187 Ill. 480 | Ill. | 1900
delivered the opinion of the court:.
First—The propositions of law numbered 4 and 5, asked by the appellant upon the trial below and refused by the trial court, announce that the appellees, plaintiffs below, having failed to file the claim sued on in this case against the estate of Thomas Mackin, deceased, within two years from the granting of letters of administration on said estate, the claim was forever barred by section 70 of chapter 3 of the Revised Statutes of Illinois, unless the appellees should find other estate of Thomas Mackin, not inventoried or accounted for by the administrators of said estate.
The refusal of propositions numbered 4 and 5 raises the question, whether this suit is properly brought as to the time when it was brought, and as to the person against whom it is brought. Section 11 of chapter 59 of the Revised Statutes, entitled “Frauds and Perjuries,” provides that any person, his heirs, etc., who may have any debts or demands against any person who shall die intestate, and leave real estate to his heirs, to descend according to the laws of this State, may have and maintain the same actions which lie against executors and administrators upon his bonds, specialties, contracts and agreements against the executors or administrators and the heirs, or against the executors or administrators and the devisees, or may join the executors or administrators, the heir or heirs, and the devisees of such obligor, and shall not be delayed for the nonage of any of the parties. (2 Starr & Curtis’ Ann. Stat.—2d ed.—p. 2029). Section 12 of the same act provides that, when any lands shall descend to any heir, and the personal estate of the aneestor of such heir shall be insufficient to discharge the just demands against such ancestor, such heir shall be liable to the creditor of the ancestor to the full amount of the lands, or rents and profits out of the same, as may descend or be devised to the said heir, etc. (Ibid. p. 2030). Section 13 of said act provides that, when any suit is brought against any heir, he may plead riens per descent, at the time of the commencement of the suit, and the plaintiff may reply that he had lands from his ancestor before the commencement of the suit, and if, upon issue joined, it be found for the plaintiff, the jury shall inquire of the value of the lands, etc., and thereupon judgment shall be given and execution awarded as aforesaid, etc. (Ibid. 2031).
Section 70 of chapter 3 of the Revised Statutes, entitled “Administration,” provides that “all demands not exhibited within two years, as aforesaid, shall be forever barred, unless the creditors shall find other estate of the deceased, not inventoried or accounted for by the executor or administrator, in which case their claims shall be paid pro rata out of such subsequently discovered estate,” etc. (1 Starr & Curtis’ Ann. Stat.—2d ed.—p. 302). Section 67 of the same act provides that “any creditor, whose debt or claim against the estate is not due, may, nevertheless, present the same for allowance and settlement, and shall, thereupon, be considered as a creditor under this act, and shall receive a dividend of the said decedent’s estate, after deducting a rebate of interest for what he shall receive on such debt, to be computed from the time of the allowance thereof to the time such debt would have become, due, according to the tenor and effect of the contract.” (Ibid. p. 300).
It is conceded that the claim of appellees'for rent, which is sued upon in this case, was not presented against the estate of Thomas Mackin within two years after the issuance of letters of administration. The contention of appellant is, that it could have been presented within the time stated, and, inasmuch as it was not so presented, that it has been barred, and cannot now be enforced. It is also claimed by counsel for appellant, that this suit could not be brought against the heirs of Thomas Mackin under the above quoted sections of chapter 59, because he left personal property sufficient to discharge all demands against his estate.
