Powell v. Daily

Nov 9, 1896
Versions:163 Ill. 646
45 N.E. 414
Mr. Justice Baker

delivered the opinion of the court:

Appellant claims that by virtue of the provision in his lease he has a lien upon the property in the hands of the assignee. The lien sought to be given by the lease is upon property that was owned by the lessees at the time of the execution thereof. There is, however, no evidence that any portion of the property held by the assignee was owned by the lessees at the date of the lease. The burden of proving this fact was upon appellant, and in the absence of such proof it will be assumed, as against him, that the property in dispute is all after-acquired property. But the "terms of the lease are ineffectual to create a lien on after-acquired property. Borden v. Croak, 131 Ill. 68.

The contention of appellant that he has, nevertheless, a common law lien, is eqhally unfounded. A landlord in this State has no common law lien upon the property of his tenant for rent. (Herron v. Gill, 112 Ill. 247; First Nat. Bank v. Adams, 138 id. 483.) He has, at common law, merely a right to distrain. His lien, other than his statutory lien upon crops grown or growing upon the premises demised, does not attach until after the goods have been levied upon under the distress warrant. (Kellogg Newspaper Co. v. Peterson, 162 Ill. 158.) Of his right to dis-train, however, appellant did not avail himself in time, for the assignee had become invested with the title to and the possession of the goods several days before the distress warrant was issued. Hadden v. Knickerbocker, 70 Ill. 677; Herron v. Gill, supra.

Objection is made because the county court allowed the assignor his exemption after he had expressly waived it by the lease. In this ruling the court erred. The exemption is allowed by the statute for the benefit of the debtor, and the rule is, that a party may waive a statutory, or even a constitutional, provision made for his benefit. (Chicago, Milwaukee and St. Paul Railway Co. v. Hock, 118 Ill. 587; Harris v. City of Chicago, 162 id. 288.) The clause in the lease by which the lessee waived his exemption is valid, and the court should have given effect to it.

The case of Recht v. Kelly, 82 Ill. 147, referred to in the appellees’ brief as holding that a debtor cannot waive his right of exemption by an executory contract, is plainly distinguishable from the case at bar. In that case the debtor was the head of a family, residing with them, and the reasoning of the court was, that the exemption is as much for the benefit of the family of the debtor as for himself, and hence he could not, by an executory contract, waive the provisions made by law for their support and maintenance. In this case, on the other hand, the debtor is an unmarried man, so the same reasoning would not apply. His right of exemption is a purely personal right, which he could relinquish if he chose.

For the error indicated, the judgments of the Appellate and county courts, in so far as they allow the claim of §100 in favor of Turpin, one of the appellees, is reversed, and in all other respects the judgments are affirmed. Appellant will pay two-thirds of the costs of this court and Turpin the other third.

Affirmed in part and reversed in part.

Mr. Justice Cartwright took no part.