Wright v. Mahoney , 61 Ill. App. 125 ( 1895 )

Mr. Justice Boggs

delivered the opinion oe the Court.

The principal question here presented is whether Wright was authorized to seize the cow “ damage feasant.”

We think he was not.

He was the owner, but Mahoney was in possession of the farm, by peaceable entry as his tenant, and an action was pending to determine whether the right of occupancy had expired.

Under such circumstances Sec. 21, Chap. 54, R. S., does not invest an “ owner ” with authority to distrain animals belonging to the “ occupier.”

It was unlawful under the statute of forcible entry and detainer for the owner in the case at bar to enter upon premises in the actual possession of the “ occupier,” his tenant, for the purpose of seizing and removing from the premises animals of the latter. Being unlawful, such entry was a trespass, even though the tenant was holding over wrongfully. Reeder v. Purdy, 41 Ill. 284; Farwell v. Warren, 51 Ill. 467.

Section 21 aforesaid can not be construed to authorize the commission of a trespass.

The cow was, therefore, wrongfully in the possession of Wright and was properly restored to its owner by the judgment in replevin.

Whether the tenant was rightfully in possession of the farm, under the terms of lease, was unimportant.

He had actual possession, and the statute of forcible entry and detainer forbade forcible interference therewith.

Hence the court properly rejected evidence relating to the terms and conditions of the contract under which the tenant obtained possession of the farm.

The evidence upon which the award of damages was made in the main was incompetent.

But it was not objected to, nor was the court asked to withdraw it, or to instruct the jury as to the true measure of damages, or to grant a new trial for that reason.

We are without power to consider objections that might have been, but were not, made, and which might have been obviated in the lower court had they been made.

The judgment is affirmed.