Borden v. Croak

• Decision Date: 26 November 1889
• Parties: BORDEN v. CROAK.
• Court: Illinois Supreme Court

131 Ill. 68

22 N.E. 793

BORDEN

v.CROAK.¹

Supreme Court of Illinois.

Nov. 26, 1889.

Appeal from appellate court, first district.

Wilson & Moore

, for appellant.

Young & Makeel, for appellee.

BAILEY, J.

William Borden filed his petition in the probate court of Cook county, in the matter of the estate of Thomas F. Croak, deceased, representing that by the provisions of a certain lease, executed by the petitioner to said Croak in his life-time, the petitioner was entitled to a valid and first lien upon all the goods and property of said Croak that might at any time during the term of the lease be situated in or upon the demised premises, for any rent accrued or to accrue, together with all costs and expenses of collecting the same; and praying to be allowed his claim for $250 for rent alleged to be in arrears, and that the same should be declared to be a first lien upon a stock of goods and merchandise kept by the lessee on said premises in his life-time, and that the administratrix be ordered to pay the same out of the moneys arising from the sale of said stock of goods. The probate court, on the hearing of said petition, found that the petitioner was entitled to a first lien on said goods as therein alleged, and ordered the administratrix to pay him said sum of $250 out of the proceeds thereof. On appeal to the circuit court, a hearing was had, resulting in an order declaring that the petitioner was not entitled to any preference or priority over any of the other creditors of said estate, and that he had no lien on the assets in the hands of the administratrix, but allowing his claim for $250 as a claim of the seventh class, to be paid in due course of administration. This order was affirmed by the appellate court on appeal; and the judges of that court having certified that the case involves questions of law of such importance, on account of principal and collateral interests, that it should be passed upon by this court, the record is now brought here by a further appeal.

The facts upon which the hearing in the circuit court was had appear by stipulation, and, so far as they are material to the questions arising upon the present appeal, are, in substance, as follows: Said Croak, in his life-time, was a merchant tailor, and was occupying, for the purpose of carrying on that business, a room in the Borden Block, Chicago, under a lease from the petitioner. Said lease was dated February 15, 1886, and demised to said Croak, for the term of one year, commencing May 1, 1886, the store in Borden block known as ‘No. 101 Randolph Street,’ to be used for a merchant tailoring store. The rent reserved was $1,500, payable in equal monthly installments in advance, on the 1st day of each and every month during said term. Among the various provisions of said lease was the following: ‘The party of the first part, his heirs, executors, administrators, or assigns, shall have, at all times, the right, upon request, to enter upon said demised premises to inspect their condition, and also to make any needful repairs or alterations which said party may desire or see fit to make, and also have a right of distress, and also a valid and first lien for said rent accruing or to accrue upon the property of the person or persons liable therefor, and also for the damages for the breach of any of the covenants herein contained, and the expenses, including attorney's fees, incurred in enforcing the same, and which are to be repaid to said first party, and which may be included and allowed in the suit as part of the damages.’ Said Croak died June 3, 1886, and the appellee, having been appointed administratrix of his estate, advertised for the presentation of claims, and claims were presented to the amount of $3,522.90, not including the claim of the petitioner for rent, and the appraisers allowed the appellee, as the widow of the deceased, the sum of $2,410 as her widow's award. On the 14th day of June, 1886, said administratrix filed her petition for an order to sell all the goods and chattels belonging to said estate for the payment of debts, and on the same day the probate court entered an order as prayed for, and thereupon the administratrix at once removed from the demised premises the stock of merchandise belonging to the deceased, and sold and converted it into money, realizing therefor the sum of $1,357. The remaining chattels belonging to said estate were also sold for sums which, added to the proceeds of the stock of goods, amounted to $1,565.10. On the 7th of September, 1886, the administratrix made due report of said sale, and on the same day, by order of the probate court, said report was approved. All the rent of said premises accruing prior to June 1, 1886, was paid by said Croak in his life-time. The petitioner claims only for the rent reserved for the months of June and July, 1886; he having accepted a surrender of the demised premises, and rented them to another tenant about September, 1886, and having expressly waived his claim for rent for the month of August, 1886. The petitioner's right to recover rent for said months of June and July is not contested.

The only question arising upon the record is whether, by the terms of said lease, the petitioner acquired a first lien upon said stock of merchandise, by virtue of which he is now entitled to payment out of the proceeds of said goods in preference to the other creditors of the estate. There is, however, no evidence that any portion of the goods which came into the hands of the administratrix were owned by her intestate at the date of the lease. If any inference on that subject is to be drawn from the admitted facts, it is in favor of the theory that said goods were purchased and acquired by said intestate after that date. The burden of proving the facts necessary to the establishment of the lien is clearly upon the petitioner, and, in the absence of proof that the intestate was the owner of said property at the time he took the lease, it will be assumed, as against the petitioner, that it is all after-acquired property. The question, then, is narrowed down to whether the provisions of the lease are sufficient to vest in the lessor such lien upon after-acquired property as will enable him to pursue the proceeds of such property into the hands of the lessee's administratrix. It may well be doubted whether the terms of the lease are not too general and uncertain to create a valid lien, even upon the property owned by the lessee at the time that instrument was executed. The attempt was to create a valid and first lien for the rent ‘upon the property of the person or persons liable therefor.’ No particular property, or class of property, is described, nor is the description limited to personal property. The word used would seem to apply indiscriminately, and with equal appropriateness, to every species of property of the lessee, whether real,...