The contentions of appellant would have much force, if the remedy here sought to be enforced was under the statutes above named. But the lease or party-wall agreement of August 1, 1872, contained a provision, that all the conditions and covenants therein contained “shall be binding upon the heirs, executors, administrators and assigns of the parties to these presents, respectively.” At common law the heir, as such, was not liable for the debts of the estate of his ancestor, but took the real estate free of any claims of general creditors. While this was so, yet, at common law, “the ancestor might, by a specialty, bind the heir to the payment of a debt by expressly so declaring in the deed, and the heir was then bound to the extent of assets descended,—that is, to the extent of the value of the real estate coming from the ancestor to the heir by inheritance, for the word ‘assets’ in this connection always meant real estate.” (People v. Brooks, 123 Ill. 246; Taylor on Landlord and Tenant, sec. 462; Ryan v. Jones, 15 Ill. 1; Hoffman v. Wilding, 85 id. 453). In Ryan v. Jones, supra, this court said: “Nor was an heir liable for the debts of the ancestor, in respect of lands descended, except in particular cases; such as debts due on specialties, in which the ancestor expressly bound the heir.” The debt sued for in the case at bar is a debt due upon a specialty, to-wit: a lease or party-wall agreement under seal; and by the express terms of that specialty the heirs of Thomas Mackin are bound. The appellant, as heir of Thomas Mackin, received by descent real estate worth more than $100,000.00. It would appear, therefore, to be clear that the heirs of Thomas Mackin are liable for the rent sued for under this lease. The liability, thus imposed at common law, could only be escaped by pleading and proving riens per descent. As was said in People v. Brooks, supra: “If the heir had bona fide aliened the lands, which he had by descent, before an action was commenced against him, he might discharge himself by pleading that he had nothing by descent at the time of suing out the writ or filing the bill, and the obligee had no remedy at law.” (See also Crocker v. Smith, 10 Ill. App. 376).
It is claimed, on the part of the appellant, that the common law remedy upon specialties, in which the ancestor expressly, bound the heir, has been superseded by sections from 11 to 14 inclusive of our statute in regard to frauds and perjuries, being chapter 59 -of the Revised Statutes. We are of the opinion, however, that the provisions of the statute thus referred to are merely cumulative to the common law remedy. They have the effect of furnishing additional remedies to all the creditors of the deceased, including specialty creditors.
In Ryan v. Jones, supra, section 6 of chapter 44 of the Revised Statutes of 1845, which was substantially the same as section 11 of chapter 59 of the present Revised Statutes, came under the consideration of this court, and it was there said: “It may be that a separate action will still lie against heirs in cases where they were suable at common law.”
In Hoffman v. Wilding, supra, it was said by this court: “At the common law, an heir was not liable for the debts of the ancestor, in respect of lands descended, except in particular cases, such as debts due on specialties, in which the ancestor expressly bound the heir, and on judgments recovered against the ancestor and recognizances acknowledged by him; and where the heir aliened thé lands before suit brought, the creditor was without remedy against him. * * * As the debt, upon which this action was brought, does not fall within any of the specifled cases in which, at common law, the heir would be liable, if the action can be maintained, it must be under the provisions of our statute.”
In Crocker v. Smith, supra, the Appellate Court, speaking through the late Justice Baker of this court, who was then a member of that court, said: “It is clear that appellee does not, by the averments in his declaration, bring himself within the provisions of the Statute of Frauds and Perjuries; and it is contended by appellant that the provisions of that statute worked a repeal of the common law remedy. We do not so understand the law. The remedies against heirs and devisees, furnished by the statute, are cumulative in their character, and afford not only a means for the collection of many debts and demands against deceased persons, for the collection of which no provision existed prior thereto, but also additional means for the collection of such debts as were already, at common law, a charge upon the heir. The purpose of the statute was not to change the common law remedy then existing for specialty creditors, when the ancestor had expressly bound the heir, but to give additional remedies, not only to them, but to all creditors of the deceased.”
The view, that the statute has not superseded the old common rule and remedy, but has merely given additional and cumulative remedies, is sustained by the principles of statutory construction applicable in such cases. It is a general rule in the construction of statutes, that they are not to be presumed to alter the common law further than they expressly declare. Statutes are to be construed in reference to the principles of the common law; and it is not to be presumed, that the legislature intends to make any innovation upon the common law further than the case abolutely requires. (Cadwallader v. Harris, 76 Ill. 370; Canadian Bank v. McCrea, 106 id. 281; Smith v. Laatsch, 114 id. 271). A careful examination of the statutory provisions above referred to will show, that there is nothing in them inconsistent with the continued existence of the common law remedy. They were intended merely to enlarge that remedy, and not to extinguish it. The statute does not expressly repeal the common law remedy, nor use such language as is inconsistent with its further existence. In Chicago and Northwestern Railway Co. v. City of Chicago, 148 Ill. 141, we said: “Bouvier, in his Law Dictionary, defines a cumulative remedy to be ‘a remedy created by statute in addition to one which still remains in force. > * * * Where a statute gives a new remedy and contains no negative, express or implied, of the old remedy, the new one provided by it is cumulative, and the party may elect between the two.”
