Shedd v. Patterson
144 N.E. 5
Ill.
1924
Check Treatment
Mr. Justice Cartwright

delivered the opinion of the court:

On August 1, 1919, Edward A. Shedd brought an action of trespass on the case in the circuit court of Cook county against John C. Patterson to recover damages for malicious prosecution of a series of suits, five in equity and four at law, disputing the title of Shedd to a leasehold estate in valuable property in Chicago on various grounds and claiming that the leasehold estate had been forfeited, all of which suits terminated in favor of Shedd. A judgment in favor of Patterson in the action for malicious prosecution, affirmed by the Appellate Court for the First District, was reversed and the cause was remanded to the circuit court for a new trial. (Shedd v. Patterson, 302 Ill. 355.) Before the cause was re-docketed in the circuit court Shedd died. A motion of Charles Cossitt Shedd and Christiana M. Shedd, executors of the last will and testament of Edward A. Shedd, deceased, that the action be revived and continued, was denied, and the motion of the defendant, Patterson, that the action abate on account of the death of the plaintiff, was sustained. The action was abated by order of the court and an appeal to the Appellate Court for the First District was allowed. Pending the appeal Patterson died, and Alvina F. Patterson, the administratrix of his estate, was substituted. The appeal was perfected, and the Appellate Court decided that the action abated on the death of the plaintiff, affirmed the judgment, and allowed a certificate of importance and an appeal to this court.

An action for malicious prosecution is in tort to recover damages for the institution, maliciously and without probable cause, of a suit which has terminated in favor of the defendant therein. At common law such action, like that for all other torts, as a general rule abated by the death of the sole plaintiff or defendant before trial or verdict, and if the cause of action was one that would survive, the plaintiff or his personal representative was required to bring a new action against the defendant or his personal representative. Causes of action for trespass to person or property did not survive in favor of or against personal representatives or heirs. The general rule of the common law that actions ex delicto abated on the death of either party was modified by the Statute of 4 Edward III, chap. 7, so as to give an action in favor of a personal representative for injury to personal property. That statute became a part of the common law of this State, which changed the common law only so far as related to injuries to personal property. (Reed v. Peoria and Oquawka Railroad Co. 18 Ill. 403.) The classes of action which survive have been further enlarged by section 123 of the Administration act, as follows: “In addition to the actions which survive by the common law, the following shall also survive: Actions of •replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or non-feasance of themselves or their deputies, and all actions for fraud or deceit.” And by our statute in relation to abatement, if the action is one that survives, the same action is continued and may be prosecuted by or against a personal representative.

The action for malicious prosecution of the civil- suits was not to recover damages for an injury to the person of the plaintiff nor for the detention or conversion of personal property. The actions brought by Patterson related to a leasehold estate for a long term of years, which was a chattel real and under our law classed as real estate. (Knapp v. Jones, 143 Ill. 375.) The question to be determined is whether the action for malicious prosecution was an action to recover damages for injury to real prooerty. While the word “property,” in common use, is applied to the tangible physical thing commonly called property, in the law it is not the material object but the right and interest which one has in it, to the exclusion of others, which constitutes property. Property, in a legal sense, consists in the domination which is rightfully and lawfully obtained over a material thing, with the right to its use, enjoyment and disposition. In the full sense it denotes a right in point of user, unrestricted in point of disposition and unlimited in point of duration, over a determinate thing, and it may be applied to a right indefinite in point of user but limited in duration, as a life interest in real estate. (2 Austin on Jurisprudence, 817; Penn Mutual Life Ins. Co. v. Heiss, 141 Ill. 35.) In construing statutes, however, the court takes words in their ordinary and accepted meaning in popular use. (Stuart v. Hamilton, 66 Ill. 253; Wheeler v. Wheeler, 134 id. 522; Culver v. Waters, 248 id. 163.) The rule was applied to the survival statute in Jones v. Barmm, 217 Ill. 381, and personal property was held in the popular meaning to include only articles or things movable. The same rule applies to real property, and the statute includes only such property in the common understanding. An injury to property in that sense need not be a direct physical injury to the subject of property. An action may be maintained for an injury to property by erecting and maintaining anything amounting to a nuisance by which real estate is damaged or which injures it as a habitation or for other uses. That was the doctrine of Penn Mutual Life Ins. Co. v. Heiss, supra, where it was considered that the right of action of a lot owner for damages caused by the location and operation of a railroad in the street in front of his lot survived to his personal representative as an injury to his property. In all such cases, however, the damages, although indirect and consequential, are damages to the real estate. The statutes providing for the survival of actions vary considerably, and some may be broad enough to embrace an injury to a right or interest growing out of real estate, but our statute is limited, in terms, to actions to recover damages for an injury to real property. The statute does not expressly or by implication provide for the survival of an action for malicious prosecution, which is not an injury to real estate or to the use or enjoyment of it. Undoubtedly Edward A. Shedd suEered pecuniary losses by the prosecution of the suits against him, but they were not the direct result of injuries to his leasehold estate and do not come within the terms of the statute.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.