170 Ill. 304 | Ill. | 1897
delivered the opinion of the court:
The questions involved in this case are chiefly questions of law, arising out of the action of the circuit court in overruling the objections, made by the appellant in the trial below to the introduction of the deeds, described in the statement preceding this opinion, and in refusing the instructions asked by the appellant.
First—The chief objections, made to the deeds, were that their introduction raised a question of title, such as cannot be adjudicated in an action of forcible entry and detainer; and that Gloeckler, the trustee and grantor in the second deed, had no authority, under the trust deed, to convey the premises to the appellee, Emma Balke.
The present action of forcible entry and detainer was begun under clause 6 of section 2 of the Eorcible Entry and Detainer act, which is as follows: “When lands or tenements have been conveyed by any grantor in possession, or sold under the judgment or decree of any court in this State, or by virtue of any sale in any mortgage or deed of trust contained, and the grantor in possession, or party to such judgment or decree or to such mortgage or deed of trust, after the expiration of the time of redemption, when redemption is allowed by law, refuses or neglects to surrender possession thereof after demand in writing by the person entitled thereto, or his agent,” the person entitled to such possession may be restored thereto. (1 Starr & Curtis’ Stat. p. 1175). If there be eliminated from said sixth clause the portion thereof not here applicable, the part applicable to the case at bar is as follows: “When lands or tenements have been conveyed by any grantor in possession * * * and the grantor in possession * * * refuses or neglects to surrender possession thereof after demand in writing by the person entitled thereto or his agent.”
It is evident, that the sixth clause contemplates a case where the grantor, having conveyed away land by deed, remains in possession, and refuses to surrender possession to his grantee in accordance with the terms of the deed. It follows, that the introduction of a deed is necessary, in connection with the fact of possession, to show that there was a grantor who conveyed, and a grantee to whom a conveyance was made. Before the addition of clause 6 to section 2 of said act, the remedy, in such a case as the case at bar, was by action of ejectment. Before the adoption of said clause, an action of forcible entry and detainer could not be brought under the state of facts contemplated by that clause; and deeds were inadmissible upon a trial of such action, except for the purpose of proving the extent of possession or the animus of the entry! In 1861, the legislature extended the benefits of the Forcible Detainer act to purchasers at judicial sales; in 1874, the benefits of the act were extended to purchasers at sales under powers in mortgages or deeds of trust; in 1881, the legislature further extended the benefits of this remedy to the grantee of land as against the grantor, who refuses to surrender possession. It is plain, that no suit can be maintained, under the portion of clause 6 now under consideration, without the introduction upon the trial of a deed to the lands sought to be recovered. Such deed must be introduced, not merely for the purpose of showing the extent of the possession, but for the purpose of showing the plaintiff’s right to the possession. In this action of forcible entry and detainer, the question of title, as between the plaintiff and the defendant or any one else, cannot be tried. As the right to possession only is involved in this action, and as its object is merely to secure possession of the premises in controversy, a judgment therein is not a bar to an action of ejectment between the same parties regarding the same premises. Here the right of possession does not depend upon the title, but upon the existence of the particular facts specified in clause 6, as grounds for the action of forcible entry and detainer. The title can no more be inquired into for any purpose in this action now than it could before the passage of clause 6. But while this is so, plaintiff cannot recover under the statute unless he offers in evidence a deed for the purpose of showing that he is a grantee entitled to possession. Such has been the ruling of this court in a number of cases. (Kepley v. Luke, 106 Ill. 395; Kratz v. Buck, 111 id. 40).
The objection, that G-loeclder, the grantor in the deed dated May 20,1895, had no authority under the trust deed to convey the premises to appellee, is based upon the contention that Muller, before his death, had been married to Magdalena Hubacher. The solution of this conténtion depends upon the meaning to be given to the word, “unmarried,” as used in the following clause in the fourth paragraph of the deed of trust, to-wit: “If he should die unmarried to said Magdalena Hubacher.” Appellant claims, that the word “unmarried” as here used, means “never having been married,” while the appellee claims, that said word means “not being married at the time of his death.” In other words, appellant claims that the trustee had no right to convey the property to the appellee, because.Edward Muller did not die never having been married to Magdalena Hubacher, while appellee claims that such trustee bad a right to make such trust deed, because the said Edward Muller at the time of his death was not married to said Magdalena Hubacher, she having died before his death. There is conflict in the authorities as to the meaning of the word “unmarried.” Undoubtedly, its original and usual meaning is “never having been married.” “But the term is a word of flexible meaning, and slight circumstances, no doubt, will be sufficient to give the word its other meaning of not having a husband or wife at the time in question.” (27 Am. & Eng. Ency. of Law, p. 697). In Clarke v. Colls, 9 H. L. 601, Lord Cranworth said, that the word “unmarried” “may, without any violence to language, mean either ‘without ever having been married,’ or ‘not having a husband living at her death;’” hud, in that case, it was held, that “unmarried” is a word of flexible meaning to be construed with reference to the plain intention of the instrument where it is used and that, as used in the settlement there, it meant, “being without a husband at the time of the death.” The same meaning was given to the word in In re Saunders’ Trust, L. R. 1 Eq. Cas. 675. (See also Pratt v. Matthew, 22 Beav. 328; Mitchell v. Colls, 29 L. J. Ch. 403; Day v. Barnard, 30 id. 220).
