| Ill. | Oct 23, 1907
delivered the opinion of the court:
Three grounds are urged by plaintiff in error as reasons .for a reversal of the judgment of the Appellate Court: (i) He was entitled to retain possession by virtue of covenants of renewals in the leases; (2) that defendant in error had no right to the possession unless she acquired title thereto by the conveyances from the Cookes, and it is insisted that their interest in the premises was not alienable, and therefore defendant in error acquired neither title nor right of possession by virtue of said conveyances; (3) that if said covenants were void as covenants for renewal, permitting him to remain in possession for so long a time after the terms mentioned in the lease had expired made him a tenant from year to year, and as such he was entitled to the notice provided for the termination of such tenancies by section 5 of the Landlord and Tenant act.
First—It will be observed that the covenants for renewal did not fix the amount of rent to be paid for the extension term, but merely provided that plaintiff in error might have the “privilege of five years longer, he paying additional rent on re-valuation now fixed at $500.” No provision was made as to when or how the re-valuation should be determined. The provisions, therefore, for the renewal of the leases were too vague and indefinite to constitute valid covenants for renewal. 1 Taylor on Landlord and Tenant, (8th ed.) sec. 333; 18 Am. & Eng. Ency. of Law, (2d ed.) 686.
Second—Clause 7 of the will is of such extreme length that we shall not set i't out in full. The following extract from it sufficiently shows the nature of the estate devised to the sons of the testator, defendant in error’s grantors. By said clause testator devises “in equal parts to my two sons, H. Brent Cooke and J. Esten Cooke, upon the following trusts and with the following limitations, to-wit: The part devised to each of them shall be held by him for his own benefit for the period about to be mentioned, but without any power in him to sell or encumber the same or to anticipate its income or in any way subject same to his debts for and during his natural life, or until a court of competent jurisdiction shall by a judgment hold that his interest in said property, or its use or income, is liable to be subjected to his debts or liable to be sold or encumbered by him or to have its rents and profits anticipated by him, with remainder after such death or judgment to my grandchildren now born or to be hereafter born, per capita and not per stirpes; but in case of the death of any such grandchild, leaving descendants, before the termination of the particular estate, the interest he or she would have taken shall go to his or her descendants. And though such judgment should be appealed from, still it is my will that said beneficial interest of that son against whom such judgment shall be entered shall cease and determine at the date of the judgment appealed from.” The codicil provided that if either of the sons should attempt to set aside the will or institute proceedings at law to change it in any way, the interest of such son should cease and go to other persons therein provided.
The clause of the will quoted in part, appointed the two sons trustees of the property devised for their own use and benefit during their natural lives. The language used indicates that the testator intended them to have the possession and occupancy of the lands during their lives, without the right to sell or encumber the same unless a court of competent jurisdiction should hold the property subject to the debts of the life tenant or liable to be sold or encumbered by them, or in case-proceedings at law should be instituted by the sons “to change in any way” the will, in either of which events the interest of the sons was to terminate. No trustee having been provided to hold the legal title during the time the testator’s sons should have the beneficial interest in the premises, the effect of the devise was to vest in the sons of the testator a life estate, and the attempt to deprive the life tenants of the power of alienation is repugnant to the estate devised, and therefore void. (Henderson v. Harness, 176 Ill. 302" date_filed="1898-10-24" court="Ill." case_name="Henderson v. Harness">176 Ill. 302;) In that case it was said (p. 310) : “By placing this estate devised to Milton Harness in the hands of trustees, as in Steib v. Whitehead, 111 Ill. 247" date_filed="1884-09-27" court="Ill." case_name="Steib v. Whitehead">111 Ill. 247, and applying the rents therefrom which should be paid to the appellee, the testator could have accomplished the ends which it is insisted by appellee it was the intention to' accomplish. The intervention of trustees was not sought by the testator nor used, and no principle of public policy or of stare decisis establishes a rule in this State that the testator may, without the intervention of a trustee, vest an estate in fee or for life in the first taker with a restriction thereon repugnant to an estate, and which would prevent alienation of the same or seizure under process of law.”
