Marshall v. Eggleston , 1898 Ill. App. LEXIS 635 ( 1899 )

Mr. Presiding Justice Windes

delivered the opinion of. the court.

Appellees claim the judgment is light. First, because they were dismissed out of the ejectment suit; second, that they had nothing to do in any way with the original trespass, and did no injury to the land; third, appellant’s agent saw appellees pay their money, made no protest, and gave no notice they would be held by appellant; fourth, that the damage is only nominal under the evidence; and, fifth, Woodbury can not be held, because he only acted as attorney.

The first contention, is not tenable. Appellant was not bound to continue these appellees as defendants to the ejectment suit, and when they were dismissed out of that case, the statute of ejectment relating to the recovery of mesne profits has no application to them. They were liable to an action in trespass for mesne profits. Waterman on Trespass, Secs. 928 and 931; Snow v. McCormick, 43 Ill. App. 538, and cases there cited; Western B. & S. Co. v. Jevne, 78 Ill. App. 669; Green v. Biddle, 8 Wheaton, 75.

In so far as Smith v. Wunderleck, 70 Ill. 426, may be said to hold to the contrary, we think the language was not applicable to that case, as there had been no re-entry by plaintiff, as in the case at bar.

As to appellees’ second point, it is wholly immaterial that they had nothing to do with the original trespass, and did not injure the land. Appellant does not seek to recover for injury to the land, but for its use by appellees wrongfully. Appellee Woodbury, being the attorney of the defendants in the ejectment suit then pending, had actual notice of appellant’s rights and title. In fact, he says in bis brief he leased the premises for the defendants in the ejectment case. The other appellees, taking and holding by virtue of the lease to them by Woodbury, can get no greater right or title than he. Moreover, they are bound by constructive notice of appellant’s rights and title by the pendency of the ejectment and chancery suits. They can not be innocent purchasers any more than a tenant who takes a lease from a stranger pending foreclosure proceedings. Appellees were all trespassers, and equally liable with the original trespassers for the time they used the property. Yates v. Smith, 11 Ill. App. 459; Ellis v. Sisson, 96 Ill. 105; Schreiber v. R. R. Co., 115 Ill. 340; Doe v. Whitcomb, 8 Bing. 46; Bradley v. McDaniel, 3 Jones (N. C. Law), 128.

3d. There is no evidence that appellant saw appellees pay their money. Appellant’s agent was told by one of the appellees he had paid rent. We have been cited no authority that appellant is precluded from recovering from trespassers on his property for its use, because he fails to notify them that they are trespassing, and fails to tell them he would hold them. We think there is no such respectable authority.

4th. It does not tend to support the judgment in this case that the evidence, as claimed by appellees, shows only nominal damages. That fact, if shown, as we think it is not, could not affect appellant’s legal right to a judgment even for nominal damages.

5th. Even if appellee Woodbury was attorney, and oüly acted as such, he can not escape liability. All trespassers are treated alike, whether acting for themselves or others. Also, when he had an opportunity, in answer to a direct question, to show he had paid the rent to his clients,he fails to answer whether he did or not.

The judgment is reversed and the cause remanded.