231 Ill. 140 | Ill. | 1907
delivered the opinion of the court:
The master found that the evidence failed to show that the heirs of Horatio G. Spafford, deceased, had the right to redeem the real estate in question from the trustee’s sale to Hetty R. Green, and the correctness of the decree of the circuit court approving the master’s finding in that particular is the controlling question in this case.
It appears from the evidence that when Samuel P. Hedges took possession of said premises, in 1881, he agreed with Horatio G. Spafford to pay as rent for said premises the sum of $55 per month, and that he paid rent on said premises under that agreement for four months, when the Gallup trust deed was foreclosed by the trustee making a sale of said premises, under the powers of sale contained in said trust deed, to the holder of the indebtedness secured thereby, Hetty R. Green, and that Hetty R. Green shortly thereafter re-sold the premises to Samuel P. Hedges, and that after the purchase from Hetty R. Green Samuel P. Hedges ceased to pay rent on said premises and thereafter claimed to hold the premises as owner, and it is urged Samuel P. Hedges having gone into possession as tenant of Horatio G. Spafford, he could not hold the same, as against Horatio G. Spafford or his heirs, under said trustee’s sale and his purchase from Hetty R. Green, as it is said he having acquired the possession of the premises from Horatio G. Spafford as his tenant, he could not acquire the right to hold the same, as against Spafford or his heirs, under said trustee’s sale and the purchase from Hetty R. Green, without first having surrendered the possession of the premises to Spafford or his heirs.
The law is well settled in this State that a tenant cannot deny his landlord’s title or show that his lessor had no title to the premises leased at the time the tenancy began. A tenant may, however, show his landlord had a limited estate, only, in the leased premises, which has terminated by its own limitation, or that his landlord has sold or conveyed the subject matter of the tenancy, or that his-landlord’s title has been divested by operation of law, and that he is holding possession of the premises under a title that is derived through his landlord. ( Wells v. Mason, 4 Scam. 84; Tilghman & West v. Little, 13 Ill. 239; Franklin v. Palmer, 50 id. 202; Board of Supervisors of Kane County v. Herrington, id. 232; St.John v. Quitzow, 72 id. 334; Green v. Dietrich, 114 id. 636; Corrigan v. City of Chicago, 144 id. 537.) In this case the landlord executed a trust deed upon the premises prior to the time he leased the same to Samuel P. Hedges. Default was made by him in the payment of the notes secured by that trust deed, and the premises were sold by the trustee to the holder of the debt secured by the trust deed, in satisfaction of the debt, and thereupon the purchaser sold the premises to Samuel P. Hedges. We think it clear, under the foregoing authorities, that Samuel P. Hedges had the right to purchase said premises of Hetty R. Green, as against Horatio G. Spafford or his heirs, without first surrendering the possession of the premises to Horatio G. Spafford or his heirs,—that is, that Samuel P. Hedges did not acquire title to said premises adversely to Horatio G. Spafford but under a title derived from Horatio G. Spafford, which title Samuel P. Hedges might legally set up in defense of his possession, as against the plaintiff in error and her sister, without first surrendering the possession of said premises to them or their ancestor.
The letter claimed to have been written by Samuel P. Hedges to Horatio G. Spafford was not introduced in evidence, and the parties who testified to its contents did not agree in their testimony as to what it contained. It, at most, was a statement made in 1882 by Samuel P. Hedges to Horatio G. Spafford, who was then residing in Jerusalem, that he had purchased said premises, and that if Horatio G. Spafford desired to return to Chicago and to re-purchase the premises he would permit him to do so at the price paid therefor by him, with the carrying expenses of the premises added. Horatio G. Spafford did not return to Chicago, and although he lived six years after the receipt of said letter, the evidence does not show that he ever answered the same or in any way accepted the offer contained therein. The offer was apparently without consideration and was not acted upon by Spafford during his lifetime, or by his widow or heirs until more than fifteen years had elapsed after it was made and subsequent to its withdrawal by Samuel P. Hedges.
The evidence found in this record which is relied upon by the plaintiff in error to establish the right of the heirs of Horatio G. Spafford to redeem or re-purchase said premises is very uncertain and unsatisfactory. At the time the title passed out of Horatio G. Spafford his equity in the premises appears to have been of no value, and in view of the lapse of time intervening between the trustee’s sale and the filing of the cross-bill in this case, and the unsatisfactory and contradictory condition of the evidence, we think the circuit court properly dismissed the cross-bill of the plaintiff in error.
The decree of the circuit court will therefore be affirmed.
Decree affirmed.
