Watson v. Smith , 1913 Ill. App. LEXIS 768 ( 1913 )

Mr. Justice Barnes

delivered the opinion of the court.

It is argued first that the bill does not show notice, or written consent by the lessor or his grantee, as expressly required in the lease, to any assignment of the lessee’s interest. The facts set up in the bill show that each successive assignee of the leasehold interest took open possession of the premises and in turn paid rent therefor directly to the then owner or assignee of the lease. The receiving of the rent under such circumstances gave implied consent to such assignments, and constituted a waiver of such provision of the lease. Hopkins v. Levandowski, 250 Ill. 372, and cases cited.

It is also urged that as the lease provided that nonpayment of rent constituted a forcible detainer and the lessees waived notice of election by the lessor to declare a forfeiture for such nonpayment, and as the rent was in arrears for four months when Smith obtained title to the lots, he could take possession of the premises without giving such notice. But the default in the payment of rent took place before he acquired title to the reversion, and as assignee thereof he could not take advantage of a cause for forfeiture which accrued prior to the assignment to him of such reversion. 18 Amer. & Eng. Ency. of Law (2nd Ed.) 393; Watson v. Fletcher, 49 Ill. 498; Trask v. Wheeler, 7 Allen (Mass.) 109; Small v. Clark, 97 Me. 304; Fenn v. Smart, 12 East 444.

Besides, the deed to Smith having been made subject to the lease in question, he could not declare a forfeiture thereof upon grounds which his lessor by his conduct had previously waived. McConnell v. Pierce, 210 Ill. 627; Watson v. Fletcher, supra.

From the allegations in the bill, it is apparent that neither the building nor the leasehold was regarded or sold as the assets of the bankrupt, and that Smith’s purchase at the bankrupt sale gave him no title thereto. His rights thereto rested solely upon his deed from the Chicago Title & Trust Company.

But appellant contends that Nelson’s contract with Benson operated to devest Nelson of the title to the building and leasehold, and, therefore, Watson acquired no title from him. As the contract .expressly reserved the title to Nelson until full payment was made, it was one of conditional sale, (Gilbert v. National Cash Register Co., 176 Ill. 288,) and no rights of a bona fide purchaser or execution creditor having intervened there was nothing to prevent Nelson from asserting his title on the failure to comply with its conditions. Herbert v. Rhodes-Burford Furniture Co., 106 Ill. App. 583. His title therefore passed to Watson.

Watson having tendered to Smith all the rent and taxes that had accrued before Smith acquired title, and having kept his position good by tendering the next instalment of rent as it accrued, and Smith having abandoned his forcible entry and detainer proceedings and taken forcible possession of the property on the same being vacated by the receiver, the question arises whether Watson was entitled to the equitable relief sought.

Never having been in actual but only constructive possession of the premises, he was in no position to resort to the legal remedy of forcible entry and detainer. Thompson v. Sornberger, 59 Ill. 326; Whitehill v. Cooke, 140 Ill. App. 520. No default took place after Smith acquired title upon which he could declare a forfeiture, and as before stated none could be declared on default occurring before he acquired title, for which full compensation was tendered. Equity will grant relief against an attempt to declare a forfeiture where full compensation can be made. “Forfeitures are not regarded by courts with any special favor” (Palmer v. Ford, 70 Ill. 369) and courts of equity treat provisions for the forfeiture of leases for nonpayment of rent as intended merely as security for the payment of rent, and assume jurisdiction to relieve tenants from such a forfeiture upon the payment of all rent in arrears. 18 Amer. & Eng. Ency. of Law (2nd Ed.) 389; 2 Story’s Eq. Juris., secs. 1314-1316; Giles v. Austin, 62 N. Y. 486; Noyes v. Anderson, 124 N. Y. 175.

If, as we hold, the case is properly one of equity jurisdiction, there can be no question that the court had power to enter a mandatory injunction, enjoining Smith from interfering with, impeding or hindering the complainant in his rightful occupation of the building, under the circumstances set forth. Burrall v. American Telephone & Telegraph Co., 224 Ill. 266; Spalding v. Macomb & W. I. R. Co., 225 Ill. 585.

The demurrer was properly overruled and the decree will be affirmed.

Affirmed.