| Ill. | Nov 15, 1888
Lead Opinion
: We are satisfied with and adopt the foregoing opinion of the Appellate Court. Counsel for the appellant have furnished us with a brief criticising both the conclusions and reasoning of the opinion with great earnestness, and we have carefully examined the various propositions discussed and authorities cited, in the light of the suggestions thus made by counsel, and after having fully considered the case, we are disposed to concur with the Appellate Court both in its conclusions and in the process of reasoning by which those conclusions are reached.
The judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting:
I do not concur in this decision. Forcible detainer is a mere civil proceeding authorized by the statute, under which the owner of lands may recover possession where the possession is unlawfully withheld. Forcible detainer is not an action of tort. At an early day this doctrine was announced in Robinson v. Crammer, 5 Gilm. 222. It is there said: “At common law the party was liable to indictment, and might be convicted of either a forcible entry or a forcible detainer, each being considered a distinct offense. Not so under our statute. The proceeding is purely a civil remedy, the sole object of which is to regain the possession that has been invaded.”
If it be true that a judgment could not be confessed under a cognovit in forcible detainer, at common law, upon the ground that the action was a tort, that fact does not, in my judgment, establish the doctrine that a judgment could not be entered under a cognovit in forcible detainer, as that action is known and recognized under our statute. A cognovit to confess a judgment on a note, bond or contract for a debt may be given, and a judgment rendered under such a cognovit has always been regarded as valid and binding. If binding and obligatory on a contract to pay money, why not on a contract to surrender possession of a lot or tract of land? A judgment rendered on a note or bond grows out of a breach of contract. So, too, a judgment for forcible detainer grows out"of a breach of contract, and'if a cognovit' to render judgment in the one case may be sustained, upon principle I see no reason why it may not in the other.
Again, in Fabri v. Bryan, 80 Ill. 182" date_filed="1875-09-15" court="Ill." case_name="Fabri v. Bryan">80 Ill. 182, this court held, that where a lease contains a license to the landlord to enter into possession of the leased premises without process of law, and expel and remove the tenant,’ and use such force as may be Uecessary in doing so, the landlord may enter and remove the tenant after the expiration of the term, and the tenant can not maintain an action of trespass against the landlord. If, as held, the tenant may make a lawful contract with the landlord, under which the latter may enter and remove the tenant, what principle of law forbids the tenant from incorporating in a lease a provision under which, upon default of surrendering possession at the end of the term, a judgment for possession may be confessed in a court of competent jurisdiction 2
Mr. Justice Wilkin : I concur in the views expressed by Mr. Chief Justice Craig.
Mr. Justice Magruder : I concur in the dissenting opinion of Mr. 'Chief Justice Craig.