Allen v. Webster , 56 Ill. 393 ( 1870 )

Mr Justice Breese

delivered the opinion of the Court:

The main question presented by this record is, who was entitled to the possession of these premises at the time complaint was made? If Webster, then the judgment must be affirmed; if Yanderburg, then it must be reversed, and it is to this we have directed our attention.

The question is not difficult of solution when the facts are considered.

The first fact is, that Webster, the appellee, claimed to be the owner of the premises, and had leased them to appellant, who had taken possession. The next fact is, that appellant’s term having expired, appellee, by a verbal lease, let them to one Yanderburg, who, with the consent of appellant, took possession, and proceeded to cultivate a portion of them. This last fact is conclusive in this case. The verbal lease to Yanderburg was a legal and binding letting of the premises, and entitled Yanderburg to the possession and which he actually obtained with the assent of appellant. This being the state of the case, appellee was not, at the time the complaint was made, entitled to the possession, but the same belonged to Yanderburg, and brings the case within the second branch of the statute respecting forcible entry and detainer, and within the ruling of this court in Dudley et al. v. Lee, 39 Ill. 344. It is,, clear, Yanderburg being entitled to the possession, the appellee could not be, and the judgment declaring the right to be in him was erroneous, and must be reversed and the cause remanded.

Judgment reversed.