A. N. Kellogg Newspaper Co. v. Peterson , 162 Ill. 158 ( 1896 )

Mr. Justice Phillips

delivered the opinion of the court:

Where the goods and chattels sold are of a nature or character that thej^do not admit of an actual, immediate and complete delivery, the law recognizes and allows a symbolical delivery as being a sufficient transfer and delivery. The delivery of the keys of a store or building in which goods are, is construed clearly expressive of a symbolical delivery which will pass the possession, where such is the intent of the parties, in good faith. (Wilkes v. Farris, 5 Johns. 335; Packard v. Dunsmore, 11 Cush. 282; Marsh v. Fuller, 18 N. H. 360; Vincent v. Gilbreth, 39 Me. 496; Sullivan v. Smith, 15 Neb. 476; Sharp v. Carroll, 66 Wis. 62; Hart v. Wing, 44 Ill. 141; Logsdon v. Spivey, 54 id. 104; Ticknor v. McClelland, 84 id. 471; Feltenstein v. Stein, 157 id. 19.) The goods and chattels sold were of a nature and character they were not susceptible of an actual, complete and immediate delivery and removal, and the sale being in good faith, a symbolical delivery by locking the doors and delivering the keys to the appellee was a delivery of possession to him, and was not fraudulent, in fact or in law, as against appellant.

It is a principle of construction that laws which enlarge the common law remedy by distress must be strictly interpreted. Our statute does not give the landlord a prior lien by distress greater than existed at common law, except in the case of crops grown or growing on the demised premises. (Hadden v. Knickerbocker, 70 Ill. 677.) At common law a levy of a distress warrant could only be made upon the demised premises, and a right of distress terminated by a removal of goods from such demised premises, and the goods of a stranger upon the demised premises, except in a very few instances, were at common law liable to distress. The excepted cases were such as the goods of a boarder in his room on the premises, etc. By section 16 of the Landlord and Tenant act the landlord may seize for rent any personal property of his tenant that may be found in the county where the tenant resides. That section also provides: “And in no case shall the property of any other person, although the same may be found on the premises, be liable to seizure for rent due from such tenant.”'

At common law the goods of a tenant were free from a lien until they were actually taken. The lien attached on seizure, only. Except as to crops grown or growing upon the demised premises that is the rule in this State. A landlord can in this State, with the above exception, only acquire a lien by commencing proceedings. Until he does so the tenant is as much the owner of his effects as any other person who owns property and owes debts. No dormant or secret lien of a landlord exists against a tenant’s property until a seizure by distress or other proceeding. The tenant may sell and the buyer may remove the purchased goods. The tenant may convey title where the sale is made in good faith on the part of both buyer and seller. (Morgan v. Campbell, 22 Wall. 381; Becker v. Dupree, 75 Ill. 167; Hadden v. Knickerbocker, supra.) By the sale and delivery of the keys in this case the possession and right to possession passed to appellee. The refusal to allow appellee to remove the goods, and the subsequent sale and delivery thereof, by reason of which he lost the property, were wrongful acts and a conversion.

The trial court, in its instructions, correctly laid down the law, and there was no error in the admission or exclusion of evidence. The question of damages being excessive is not for this court.

We find no error in the record, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.