Counsel for appellant refers to a number of cases in support of the position, that the heir is not liable for the debts of his ancestor, where such ancestor leaves personal estate sufficient to discharge all just demands against his estate. (People v. Brooks, supra; Guy v. Gericks, 85 Ill. 428; Hoffman v. Wilding, supra; Laughlin v. Heer, 89 Ill. 119; McLean v. McBean, 74 id. 134). But a careful study of these cases will show that, under the facts therein stated, there were no common law remedies. In all the cases so cited, the proceedings were attempted to be had directly under the statute; and they were all cases, in which no remedy existed at the common law; and to justify a recovery it was necessary that the statute should be strictly complied with. There is' nothing in these cases, so far as we can discover, which is inconsistent with the decision in Crocker v. Smith, supra. Inasmuch as the remedy here sought to be enforced is the common law remedy above referred to, it was not necessary to file the present claim against the estate of Thomas Mackin, or to make any attempt to collect it from his personal estate. In addition to this, the rent did not fall due until August 1,1896, which was after the expiration of the two years allowed by law for the filing of claims in the county or probate court. In construing section 67 of chapter 3 in regard to “Administration, ” as to the matters above quoted, we held in Dunnigan v. Stevens, 122 Ill. 396, that, if the obligation is an absolute undertaking, the claim can properly be proved against the estate in the probate court, even where the debt or claim is not due, but that, if the obligation is merely a contingent liability, then the claim is not properly provable in the probate court, and cannot be allowed. In Stone v. Clark’s Admr. 40 Ill. 411, where the claim filed was based upon an indemnifying bond made by Clark, under which nos damage resulted to Stone until more than two years after letters of administration were granted, it was held that Stone had no claim until he was damnified, and, as he was not liable on the notes and suffered no damage until after the lapse of the two years, his claim had not accrued within two years, and no suit could have been instituted within the two years. In the case at bar, the lease or party-wall agreement provides, that the premises are to be held by Thomas Mackin from August 1,1872, until August 1,1902, “if the said wall, one-half of which is upon the premises hereby demised, shall stand so long-. This lease to be immediately determined by a total destruction of said wall.” It thus appears that, until August 1, 1896, arrived, it could not be determined whether the wall might not be totally destroyed, or whether the lease might not be determined by failure to pay the rent, or what amount of rent would be due on that day; for, at any time, the representatives of the Haven estate might see fit to use some portion of the wall erected by Mackin under the terms of the lease, and, in such case, deduction would be required from the amount of the rent. The payment of rent under this lease was, therefore, dependent and conditioned upon the happening, or not happening, of certain events. If the claim had been presented to the probate court during the two years for the rent due August 1, 1896, it would have been a sufficient answer thereto to say, that the rent was only payable upon a contingency.
The only effect of the provision of the statute, embodied in section 70 of chapter 3, as above quoted, is to bar any action against the administrator or executor, unless the claim is filed within the two years, except as to assets not inventoried. (Snydacker v. Swan Land and Cattle Co. 154 Ill. 220).
Counsel for appellant objects to the form of the judgment entered by the court below, and says that the judgment was erroneous, because it was rendered against the appellant alone, whereas it is claimed that the judgment, if any, should have been against appellant and the other heir, payable out of the real estate descended. This question was not raised either in the county or Appellate Court, and it is, therefore, too late to consider it in this court. It is shown here that appellant, as heir of Thomas Mackin, received real estate by descent, exceeding in value $100,000.00, and that he still holds all the property so acquired, and, at the time of the trial, was in receipt of the rents and profits thereof. He was clearly personally liable for the payment of this claim, arising out of a breach of his ancestor’s covenant. That covenant bound him jointly with the other heirs of Thomas Mackin, and, by the statute of this State, “all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants.” (Rev. Stat. sec. 3, chap! 76, entitled “Joint Rights and Obligations;” 2 Starr & Cur. Ann. Stat.—2d ed.—p. 2321).
