39 Ill. 339 | Ill. | 1866
delivered the opinion of the Court:
This was an action of forcible entry" and detainer, brought by Lee against Dudley and Heaton to recover possession of a half section of land. The plaintiff obtained a verdict and judgment, and the defendants appealed.
The complaint alleges that in January, 1865, the plaintiff was in the actual possession of the premises as tenant of Robertson and Harris, and that the defendants made an entry upon his possession where entry was not given by law, and have since forcibly held possession, and that the plaintiff made a demand in writing on the 13th of April, 1865. It appeared in the evidence that the demand was made by the service of a notice in writing, signed in the name of the plaintiff by John Knappenberger, as his attorney in fact; and, in order to show the authority of the latter, the plaintiff introduced a deed from himself to Knappenberger, bearing date March 27, 1865, and authorizing Knappenberger to use plaintiff’s name for the recovery of the land. It is insisted by counsel for the appellants that this deed showed that, prior to the commencement of the suit, the plaintiff had divested himself of all interest in the land, and was not entitled to the possession, and, therefore, not entitled to bring this suit. A careful reading of the statute, however, will show that the phrase “ entitled to such possession,” used therein, does not apply to cases of this character. The first section reads as follows:
“ If any person shall make any entry into any lands, tenements or other possessions, except in cases where entry is given by law, or shall make any such entry by force, or if any person shall willfully, and without force, hold over any lands, tenements or other possessions, after the determination of the time for which such lands, tenements or possessions were let to him, or to the person under whom he claims, after demand made in writing by the person entitled to such possession, such person shall be guilty of a forcible entry and detainer, or of a forcible detainer, as the case may be, within the intent and meaning of this chapter.”
Here two classes of cases are provided for—one where the original entry was forcible or unlawful—the other where the original entry was lawful, but the detention has become illegal, and, in construction of law, forcible. In the first class, the offense is consummated the moment the forcible or unlawful entry is made. At that moment a right of action vests in the person whose possession is invaded, and this right must be exercised, during Ms life, in Ms own name. Whether it would survive to his legal representatives upon his death, a point raised in the argument, is a question which we do not deem it necessary to decide. It certainly no more passes to his assignee, to be asserted in the name of the latter, than an action of trespass for the same wrong. The object of this portion of the statute is to give a summary remedy to one who has been forcibly dispossessed, without reference to his title or to his right of possession. The tort feasor cannot be permitted to raise these questions. The only inquiry is, has the possession been taken by actual or constructive force ? If yea, then it must be restored, on the complaint of the party dispossessed, even though the wrong-doer himself may be the owner of the land.
But, under the second branch of the statute, a different class of questions may arise. That relates solely to tenants holding over, and the action must be brought by him who has the “ right of possession ” after a demand in writing. The demand in these cases is necessary, because the original entry was rightful, and the occupancy does not become tortious, or, in construction of law, forcible, until “ a demand made in writing by the person entitled to the possession.” Then, for the first time, an actionable offense has been committed and a right of action vested. But in whom ? Unquestionably in the person entitled to the possession, because he is the person injured. How, as against a tenant, that person must be either the landlord or his legal-representative, by assignment or otherwise, and it may be either of them. There is here no assignment of a right of action, because there is no such right until a demand made by the party entitled. If the landlord has alienated the reversion during the lease, then his alienee is entitled to the possession at its termination, and is the party injured by the holding over, and he should make the demand and bring the' action. It is to cases brought for forcible detainer simply, and not to those for forcible entry and detainer, that the phrase “ entitled to the possession,” as used in the statute, must be applied. In the one case, the right of possession is utterly immaterial, the only object being to restore Mm who has been forcibly dispossessed. In the other, the object is to compel a tenant to yield his possession to him who lias the reversion, and this point may be made a matter of inquiry. The same view of their statute has been taken by the Court of Appeals of Kentucky. Lewis v. Stith, 2 Litt. 294; Yoder's heirs v. Easley, 2 Dana, 245.
There is a ground, however, on which this judgment must be reversed. One of the defenses set up was, that the appellants, before entering, had a conversation with the appellee in regard to the land, in which he disclaimed any interest or claim except in eighty acres. It is not for us to express an opinion as to whether this fact was fully proved. It is sufficient that there was evidence tending to prove it, upon which the defendants had a right to have the jury pass. If proved, it clearly constituted a defense, as their entry was certainly not illegal nor forcible, so far as the plaintiff was concerned, if made with his consent, or in consequence of his disclaimer of possession in himself. The fact that he was himself a tenant of third persons does not affect the question, since it is his rights growing out of an invasion of his actual possession, which are in controversy in this suit. If he made such disclaimer, and if it was untrue in fact—if he was really in possession of the entire half section under a lease, and he improperly gave possession of a part to the appellants, the question may arise, on a suit brought by his landlords against these appellants, whether the law would not regard them as standing in his shoes, and liable to an action of forcible detainer on demand made after the expiration of liis lease. We say this because we do not wish to be considered as holding that the rights of the landlord are to be prejudiced by the infidelity of his tenant. But it is clear that the plaintiff’s disclaimer, if he made it, is fatal to his own action. Yet this view of the case was wholly taken away from the jury by the sixth instruction for the plaintiff. It was as follows:
“ 6. If the jury believe, from the evidence, that plaintiff, in the latter part of September, or first part of October, A. D. 1864, entered upon the half section in controversy under a lease for the same, and that said premises were then vacant, and broke four or five acres with the intention of cultivating and improving the same, and hauled 200 posts to the same, and set fifteen or twenty of the same, with the intention of fencing the same, and in February dug a well and built a dwelling-house upon the same, and moved a tenant in it, and continued such tenant therein; then any possession taken of the same by defendants, or entry therein by them after such breaking was done, is tortious and illegal, and a trespass upon the possession of plaintiffs, unless the jury believe from the evidence that at the time of such breaking the defendants, or some person under whom they claim, had the actual possession of said land.”
. By this instruction the jury are told, if the defendants entered upon the half section while in the possession of the plaintiffs, such entry was tortious, which it certainly was not if made in consequence of a disclaimer of all right by the plaintiff, at least as to that portion of the land to which the disclaimer applied. The instruction should have been qualified so as to submit to the jury the question of disclaimer by the plaintiff in connection with the question of entry by the defendant.
Reversed and remanded.
