Ligare v. Chicago, M. & N. R. Co. , 50 Ill. App. 84 ( 1893 )

Opinión of the Court,

Waterman, J.

Appellant insists that appellee obtained possession of his premises under an order of court, by making a deposit of $35,000; that appellant is still in possession, and although its occupancy so obtained is no longer lawful, the condemnation suit, by a reversal, without being remanded, having come to an end, and so the condition under which the deposit was to be returned to the City of Chicago or the party making such deposit, if entitled thereto, having happened, yet appellee should not be allowed to take such deposit until possession of the premises is surrendered to him, appellee.

Upon the hearing of this motion, appellee offered, as did the City of Chicago, to consent to the payment of $35,000 to appellant, if he would accept the same as payment of compensation for the property involved in the condemnation case; but he refused to accept it.

So far from its appearing that appellant is now entitled to the possession 'of these premises directly, the contrary was shown. Appellant, by demurring thereto, admitted the truth of the allegations of the petition, asking that the certificate for $35,000 be turned over to appellee; that petition sets forth that neither the City of Chicago, petitioner, nor any other person is in possession of said premises by virtue of the judgment in said condemnation suit, or proceedings in said Superior Court; “that said city is in possession of said premises, but such possession is held solely by virtue of a lease of said premises made by Ligare (appellant), and running until May, 1896, or later.”

So far as being entitled to demand that as a condition to the return of said $35,000 to the person entitled thereto, he should be restored to the possession of said premises, appellant is in the same position he would be had he sold and conveyed the same; he refused to abide by the judgment in the condemnation suit appealed therefrom, and secured a reversal thereof; that proceeding being now forever at an end, because appellant refused to accept the $35,000 therein awarded to him, he can not claim any rights thereunder. Neither the city nor appellee are claiming anything by virtue of that suit. The right, possession and claim to said premises adverse to appellant is entirely under a lease voluntarily made by appellant. There is no reason Avhy a large sum of money deposited under an order in litigation, under which no one is claiming any right, should longer be tied up and kept from those to whom it belongs.

If appellant desires to claim that the. lease" of the premises by him made is no longer operative, or that the possession of the city or the occupancy of the premises is unlaAVful, there is nothing to hinder his asserting and maintaining his rights in a proper proceeding, but there is no reason why he should be allowed to keep the rightful'owner of this money out of that to which he, appellant, has no claim. The order of the Superior Court will be affirmed.