Second—The objection to the form of the judgment, however, disappears when it is remembered that the right to recover in this case is not merely predicated upon appellant’s liability, as heir of the lessee, to whom real estate had descended, but, also, as assignee of the lease in possession thereunder, and enjoying the rents and profits thereby conferred. By the lease Thomas Mackin, his heirs and assigns, acquired the right to use the wall upon the demised premises, as a party wall, in the erection and support of any building to be erected, during the existence of the lease, by Mackin. Mackin, his heirs and assigns, as owners of the leasehold interest in the north half of lot 10, were thus clothed with an easement in the property of Haven, which was appurtenant to their interest or estate in lot 10. The weight of authority establishes the position, that an agreement under hand and seal, containing covenants and stipulations such as are found in the present agreement, “will, when duly delivered and acted upon, as was done in this case, create cross-easements in the respective owners of the adjacent lots, with which the covenants and agreements will run, so as to bind all persons succeeding to the estates to which such easements are appurtenant.” (Roche v. Ullman, 104 Ill. 11). The easement here was in favor of Mackin, his heirs and assigns, and, after its creation, any conveyance of the property, to which the easement was appurtenant, had the effect of conveying and transferring the easement also. In other words, any conveyance of Mackin’s leasehold interest in the north half of lot 10 conveyed and transferred the easement in the south wall of Haven’s property, even though that easement was not mentioned in the conveyance or assignment. (Roche v. Ullman, supra; Tinker v. Forbes, 136 Ill. 221; Gebhardt v. Reeves, 75 id. 301; Shelby v. Chicago and Eastern Illinois Railroad Co. 143 id. 385).
By operation of law, the leasehold interest of Mackin in lot 10, with all its appurtenances, passed to his representatives. (Taylor on Landlord and Tenant, sec. 427). By agreement a partition of the assets, including this leasehold interest, was made between appellant and his sister, Alice Philbin, the two heirs of Thomas Mackin, and this leasehold interest fell to appellant. The proof shows, that thereafter the administrators of Thomas Mackin’s estate turned over, assigned and transferred to each of the heirs the property they had respectively agreed to take, and executed to them written assignments of their respective interests, and delivered possession thereof to them respectively. Appellant admits in his testimony that, in the settlement of his father’s estate, this leasehold interest was set over to him, and .that he was in possession thereof, and received it from his father’s estate in a division between himself and his sister as a part of his share of said estate, and was collecting the rents and profits therefrom; and that, on taking possession and assuming the ownership of the lease, together with the premises described in it, he kept on collecting the rents the same as before. This evidence establishes an assignment and transfer of this leasehold interest in the north half of lot 10 with its appurtenances to the appellant. The object of the agreement was to give jbhe owner of the leasehold estate in the north half of lot 10 the right to use the south wall of the Haven building on lot 9 as the north wall of the building to be erected on lot 10, as a means of support. The right thereby acquired was clearly a benefit to Mackin, and his heirs and assigns, and to their leasehold estate. As such it constituted an easement, appurtenant to that estate. Mackin, for himself and his heirs and assigns, covenanted to pay the rent reserved in the lease; and this was a burden which went with the privilege, and, when the benefit was accepted, the burden was assumed.
A transfer of the leasehold estate carried with it not only the right, but also the burden. Both covenants necessarily run with the land. A covenant will run with the land, when it tends directly or necessarily to enhance its value, or render it more beneficial or convenient to the owner or occupant. (Gibson v. Holden, 115 Ill. 199; Louisville and Nashville Railroad Co. v. Illinois Central Railroad Co. 174 id. 448). The covenant in a lease or deed to pay rent is one that runs with the land. (Webster v. Nichols, 104 Ill. 160; Sexton v. Chicago Storage Co. 129 id. 318; Roche v. Ullman, supra; Louisville and Nashville Railroad Co. v. Illinois Central Railroad Co. supra). Under our statute “real estate” embraces “chattels real,” and a lease for years of land with the building thereon is a chattel real. (1 Starr & Cur. Stat.—2d ed.—p. 957; Knapp v. Jones, 143 Ill. 375).