In the case at bar, an examination of the various provisions of the deed of trust, as set out in Muller v. Balke, 154 Ill. 110, will show that the intention of the grantor in the deed was to give to the words “if he should die unmarried to said Magdalena Hubacher,” the following meaning: If he should die not being the husband of Magdalena Hubacher at the time of his death, or if he should die not having Magdalena Hubacher as his wife at the time of his death. She having died before hé did, it may be said that when he died he was unmarried to her. The deed shows upon its face, that it was made in contemplation of an immediate marriage to Magdalena Hubacher. In paragraph 2 the words are, “after his death if Magdalena Hubacher whom he is about to marry,” etc. The evidence shows, that the contemplated marriage was consummated within a few weeks after the deed was executed. It seems improbable that the grantor would use language capable of the meaning that he should never be married to Magdalena Hubacher, when, at the very moment he used such language, he contemplated an immediate marriage with her. Inasmuch, therefore, as Edward Muller died without being the husband of Magdalena Hubacher at the time of his death, the trustee, Gloeckler, had the power under the trust deed, after his death, to convey the premises to Emma Balke. We are of the opinion, that there was no error in admitting the deeds in evidence, either upon the ground that their introduction raised a question of title, or upon the ground that the trustee in the trust deed was without authority to convey the premises to appellee.
Second—Appellant further contends that, by the use of the words “any grantor in possession,” clause 6 contemplates a case where the grantor is in actual possession, that is to say, has an actual pedis possessio; that possession by a tenant is not such actual possession as is meant by clause 6; and that, inasmuch as the appellant, Peters, was in possession under Edward Muller before the deed of trust was made on December 20, 1889, and continued in such possession up to the time of the service of the written notice upon him on July 22, 1895, and as the appellee never was in possession at all, therefore the case at bar does not come within the meaning of clause 6 as above quoted. It has always been held by this court, that possession through a tenant is actual possession by the landlord. (Lancey v. Brock, 110 Ill. 609; Mallett v. Kaehler, 141 id. 70). It has also been held by this court, that the party entitled to the possession may bring suit, not only against the grantor who refuses to deliver up the possession, but also against any one who obtains possession through or under the grantor and refuses to yield it. “The remedy of forcible detainer given by the statute in favor of a purchaser at a judicial sale, after the time of redemption has expired, is not restricted to the nominal party against whom the judgment is obtained, but may be employed against any one who, either before or after the time of redemption has expired, obtains possession from the defendant in the judgment or decree.” (Kratz v. Buck, supra; Jackson v. Warren, 32 Ill. 331). In Rice v. Brown, 77 Ill. 549, where a sale was held to have been made by a trustee under and by virtue of the power in a trust deed,' and where a party was in possession of the land under the maker of the trust deed, it was held that such party so in possession under the maker of the trust deed was to be considered as a party to the trust deed within the meaning of said clause 6, and that an action of forcible detainer would lie against such party by the purchaser at the trustee’s sale, and that a demand upon such party is sufficient. We can see no difference in principle between the case of Rice v. Brown, supra, and the present case. Edward Muller was the grantor in the deed, dated December 20, 1889, and the trustee, G-loeckler, was the grantor in the deed dated May 20, 1895. The present appellant was in possession under the grantor, Edward Muller; and under the doctrine announced in Rice v. Brown, supra, there was here a grantor in possession within the meaning of said clause 6.
But the appellant further contends, that he was in possession of the premises under Edward Muller before the deed, dated December 20, 1889, was executed, and that, because of this fact, it was necessary that appellant’s tenancy should be terminated. Appellant contends, that there is no evidence in the record showing that his tenancy was ever terminated; and he asked for an instruction to the jury to that effect.
By the terms of the deed, executed by Edward Muller on December 20, 1889, he reserved to himself a life interest only in the premises. When, therefore, he died on May 12,1895, his interest therein ended. The law is, that a tenant for life cannot make a lease for a longer period than his own term, unless the remainder-man joins; and that, when a person is in possession under a tenant for life, and the latter dies, such sub-tenant is a tenant, by sufferance, or a tenant at will. (12 Am. & Eng. Ency. of Law, p. 669; Wright v. Graves, 80 Ala. 416; Horsey v. Horsey, 4 Harr. 517). While the evidence in this case shows that the appellant was a tenant under Edward Muller, it does not show upon what terms he was such tenant. The nature of the tenancy is not disclosed by the proof. As Edward Muller, the tenant for life, had no power to make a lease to continue longer than his own estate, it will be presumed, in the absence of any evidence to the contrary, that the lease, which he made to the appellant, was only such a lease as he was authorized to make. Consequently, at his death, appellant was merely a tenant by sufferance. He remained in possession for some ten weeks after the death of Edward Muller, and then written demand for immediate possession was made upon him by appellee. Under the circumstances this written demand was sufficient. Where there is a tenancy at will, or by sufferance, such a tenancy is terminated by a demand for possession without any notice to quit. (Dunne v. Trustees of Schools, 39 Ill. 578). It follows, that it was unnecessary for the appellee to do anything more in the way of terminating the tenancy of appellant than was done.
We find no error in the rulings of the court below; and, accordingly, the judgment of the Appellate Court, affirming the judgment of the circuit court, is affirmed.
Judgment affirmed.
