig held by separate leases, and not as tenants in common, does not concern appellant. They make no complaint of the judgment, and he can not profit by an error against them in which he has no interest.
The objection to the ruling of the court in excluding the evidence offered to prove that appellant disclaimed any interest in the property, is answered by the twenty-first section of the ejectment act, before quoted. He filed no plea putting that fact in issue, as required by that section, and he is not injured by appellee offering proof of that which there was no necessity of proving.
The proof locates the land with reference to the congressional surveys, and from this we take notice that it lies in McLean county.
The judgment is affirmed.
Judgment affirmed.