In view of what has been said, we are of the opinion that the trial court committed no error in refusing to hold as law the seventh proposition, asked by the appellant, to the effect, that the lease from Haven to Thomas Mackin was never assigned to or owned by the appellant.
Some objection is urged by counsel for appellant to the admission by the court below of the evidence, relating to the assignment and ownership of the leasehold interest by appellant. This objection is without force. A report of the administrators, signed by the appellant himself, was# introduced in evidence, which showed that such leasehold was, by written deed of conveyance, transferred by the administrators to the appellant. Although some objection was made at the trial to this proof, yet the objection urged was a general one, and not specific upon the ground that there existed better evidence of the fact. The evidence introduced was admissible as an admission by the appellant himself jm regard to the assignment of the leasehold interest. As the objection was general, and not specific, to the proof offered it' cannot be raised in this court. (Bradner on Evidence, secs. 9,10, p. 498; Sargeant v. Kellogg, 5 Gilm. 273; Swift v. Whitney, 20 Ill. 144; Espen v. Hinchliffe, 131 id. 468; Weber v. Mick, 131 id. 520).
There is testimony in this case, which tends to establish an attornment upon the part of appellant to the present appellees. After the leasehold interest in the north half of lot 10 had been set off and assigned to the appellant in the partition between him and his sister, he sent a check for the rent due on August 1, 1895, to the appellee, Dwight Haven. This was his own personal check, and not signed by him as administrator. This payment was made by him after he had become the owner of the property, and while it no longer remained the property of the estate, It cannot be claimed, therefore, that the payment was made in behalf of the estate,, and not in behalf of appellant individually. This is a question of fact, however, which has been settled against the appellant by the judgments of the courts below. Payment of rent under a lease is such a recognition of the landlord’s right, as to be, in law, an attornment. . (Fisher v. Deering, 60 Ill. 114; Voigt v. Resor, 80 id. 331). There having, therefore, been an attornment by the appellant, to appellees, the relation of landlord and tenant between appellees and appellant was thereby created; and appellant was personally liable for the rent, so sued for, to the appellees; and the suit was properly brought against him alone.
Third—By the first refused proposition of law, the appellant asked the court to hold, as matter of law, that, where one of two adjoining property owners builds upon his premises and, in building, extends his wall over onto the adjoining owner’s property without said owner’s license or permission, said adjoining property owner has the right to use the wall, and to connect his building with the same, so long as he does not cut into said wall beyond the line of his property. The proposition thus submitted may be correct as a mere rule of law, but it does not apply to the facts in this case, as there is no evidence in the record of the existence of any such facts as those, upon which the proposition is predicated. It was not error in the court below to refuse to hold it as law in the decision of the case. The court, trying a case without a jury, mayproperly refuse a proposition submitted, when the evidence fails to establish the state of facts it assumes, and upon which it is predicated. (Windmiller v. Chapman, 139 Ill. 163).
In line with this subject is the sixth proposition of law asked by the appellant, and which was refused by the court below. By the latter proposition the court was asked to hold, as matter of law, that the appellant is not estopped from denying that the said brick wall, mentioned in the lease, does not all stand upon said lot 9, and that appellant has the right to adduce competent testimony, if he can, tending to show that the said wall extends partially upon said lot 10. In the trial of the case the appellant also offered to show, by testimony which was excluded by the court, that the wall did extend partly upon said lot 10. The refusal of proposition 6, and the refusal to admit the offered testimony thus referred to, are assigned as errors by the appellant.
