110 Ill. 595 | Ill. | 1884
delivered the opinion of the Court:
This is an action of ejectment, brought by appellant, against appellee. On the trial below the plaintiff showed, by affidavit, that Adrian Iselin was the common source of each party’s title to all the lands in dispute, except the undivided one-sixth part of a certain forty-acre tract, and that Stephen McKnelly was the common source of title as to that. He then introduced in evidence a deed from Adrian Iselin and wife, to the plaintiff, dated November 9, 1878, for all the lands, except the undivided one-sixth part of the forty-acre tract, and a deed from Stephen -McKnelly and wife for that interest. This proof made out a prima facie case for the plaintiff, and entitled him to a judgment for the lands, unless a good defence was shown by the defendant. The defendant offered no evidence whatever of title in himself, or in a third person. The second special plea is, that the defendant holds possession from the plaintiff as a tenant from year to year, which tenancy has not been terminated by sixty days’ notice prior to the end of the year. The third special plea is, that the defendant holds the lands by virtue of a written lease from the plaintiff, from March 1, 1883, to March 1, 1884. The evidence fails to establish either defence.
It appears that the defendant was in possession of the lands prior to the time the plaintiff acquired his title thereto in November, 1878. On this point the defendant testifies': “I had been in possession of the land under other owners some two or three years prior to the purchase by.Roosevelt, and I was still in the possession at the time of such purchase, and after Roosevelt purchased I rented of Presley. ” There is no evidence showing under whom he went into possession, or under whom he was holding when Roosevelt acquired his title. There is nothing in the record from which even an inference may he drawn that he was holding under the grantors of Roosevelt. In such a case Roosevelt was under no obligation to give any notice to( terminate a tenancy from year to year, if any such existed. And if such a tenancy had been shown as was binding on the plaintiff when he bought, it was terminated when the defendant and John D. P. Hungate accepted a lease from Presley, agent, dated February 1, 1879, for one year. That lease created a tenancy for a definite term, and defendant’s rights thereafter were fixed by it. The tenants under this lease held over one year. But on May 9, 1881, M. H. Presley, as agent for some one whose name is not disclosed in the writing, again leased the premises to the defendant alone, for the term of two years, from March 1, 1881, andón April 28, 1882, “Presley, agent,” extended the lease one year, so that the term should extend to March 1,1884.
The plaintiff, on the trial, objected to the introduction in evidence of these three leases. They had no tendency to establish a tenancy under the plaintiff. The plaintiff is not shown to have made or authorized any of them. The last two do not even purport to bind the plaintiff. It is true Presley signs the same as agent, but the instruments on their face fail to show for whom he was acting as agent. If we take the testimony of Presley, it clearly shows that he was not taking charge of and renting the same for and on behalf of the plaintiff, but for the Equitable Trust Company. On cross-examination he says: “I never saw James A. Roosevelt, and I never had any correspondence with him. I never had any authority from him to take charge of or rent the said farm in controversy in this suit. I had no other authority to take charge of said farm than derived from said conversation with Lardner, before alluded to, and the letter from the Equitable Trust Company. It was by that authority, and no other, that I leased the said farm to the said defendant. ”
It is claimed that the plaintiff has ratified the last leasing by Presley to the defendant, by receiving the rent from the defendant. We think the evidence does not show anything said or done in this regard by plaintiff. The only evidence in this respect is that of Presley and the defendant. Presley testified: “After I had extended the lease of Hungate to March 1, 1884, I was directed by the Equitable Trust Company to turn over my agency to Clutter, of Effingham, Illinois, which I did. After meeting Clutter and Mr. Kepley I turned over the notes of Hungate to Clutter, which were given in consideration of the extended lease, and Hungate has paid the notes due, to Clutter. I am not sure but one note has been paid to Mr. Kepley, through the First National Bank of Flora. ” Mr. Kepley is the attorney for plaintiff in this action. The defendant testified that during the last summer and fall both Kepley and Clutter tried to scare him out, and get him to give up the farm or lease from them; that he paid the rent to Presley until he turned over his agency to Clutter, and that he paid the balance of the rent to Clutter, except the last note, which was sent to the bank in Flora, when he paid it, but that he did not know to whom the bank paid it. This is not sufficient to show that Clutter took the defendant’s notes as agent for the plaintiff. The evidence rather tends to show that Clutter received the notes as agent for the Equitable Trust Company, which directed Presley to turn over his agency to him. There is nothing in the proofs which overcomes plaintiff’s case as made.
It may be remarked that the special pleas were wholly improper, as every matter of defence contained in them was properly admissible in evidence under the general issue.
The judgment is reversed, and the cause remanded.
Judgment reversed.
