Murr v. Glover , 1889 Ill. App. LEXIS 260 ( 1889 )

Upton, P. J.

It is apparent that the appellees must sustain the judgment in the court below, if it can be sustained, by virtue of the above mentioned lease from Harriet and John Glover to the appellant. Ho other demise is shown, or attempted to be shown, in the record before üs. It is well settled that there can be no distraint, unless there has been an actual demise; in other words, unless the relation of landlord and tenant exists. Taylor’s Landlord and Tenant, Sec. 561; Wood’s Landlord and Tenant Sec. 542; Hatfield v. Fullerton, 24 Ill. 273; Johnson v. Prussing, 4 Ill. App. 575.

In Reed v. Bartlett, 9 Ill. App. 267, this court held that a purchaser at a foreclosure sale, although he became the owner in fee and could maintain ejectment and forcible detainer against the tenant holding under the grantors of the equity of redemption, could not distrain for rent against such tenant, unless the tenant had attorned to him, and that a new notice to the tenant to pay to such purchaser the rent, where the tenant does not agree to do so, or consent thereto, will not make the tenant liable to such purchaser in proceedings for the rent by distraint, as the relation of landlord and tenant did not exist between them.

These principles are elementary, and are too well established to warrant further discussion. In the case at bar appellant refused to recognize the appellees, or any of the grantees of Foster, as his landlord, either by attorning to them or the payment of rent to them, or in any other manner. Hence there was no privity established between the appellant and the appellees by any contract or agreement between them nor by virtue of the conveyance from Foster to the appellees.

True, the appellees were the children of the lessors—Harriett and John Glover—but the appellees did not take the demised premises from their father or their mother as “ their heirs,” but took as “ the heirs of the reversion” under the conveyance from Foster.

The term “heirs,” as used in the deed from Roby to Foster, were words of description merely, designating upon whom the estate should be cast, upon the death of the beneficiary, for life. Foster, the appellee’s grantor, was not a party to the demise, or in privity with the appellant, and had no right to enforce any of the provisions thereof. There being no promise on the part of the appellant to pay the rent or any part of it to the appellees, and no privity of estate between them, we fail to 'see upon what ground a recovery can be sustained in this case. In Gillick v. McAllister, 10 Appt. Ct. R., this court held, that when a widower holding by the courtesy, leases and dies, a child, the heir of the deceased wife, being the heir of the reversion, can not distrain under such lease, not being the heir of the lessor.

It is not doubted that if the tenant under the demise from Mrs. Glover continued to occupy the premises demised, without attornment to the heirs of the reversion, he would be liable for the reasonable rental value of the land so occupied to such heirs, in an action for use and occupation, as might be shown by the evidence. But such heirs could not recover rent in any form of action for any time prior to the time when the estate was cast upon them by the death of Mrs. Glover, and hence the judgment of the court below was too large in any event. Hoagland v. Crum, 113 Ill. 370.

It is insisted, however, that under the provisions of Secs. 14 and 18 of Chap. 80, R. S., the appellees are entitled to recover in this action the rent in the lease from Mrs. Glover stipulated. It must be borne in mind that the appellees have no interest in any of the rents belonging to Mrs. Glover; their estate was wholly collateral to and independent of hers, and they were in no way successors to her. The trustee, Foster was powerless to rent the land for any greater length of time than the life of the beneficiary, Mrs. Glover, and had no power to rent it for the benefit of the appellees. His only trust as to them was to execute to them a conveyance at Mrs. Glover’s death. Hnder Sec. 15, Chap. 80, R. S., appellees, as the grantees of Foster, would have no right to enforce any terms of the lease against appellant. That statute was only intended, it is believed, to apply to cases where there was a privity of estate between the lessee of the grantor, who held the title in his own right and not for separate and independent uses as in the case at bar, in which such trustee simply passed the title held in trust by him, as a separate and independent trust to the grantee.

The statute creates a privity of estate between the grantee of the lessor and the lessee of the grantor, claiming under a lease made prior to the alienation, and places the grantee in the place of the original lessor as to his liability to such tenant. Thus there being a privity of estate between the parties, the statute creates a privity of contract also.' This undoubtedly is based upon the assumption that. the lease was in force under section 14 of the same act, and the lessee protected in his lease, without reference to its term of duration, and the grantee of the reversion succeeded to the rights of the grantor under the lease; but that is not the case at bar. The statute referred to was intended to enforce mutuality of contracts as well as to preserve all remedies in the lease contained to both the grantee and tenant of the original lessor as well as the rights and remedies of such original lessor as to each. But in' the case at bar where the grantor, Foster, if he had actually executed the lease to the appellant, instead of Mrs. Glover, such intention could not have been inferred, for in no event could Foster execute a lease for a longer term than the life of Mrs. Glover, which must have been well known to all the parties to the lease at the time of its execution.

The estate or uses of Mrs. Glover was severed from the remainder held for another use by Foster, and terminated by Mrs. Glover’s death. Upon the happening of that event, the entire estate descended to the appellees, and had there been no trustee in the case, which we conceive makes no difference, the case at bar would, in our opinion, be on all fours with the case of Hoagland v. Crum et al., supra. The fact that there was a trustee holding the estate for separate and independent uses could not change the principle. It is more particularly illustrated in this case, where it appears the trustee, Foster, turned over the possession of the land to the life usee, Mrs. Glover, to do as she liked with it, during her life, instead of renting the land himself and paying her the rent. She then proceeded to treat the use as a legal estate and rent it in her own right, taking upon herself its administration. This clearly shows that Foster, the trustee, had no privity of contract with appellant. That privity existed only between Mrs. Glover and her husband and the appelant. Therefore Secs. 14 and 15 of Chap. 80, supra, could not apply.

The only remedy appellees could have would be in a proper action against appellant for use and occupation, and not by distraint under the lease. We are not called upon to determine whether the above sections of the statute do away with the necessity of attornment, as was certainly the case before that enactment. Fisher v. Deering, 60 Ill. 114; Whiting v. Dool, 117 Mass. R. 152. In this view the judgment of the court below can not be sustained.

Besides, the judgment in the Circuit Court was based upon the rent stipulated in the lease, from September 1,1887, to September 1, 1888. In no event could any rent have been recovered from September 1, 1887, the time at which the last installment of rent fell due, to ¡November 3, 1887, the date of Mrs. Glover’s death. Hoagland v. Crum, 113 Ill. supra.

Fertile reasons indicated the judgment of the Circuit Court must be reversed and the cause remanded for further proceedings in that court in conformity with the views hereinbefore expressed.

Reversed and rema/nded.