The only effect, which the excluded testimony could have had, would have been to question the title of the appellees, and, therefore, under the circumstances of this case, such testimony was clearly incompetent, and was properly excluded. No rule of law is better settled than that the tenant is estopped from denying the title of his landlord. “His possession is subservient to the title of the party under whom he entered. "x" * * He cannot set up a better title in himself or a third person. "x: * * The same principle applies to those acquiring the possession from the tenant. The relation of landlord and tenant attaches to all who succeed to the possession through or from the tenant. They acquire no greater right than the party from whom they received possession.” (Sexton v. Carley, 147 Ill. 269). In the case at bar, as Thomas Mackin could not deny the title of the appellees to the demised premises, so the appellant, here holding under Thomas Mackin, cannot deny the same. Where the tenant enters under his landlord, he thereby acknowledges that the landlord is the owner, and the tenant is estopped from denying it. (Doty v. Burdick, 83 Ill. 473; Hardin v. Forsythe, 99 id. 312). Upon the trial of the case, the appellant tendered appellees the lease from S. R. Haven to Thomas Mackin, and offered to surrender the same, and claimed that he thereby put appellees in the same position which the original lessor occupied before the lease was made; and that, having done so, he then had a right to contest appellees’ right to recover by showing that the wall in question was located partly upon lot-10. We concur with' the following views expressed upon this subject by the Appellate Court in their decision of this case: “It was immaterial whether Haven’s claimed ownership of the demised premises at the time the lease was entered into, was rightful or not, or to whom the land belonged. Rightfully or wrongfully, Haven built the wall .upon the land in question, and was in possession thereof. Thomas Mackin knew of and acquiesced in Haven’s claim, whatever it was, and the fact of the existence of the wall and its possession by Haven, and entered into the lease and took possession under it, and such possession has continued by himself or his heirs through him, ever since. * * * (Fleming v. Mills, 182 Ill. 464). * * * The offer made by appellant at the trial to surrender, the paper lease was wholly unavailing to pave the way for the introduction of the offered, but rejected testimony. Such an act in no manner meets the requirements of law that, before a lessee can assail or question his lessor’s title, under which he has entered, he must restore possession ■—-must place his lessor in the same position he occupied before he parted with possession. * * * Manifestly appellant’s possession of the land and wall would not be surrendered by his bare surrender of the paper writing. There was no error in refusing to admit the offered testimony.”
Appellant insists, however, that there is an exception to the general rule, that a tenant cannot deny the title of his landlord, and that the exception exists where the tenant has been induced by fraud, artifice or mistake to accept the lease. Certain authorities are referred to in support of this position. No proof of fraud or artifice was offered. The general rule upon this subject is that “when the fraud appears upon the face of a lease or deed, it may be invalidated in a court of law, but where the fraud consists in matter dehors the lease, it is voidable only in equity.” (1 Wood on Landlord and Tenant,— 2d ed.—sec. 118). The fact, that the wall may have been, partly upon lot 10, in which Thomas Mackin had a leasehold interest, would not show conclusively, that there had been a mutual mistake on the part of Samuel R. Haven and Thomas Mackin. As was said by the Supreme Court of Pennsylvania in Thayer v. Society of United Brethren, 20 Pa. St. 60: “The mere fact, that the tenant has a better title than his landlord, does not of itself raise the presumption that the lease was a fraud or accepted by mistake. The lease is not rendered void by proving title in the lessee. To make the law otherwise, would be to say that the tenant shall not set up title in himself when he has none, and that the lease shall be no evidence of the landlord’s rights except when he can prove them without it.”
We are of the opinion, that the court below committed no error in rejecting the offered testimony, nor in refusing to hold as law the propositions based upon the facts which, as it is claimed, would have been established by such testimony if introduced.
Fourth—It is assigned as error, that the court refused to hold as law one or two other propositions which were marked, “refused,” by it. No error was committed in this regard. Upon a careful examination of these propositions they cannot be regarded otherwise than as requests to pass upon questions of fact. “The purpose of the statute is to enable K party to submit propositions with a view to obtaining the opinion of the court upon material and controlling principles of law only, and when the proposition calls for the opinion of-the court upon a question of fact, it may properly be refused.” (Knowles v. Knowles, 128 Ill. 110; County of LaSalle v. Milligan, 143 id. 321).
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
