34 Ill. 175 | Ill. | 1864
delivered the opinion of the Court:
Some minor questions are suggested by the plaintiff in error, as arising on this record, but the principal one, and the one most elaborately argued, is the question of the liability of the appellant to discharge the taxes assessed against the demised premises. To determine this, it must first be shown what position the appellant occupied with reference to the premises. The action is brought against him as assignee of a lease executed by the appellees in right of Mrs. Walston, on the seventh of February, 1851, to Richard H. Snell, of certain lots in the city of Pekin, for a term to continue during the life of Mrs. Walston, at an annual rent of three hundred dollars, payable monthly. Snell entered into possession during the term, and on the 24th of March, 1856, by deed, sold and quit-claimed to 'appellant, his heirs and assigns forever, certain tracts of land in town. 26 E, range 4 West, and also all his interest in lots and blocks in Westley city, and in all lands adjoining Westley city; also, all his right, title and interest at law or in equity, to all lots and parts of lots in the city of Pekin, and all undivided interest in said- town.
Appellant leased the premises to Stone and McDougal by deed, dated November 10, 1857, for the term of two years.
Appellant proved that the premises originally belonged to one Thomas Snell, who had been dead for a long time, and mortgaged by him, in his lifetime, to Crest and Roody, who foreclosed the mortgage, making appellees defendants to the suit, and under the decree of the court the premises were sold and purchased by Richard H. Snell in 1847. That in 1845, Ludwig and Kneedler obtained a judgment in the Tazewell Circuit Court, against Richard H. Snell, and in 1851, by an execution then issued, the premises were levied on as the property of R. H. Snell, and sold by -the sheriff to appellant, to whom he executed a deed oh the 19th day of June,.1852.
On the third day of July, 1852, appellant conveyed the premises to one James M. Ruggles, who, on the 22d of October, 1855, reconveyed the same to appellant.
On the sale by R. H. Snell to appellant, on the 24th of March, 1856, appellant took possession of the premises, and on the 24th of May, 1859, conveyed them to one Tinney, who .took possession and held them at the time of the trial of the cause.
These being the prominent facts of the case, the question arises, under what title must the appellant be held to have entered into the premises; under that of R. H. Snell, the reversioner, the owner of the fee, or as his assignee under the lease % Appellant claims he was in under the reversioner, and therefore not liable for the rents reserved, and upon this question depends the other raised by the defendant’s third plea and subsequent pleadings arising thereout.
The plea states in substance that the premises were annually assessed for State, county and city taxes, which the plaintiffs (appellees) were legally bound to pay, and which they neglected to do, and to enable appellant to enjoy the premises he hadbeen compelled to pay those taxes, amounting annually to three hundred dollars, and that the whole sum paid for taxes amounts to three thousand dollars, which appellant offers to recoup against the damages claimed for the non-payment of the rent, and that they amount to more than all the rent in arrears.
A demurrer to this plea would have brought up the question as to where the liability lay to pay these taxes,- and have superseded these multiplied pleadings by replications and demurrers thereto with which the record is incumbered.
The record does not show how appellees became clothed with the title to these premises, or explain why it was, Richard Snell, owning the fee, consented to take a life lease from appellees ; but this does not affect the merits of the controversy, on the principle that Snell, having accepted the lease and gone into possession under it, cannot, nor can his assignee, dispute the lessor right to demise, at least not until he shall have surrendered the possession to them.
It will be observed that the sheriff’s deed to appellant, was long prior to Snell’s deed to him, the first being executed on the 19th of June, 1852, and the last, on the 24th of March, 1856. At the time of the sale by the sheriff and the execution of the deed by him, Richard H. Snell held the lease executed by appellees; he was at that date their lessee, and in possession. Appellant did not take possession under the sheriff’s deed although he sold to Ruggles in a few weeks thereafter, nor is there any evidence that Ruggles ever took possession, or that appellant took possession under Ruggles’ reconveyance to Mm in October, 1855.
After the deed from Snell of March, 1856, it is in evidence, appellant took possession, Snell having abandoned the premises himself, leaving his family in the house for a few days, when they were taken away. In November, 1857, appellant leased the premises to Stone and McDougal for two years. The inference then is irresistible, that appellant went in under the deed from Snell and thereby became the tenant of appellees, and having thus assumed that relation, and entering under that title and the tenancy still existing, he cannot be permitted now to dispute it. Rigg v. Cook, 4 Gilm., 351; Dunbar v. Bonesteel, 3 Scam., 34; Ferguson v. Miles, 3 Gilm., 359; Tilghman v. Little, 13 Ill., 241.