Third—Upon the third proposition above stated we are of opinion the contention of plaintiff in error is correct. Although the covenants for renewal in the leases were not e'nforcible because of their uncertainty, plaintiff in. error was permitted to remain in possession of one of the lots two years and a half, and of the other one year and a half, after the original term in the leases had expired. There is no proof that any rent was due or unpaid at the time the demand for possession was made and the suit instituted. The leases bound plaintiff in error to. pay the taxes on the premises, and in event of his failure to do so the same might be paid by the lessor and charged to the lessee and collected in the same manner as rent. In making his defense in the trial court'plaintiff in error introduced in evidence a tax deed for said premises issued to a third party, and from' this defendant in error argues that the proof shows plaintiff in error had not paid the rent. Such an inference is not warranted. When the agent of defendant in error called upon plaintiff in error he' did not claim there vras any rent in arrear, nor is the demand for possession based upon the claim that plaintiff in error had failed to pay rent due or that he had violated any of the terms of the leases under which he was holding over. In the absence of proof to that effect we cannot assume that plaintiff in error had held over without the payment of any rent. The theory of defendant in error in demanding possession and in instituting suit appears to have been, and it is so argued in counsel’s brief, that after the expiration of the original term of the leases plaintiff in error was subject to be dispossessed at the will of the landlord. If, as we must presume in the absence of proof to the contrary, plaintiff in error was suffered to remain in possession of one of the lots more than two years and the other more than one year after the expiration of the term mentioned in the leases, during which period the rent was collected from him therefor, he would become a tenant from year to year. In Hunt v. Morton, 18 Ill. 75" date_filed="1856-12-15" court="Ill." case_name="Hunt v. Morton">18 Ill. 75, the premises were leased to the tenant in the fall of . the year under an agreement that he might remain in possession until the following spring. He remained in possession the year following the fall of his entering upon the premises and raised a. crop on the land. The following winter he left the premises in possession of his son, who continued in possession and raised a crop thereon the next year. The court treats the possession of the son “the same as if the father had continued and was still in possession,” and says, by Catón, J.: “Without any new agreement, and without objection from the landlord or his agent, the tenant continued his possession for two years and over and cultivated the land in crops for both seasons. This certainly created a tenancy from year to year, if it is possible for such a tenancy to be created without an express agreement to that effect, which I presume will not be controverted.” See, also, Eppstein v. Kuhn, 225 Ill. 115" date_filed="1906-12-22" court="Ill." case_name="Eppstein v. Kuhn">225 Ill. 115; Abeel v. Radcliff, 13 Johns. 297" date_filed="1816-05-15" court="N.Y. Sup. Ct." case_name="Abeel & Abeel v. Radcliff">13 Johns. 297; 1 Taylor on Landlord and Tenant, (8th ed.) secs. 55, 56, 57; 4 Kent, 112, 114.
The authorities cited by defendant in error are not in conflict with this rule. In Cairo and St. Louis Railroad Co. v. Wiggins Perry Co. 82 Ill. 230" date_filed="1876-06-15" court="Ill." case_name="Cairo & St. Louis Railroad v. Wiggins Ferry Co.">82 Ill. 230, the leasing was for a definite term and after it expired the defendant held over, without, however, the consent of the plaintiff. In Brown v. Keller, 32 Ill. 151" date_filed="1863-04-15" court="Ill." case_name="Brown v. Keller">32 Ill. 151, the leasing was for six months. The party holding over disclaimed holding under the lessor as landlord but claimed adversely to and independent of him. Section 22 of 1 Taylor' on Landlord and Tenant lays down the rule that a tenant “who holds over after the expiration of his term without paying rent or otherwise acknowledging a continuance of the tenancy becomes either a trespasser or a tenant, at the option of the landlord.” Here there is no evidence that during the long period of time plaintiff in error held over he ever failed or refused to pay rent or that he ever claimed adversely to the owner. What he said when Fay asked him to pay rent was not that he would not pay, but that he would do so when he knew the right party to pay it to. Under the state of defendant in error’s title this cannot be said to be an unwarranted precaution on his part or a denial of her right as landlord. It does not appear that plaintiff in error ever claimed from any other source than the original leases. A tenancy from year to year can not be terminated by a demand for immediate possession, but such tenant must be notified to quit in accordance with the requirements of section 5 of chapter 80, Hurd’s Statutes of 1903. These requirements not having been complied with by defendant in error she was not entitled to possession, and the judgment of the Appellate Court to the contrary was erroneous.
The judgment of the Appellate Court is therefore reversed and the judgment of the superior court affirmed.
Judgment reversed.