Gunning v. Sorg , 113 Ill. App. 332 ( 1904 )

Mr. Justice Stein

delivered the opinion of the court.

First. It is assigned for error by both Gunning and Phillips that the court sitting in .equity was without jurisdiction in entertaining the intervening petition of Sorg and in granting relief thereon; and it is pointed out that the petition was in reality a proceeding for the recovery of possession of the demised premises and of purely legal cognizance. This is true, and it is also true that the relief prayed for and granted in respect of setting aside the ■ ninety-nine-year lease and the trust deed to Phillips as a cloud upon Sorg’s title, does not change or affect the character of the petition. ■ Sorg was not in possession. The premises were occupied by other parties, and therefore no bill by him to remove a cloud upon his title could be entertained. Revised Statutes, sec. 50 of ch. 22; Hardin v. Jones, 86 Ill. 313; Gould v. Sternberg, 105 Ill. 486; Gage v. Griffin, 103 Ill. 41. It appears, however, that after Sorg had brought his action of forcible detainer and while the same was pending, Phillips, upon filing a bill to foreclose' the trust deed given him by Gunning, procured the immediate appointment of a receiver who took possession of the premises, Gunning consenting thereto. There was so far as appears no necessity whatever for a receiver. Phillips was in the virtual possession or enjoyment at least of the premises before and at the time he filed theffifil. He was in receipt of the rent from Malkan, the actual occupant, who was in under a sub-lease from Gunning which had been assigned by the latter to Phillips as further security for the payment of Gunning’s note. The purpose of the parties in obtaining a receiver seems to have been to frustrate Sorg’s efforts to recover possession by means of his forcible detainer suit. Had he prosecuted the same to judgment, it would have done him no good. Through its receiver the court was in possession, and any attempt to interfere therewith would have constituted a contempt of court. Richards v. The People, 81 Ill. 551; St. L. A. & S. R. R. Co. v. Hamilton, 158 Ill. 366; Andrews v. Stanton, 18 Brad. 163. Under such circumstances there was only-one way for Sorg to assert his rights, and that was by applying to the court which had appointed the receiver for leave to make him a party to the detainer suit or to pursue his remedy against the receiver in the action in which he was appointed, whether that remedy was of a legal or equitable nature. In either event the court had ample power to grant it to him. It would truly be an edifying spectacle if a court organized to administer and enforce the law were itself to violate it by permitting its receiver to be and remain where he has no right to be and refusing all redress to the aggrieved party. The law does not so stultify itself. It rests in the discretion of the court to allow a party claiming rights against its receiver to bring an independent action against him or to compel such party to proceed against him by petition in the action in which he is receiver. The latter is the more common practice. Where the issues are at law the court may in its discretion try them itself or may refer them to a master or a jury for determination. Beach on Receivers, sec. 654; High on Receivers, 3rd ed., secs. 139 and 254 b, and cases cited by these authors which fully support the text; Andrews v. Stanton, supra; St. L., A. & S. R. R. Co. v. Hamilton, supra. In the case last cited our Supreme Court quote with approval this passage from Mr. High’s work : “ And ordinarily when real estate is in the actual possession of a receiver, an action of ejectment will not be maintained against him in another court, but the claimant will be permitted to pursue his remedy against the receiver in the action in which he was appointed.” The foregoing views dispose of the objections (which otherwise would have been good and valid) that legal rights are not within the jurisdiction of a court of equity when no equitable relief is given; that a court of equity has no jurisdiction in a foreclosure suit to try any question of title adverse to the title of the mortgagor, or that equity has no jurisdiction where there is a complete remedy at law.

Second. It is contended that no proper notice was given to terminate the ninety-nine-year lease. The petition alleges one given December 22, 1897, and another December 27, 1897. That the first one is not in compliance with the statute, is clear; but from this its invalidity does not follow. As stated in the petition and as appears from the copy of the lease attached thereto, the lease provides that in case of a default in the payment of rent, or “in carrying out any of the covenants and agreements required to be kept, done or performed by ” the lessee, the lessor might “ at his election declare this lease at an end, the term thereby agreed fully determined, and to re-enter,” etc. Eent was in arrears for several quarters. Petitioner had a right under the terms of the lease and without reference to the statute to declare the lease terminated after demanding the rent, and it is evident that he attempted to do so by the notice first given. The second notice is in full compliance with all statutory requirements and was properly served “by causing the same to be delivered to a person in possession of said premises as required by the statutes of the State of Illinois.” The truth of this allegation was found by the decree.

In this connection it may be mentioned that though there is no certificate of evidence in the record and the facts are not found by the decree except in a general way, no error has been assigned on that ground, and neither in the briefs nor upon the oral argument was any error claimed to exist in that regard.

Third. The grantors in the lease were petitioner and S. Jennie S.org, his wife. She did not sign the notices and was not made a party to the petition. It was not necessary that she should. The petition alleges that Paul J. Sorg, the petitioner, was the owner in fee of the premises, and both plaintiff in error and Phillips, who assigns cross-errors, admit this to be true in their answers. Manifestly Mrs. Sorg signed and was a party to the ninety-nine-year lease only to release her dower. In the lease itself it is covenanted that “at the time of leasing said premises /¿e” (meaning Hr. Sorg) “is well seized of said demised premises and has good right, full power and lawful authority to lease, demise and let the said premises in manner and form aforesaid, and the above demised premises in the quiet and peaceful possession of said party of the second part, during the term hereby granted, he shall and will warrant and defend.”

Fourth. The decree of July 13, 1898, was plainly interlocutory, and not final as contended by counsel. It afforded plaintiff in error and Phillips an opportunity to carry out their offers made in open court for seven days thereafter and thereby remain in possession to the exclusion of the petitioner. Failing to do so, a final decree was entered at the following term of court by which their rights were declared at an end and possession given to petitioner.

Fifth. Counsel are at fault in saying that the court erred in entering the decrees without first taking the default of Gunning. The decree of July 13,1898, recites that both the bill and' petition were heard upon Gunning’s answer to each.

Sixth. The action of the court in denying relief to Phillips upon his bill to foreclose was proper for the reason that after the leasehold interest upon which the trust deed was executed had been decreed out of existence and at an end there was nothing left to foreclose and nothing left for a foreclosure decree to operate upon. With the foreclosure element out of the case, there was no occasion for a money decree finding the amount due Phillips, and such action by the court would really have been a common law judgment which in the chancery proceeding it had no jurisdiction to enter.

The decree of the Circuit Court is affirmed.

Affirmed.