146 Ill. App. 450 | Ill. App. Ct. | 1909
delivered the opinion of the court.
The contentions of appellant’s counsel are, that the lease must be regarded as that of Bobert P. Walker, and that he only can sue on it; that it appearing from the evidence that appellee was the owner of the demised premises, and that Bobert P. Walker had no interest therein, appellant took nothing by the lease, and is not liable for the rent, and that there was smallpox in the first flat of the building before the execution of the lease.
Conceding that the word “Agent” next following the signature of Bobert P. Walker to the lease, is mere descriptio personae, and, therefore, that Mr. Walker must be regarded as the lessor, the evidence is that he assigned the lease to appellee, which being the case, appellee has the same remedy for the recovery of rent due by the terms of the lease which Mr. Walker would have had if there had been no assignment of the lease. Hurd’s Stats. 1905, chapter 80, section 14, p. 1298; Keeley B’g. Co. v. Mason, 102 Ill. App. 384.
To this appellant’s counsel objects that the assignment is not proven, that it was not read in evidence. It was necessary to file the warrant of attorney in order to obtain judgment by confession, which warrant is contained in the lease; therefore, it was necessary to file the lease, which was filed, attached to the declaration, and was read in evidence by appellant, on the motion to vacate the judgment. The assignment is written on the back of the lease, and the lease is in the record. The judgment was rendered in open court on a day of the August term 1905 of the court. All presumptions are in favor of the judgment, and it must be presumed that the assignment was considered by the court. If it is conceded, .as appellant’s counsel contends, that Bobert P. Walker was the lessor and landlord, and that suit could only be maintained by him in the absence of an assignment of the lease, the fact that the title to the demised premises was not in him, but in appellee, would be no defense to a suit by him for the rent. The lease in question is not a deed poll, but an indenture signed by both parties, and imposing obligations on both, and appellant entered into possession under it. In such case he cannot dispute his landlord’s title. Heisen v. Heisen, 145 Ill. 658, 665, et seq. See, also, Mackin v. Haven, 187 Ill. 480, 501, and Scott v. Rutherford, 92 U. S. 107. In the last case a lease was executed by persons in their own names, but describing themselves as agents, and not disclosing their principal. Held, that they were the lessors and that the lessee, who went into possession of the leased premises, could not dispute their title.
The great preponderance of the evidence is that there was no one afflicted with small-pox in the building in which the demised premises were, March 28, 1905, when the lease was executed, or at any time thereafter until after appellant took possession, which Emil J. Weber deposes was about April 28 or 29, 1905. Appellant retained possession till nearly the last of May, and there was no surrender of the premises. The fact that, after the lease was executed and appellant had taken possession, persons in the first or lower floor of the building, were stricken with small-pox, is no defense, in the absence of a covenant in the lease against infectious diseases.
In Edwards v. McLean, 122 N. Y. 302, a lease was executed March 28, 1885, for a term of four months from June 1, 1885, the reserved rent being $800. Between the time of the execution of the lease and June 1, 1885, a child of a tenant of the demised premises, whose term was to expire May 15, 1885, was stricken with scarlet fever, and the lessee refused to accept the lease and returned it to the lessor with notice of refusal. The action was for rent due by the terms of the lease. Held, that the lessor was entitled to recover, the court saying: “In the absence of an express covenant a lessor cannot be understood to undertake that the premises embraced in the lease will remain free from infectious diseases during the term. The disease may break out in the tenant’s family after he has taken possession, or it may spread upon the premises from neighboring residences. To hold that a tenant under such circumstances would be relieved from paying rent, would, in times of an epidemic of contagious disease in a populous city, nullify a majority of the leases. (Murray v. Albertson, 50 N. J. L. 167; Franklin v. Brown, 27 N. Y. S. R. 955; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245; Jaffe v. Harteau, 56 id. 398; Chadwick v. Woodward, 13 Abb. (N. C.), 441.)”
Aside from the claim in reference to small-pox, the defense is purely technical, and such defense to a judgment by confession cannot prevail. A motion to set aside a judgment by confession, rendered in open court, in term time, as was the judgment in question, appeals to the equitable jurisdiction of the court, and will not be granted, except for equitable reasons. Packer v. Roberts, 140 Ill. 9; Hier v. Kaufman, 134 ib. 215; Mumford v. Tolman, 157 ib. 258.
No meritorious defense is shown in support of this motion. Appellant owes the rent for which judgment was rendered, and appellee, the owner of the demised premises, is entitled to receive it, and no equitable reason why appellant should not pay it is shown by the record.
The order denying appellant’s motion to vacate the judgment will be affirmed.
Affirmed.