The appellant became, by Snell’s deed, the assignee of the whole term, and as the covenants run with the land, the lessor can maintain an action against him, for the stipulated rents. Taylor’s Land, and Ten., 218; Armstrong v. Wheeler, 9 Cow., 88; Williams v. Woodward, 2 Wend., 487; Acker v. Witherell, 4 Hill, 112.
But it is Urged by the appellant, that the court erred in admitting in evidence the lease from appellees to R. H. Snell, it being a record copy only.
The objection was, that no foundation had been laid to authorize the introduction of a dopy.
The preliminary proof was the affidavit of Walston, one of the plaintiffs, and of James Roberts their counsel and attorney. Walston, sworn, stated, that he had not in his possession, power or control, the lease declared on. Roberts stated that he never had, since the commencement of the suit, the original lease set out in the declaration, and has never seen it, and that it is not within his possession, control or power to produce on the trial.
tinder the rules established by this court in Rankin v. Crow, 19 Ill., 626; Booth v. Cook, 20 id., 129, and Stow v. The People, 25 id., 81, this preliminary proof would not have been sufficient, but the legislature has since interposed and by an act to amend chapter 24, title “ conveyances,” have provided, Whenever upon the trial of any cause in law or equity, any party to the cause or his agent or attorney in his behalf, shall orally in court, or by affidavit to be filed in the cause, testify and state under oath that the original of any deed, conveyance or other writing of or concerning lands, tenements and hereditaments, which may have been acknowledged or proved according to any law of this State, and which by virtue of such law shall be entitled to be recorded, is lost, or not in the power of the party wishing to use it on the trial, the record of such deed as certified by the recorder in whose office it may have been recorded, may be read in evidence in any court in this State with like effect as though the original deed &c. was produced and read. Sess. Laws 1861, p. 174.
This evidence fulfilled the conditions of this statute, the lease having been properly acknowledged and recorded in the proper office.
The deed from Snell to appellant was objected to as evidence on the ground that it was only a general quit-claim deed, and the land claimed was not named in it, and that Snell had other lands in the county designed to be and actually conveyed by it.
The objection has no foundation, since it was open to proof, what passed by the general description in the deed. The record of the deed was competent evidence, notice having been given to appellant to produce the original, which is presumed to be in his possession and under his control. "What it proved^ whether it conveyed the leasehold interest or not, was another question, and on that question we have no doubt. The estate conveyed by the lease is embraced in the words “ all our right, title and interest at law or in equity in and to all lots and parts of lots in the city of Pekin.” Snell had a legal estate in the lots leased, and they passed by the deed. Doty v. Wilder, 15 Ill. 411.
Appellant having entered under the lessor, and thereby become the tenant of the lessor of the whole term, he was, from his position, bound to pay the annual taxes assessed upon the premises while he occupied them.
Mrs. Walston was tenant for her life of the premises, and appellant her lessee by assignment, and the doctrine is that it is the duty of such tenant to pay all the taxes assessed during his tenancy, and if he neglects it and suffers the land to be sold for the taxes, and purchases it himself, or suffers a stranger to purchase, and then procures a release to himself, he can acquire no right to the estate against the owner in fee. Blackwell on Tax Titles, 472; Varney v. Stevens, 22 Maine, 361; Young v. Hughes, 5 Gil. & Johns. (Md.) 67; Mc Williams' lessee, v. Robbins, 5 Ohio, 28; Cairns and wife v. Chabert and wife, 3 Edw. Ch. 312; Burhans et al. v. Van Zandt et al., 3 Seld. 523; Trustees of the Village of Elmira v. Dunn, 22 Barb. 402.
But if the appellant did enter into possession under the sheriff’s deed, still, having appellees’ life estate by assignment from R. H. Snell, he was bound to pay appellees the stipulated rent without any deduction for the taxes, he being bound to pay them either as assignee of the term, or as owner of the fee, both estates being united in him. He cannot, in any shape, set up the taxes as a deduction against the rent, or recoup them, as he was bound to pay them.
Much controversy is made over the pleadings in the cause which we do not deem necessary to notice particularly, the merits of the case being contained in the points we have discussed and decided. We will say, however, that a record showing pleadings so confused and irregular, as they appear in this, has rarely come before this court. We have endeavored to find the grains of wheat, and having found them, have disposed of them as we think they should be according to the law, as we understand it. The judgment of the Circuit Court must be affirmed.
Judgment affirmed.