4 Ill. App. 439 | Ill. App. Ct. | 1879
There was evidence in the record tending to show that the tenant of defendant in error, O’Keefe, had taken actual possession of the premises under his lease, and the court should have submitted that question to the jury, by giving the defendants’ instruction asked upon that point as follows:
“ The court instructs the jury that if they believe from the evidence in this case that the plaintiff, through her agent, rented the premises in controversy to one James O’Keefe, and that the said O’Keefe had the actual and exclusive possession of the premises at the time of the alleged trespass, then the law is that the plaintiff cannot recover in this action for any injury done to the possession only.” To maintain trespass guare clausam fregit, the plaintiff must have the actual or constructive possession of the premises. If the premises are not occupied, then the one having title and right of possession can maintain the action, for in such case he is held to be in the constructive possession, but when the premises are occupied, the action must be brought by the party having such possession. If, therefore, O’Keefe had taken actual and exclusive possession and held the same at time of the entry by defendants, as supposed by the instruction, then the injury to the possession was sustained by him, and defendant in error could not maintain this action.
There is no claim made by defendant in error and no evidence to sustain it, if made, that the entry of the defendan ts caused any injury to the reversion, or that as the owner thereof she is entitled to maintain this action.
We are also of the opinion that the plaintiff should not have been allowed in this suit to prove and recover as damages the rental value of the land for the whole year of 1878. This suit was commenced May 4, and while the defendants still retained the possession under their entry in the preceding April. The defendant in error had not re-possessed herself of the premises by re-entry or by action. In such case the rule appears to be that the damages are limited to the injury caused by the ouster itself.
The case of Smith v. Wunderlich, 70 Ill. 426, is decisive of this question, as the rule “ that if the trespass amount to an ouster of the plaintiff, he can recover damages only for tlio trespass itself or first entry; for though every subsequent wrongful act is a continuation of the trespass, yet to enable the plaintiff to recover damages for these acts there must be a re-entry,” was clearly announced as the settled law in this State.
The point is made by plaintiff in error, Charles Gould, that he was not a party to the suit in which the title to the premises was determined, and he is not, therefore, affected by the decree, nor by the writ of assistance issued thereunder.
If it should appear upon a re-trial of this cause that he acquired his interest in the premises from the defendants therein pendente lite, then he would, hold such interest subject to any decree made in the cause, and as he could defend the suit in the name of the defendant, he cannot urge that he was not made a party. Oetgen v. Ross, 47 Ill. 142.
The litigating parties in such case are not bound to take any notice of the title or interest so acquired. 1 Story Eq. Sections, 405-406; Bishop of Winchester v. Paine, 11 Ves. 194; Murray v. Ballou, 1 Johns. Ch. 566.
It is ui'ged by plaintiff in error, Hiram Gould, that there is no evidence connecting him with the alleged trespass. We have carefully examined the testimony, and are of the opinion that there is sufficient proof in the record tending to show his participation in the acts of the other defendants, to justify the jury in finding that he. should he held as a principal.
For the errors indicated the judgment must be reversed and cause remanded.
Judgment reversed.