Cunnea v. Williams
| Decision Date | 31 May 1882 |
| Citation | 11 Bradw. 72,11 Ill.App. 72 |
| Parties | JOHN CUNNEAv.DANIEL WILLIAMS. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Livingston county; the Hon. OWEN T. REEVES, Judge, presiding. Opinion filed May 31, 1882.
Messrs. HALEY & O'DONNELL, for appellant; that a demurrer admits the truth of the averments to which it is interposed, cited Deem v. Crume, 46 Ill. 69; The People v. Holden, 82 Ill. 93; Arenz v. Weir, 89 Ill. 25; Nispel v. Laparle, 74 Ill. 306.
The Act of 1877, Rev. Stat., Chap. 80, § 34, relating to the lien of landlords, affected only the remedy, and applies to leases made before the passage of the act: James v. Stull, 9 Barb. 482; Cook v. Gray, 2 Houston, 455; Coxe's Ex'rs. v. Martin, 44 Pa. St. 322; Berthold v. Fox, 13 Minn. 506; Morse v. Gould, 1 Kernan, 281; Stocking v. Hunt, 3 Denio, 276; Conkey v. Hart, 14 N. Y. 22; Van Rensselaer v. Snyder, 3 Kernan, 299; Taylor v. Stockwell, 18 Am. Law Reg. 569; Moore v. Litchford, 35 Tex. 185; Simpson v. City Sav. Bank, 22 Am. Rep. 491; Wooley v. Alexander, 99 Ill. 188; Parmalee v. Lawrence, 48 Ill. 339; Stockton v. Munson, 28 Ill. 51; Dooley v. Stipp, 26 Ill. 86; Stafford v. Vail, 22 Ill. 327; Nichols v. Stewart, 21 Ill. 106; Mathias v. Cook, 31 Ill. 87; Bruce v. Schuyler, 4 Gilm. 276.
Matters in recoupment may be shown under the general issue: Higgins v. Lee, 16 Ill. 495; Babcock v. Trice, 18 Ill. 420.
Indebtedness for rent was proper matter of recoupment: Stow v. Yarwood, 14 Ill. 424; Brigham v. Hawley, 17 Ill. 38; Sanger v. Fincher, 27 Ill. 347; Burroughs v. Clancey, 53 Ill. 30; Streeter v. Streeter, 43 Ill. 155; Pudget v. Priest, 2 Durn. & E. 97; Jarvis v. Rodgers, 15 Mass. 389; Stearns v. Marsh, 4 Denio, 227; Fowler v. Gilman, 13 Met. 267; Story on Bailments, § 345; Salters v. Everett, 20 Wend. 267; Green v. Farner, Burr. 2214; Pierce v. Benjamin, 14 Pick. 356; Board v. Head, 3 Dana, 489; Curtis v. Ward, 20 Met. 204; Camp v. Ganly, 6 Bradwell, 499.
A landlord's lien does not depend upon the levy of a distress warrant; it can be lost only by waiver or failing to enforce it at the proper time: Wetsel v. Mayers, 91 Ill. 497; Thompson v. Mead, 67 Ill. 395.
The lien was not waived by taking a note for the rent: Van Court v. Bushnell, 21 Ill. 626; Cornell v. Lamb, 20 Johns. 405; Bates v. Nellis, 5 Hill, 651. Messrs. JORDAN & STOUGH, Mr. L. G. PEARRE and Mr. A. W. BULKLEY, for appellee; that a statute operates in futuro only, cited Marsh v. Chestnut, 14 Ill. 223; In re Fuller, 79 Ill. 107; Hatcher v. T. P. & W. R. R. Co. 62 Ill. 480; Thompson v. Alexander, 11 Ill. 55; Garrett v. Wiggins, 1 Scam. 355; Bruce v. Schuyler, 4 Gilm. 221.
The statute in force at the time of making the contract, enters into and becomes a part of the contract: Van Hoffman v. City of Quincy, 4 Wall. 535; McCracken v. Hayward, 2 How. 508; Green v. Biddle, 8 Wheat. 1; Planter's Bank v. Sharp, 6 How. 301; Bronson v. Kinzie, 1 How. 311; Edwards v. Kearzey, 96 U. S. 595.
The landlord's lien was waived by the taking of a note for the rent: Conover v. Warren, 1 Gilm. 500; Trustees v. Wright, 11 Ill. 605; Richards v. Leaming, 27 Ill. 432; Cowl v. Varnum, 37 Ill. 181; Boynton v. Champlin, 42 Ill. 65; Crockey v. Corey, 48 Ill. 444; Warner v. Scott, 63 Ill. 372; Kirkham v. Boston, 67 Ill. 603; Andrus v. Coleman, 82 Ill. 26; Kinzey v. Thomas, 28 Ill. 504; Gardner v. Hall, 29 Ill. 278.
This suit was commenced in the Circuit Court of Grundy county on June 19, A. D. 1879, by appellee against appellant and one C. W. Card, in an action of trespass setting the damages at $1,500.
Prior to the trial of the cause, the suit was dismissed as to Card, he being appellant's bailiff in making the distress complained of. On the 2d day of April, A. D. 1881, the venue was changed to the Circuit Court of Livingston county. The trial of the cause took place on the 20th Oct., 1881, being tried by the court, a jury being waived.
The facts in the case as appears from the bill of exceptions are substantially as follows: January 6, 1876, Martin Hynds leased to appellee, Daniel Williams, a farm in Grundy county, for the term of six years, from March 1, 1876, to March 1, 1882, in consideration of the sum of $4,200, to be paid by said Williams in six equal payments of $700 each, the first payment becoming due August 1, 1877, and one each year thereafter until August 1, 1882, when the last payment became due. A lease was executed by said parties and Daniel Williams, as principal, and Mary Williams, as security, also executed and delivered to said Hynds six promissory notes of $700 each, payable according to the above terms of payment, to said Hynds, or order, and bearing interest after maturity at the rate of ten per cent. per annum. Appellee took possession of said premises under lease, Nov. 3, 1876; Martin Hynds sold said premises to Mary C. Adams, and conveyed the same to her, and at the same time assigned and delivered said notes to her. May 17, 1878, said Mary C. Adams sold and conveyed said premises to appellant, John Cunnea, and at the same time assigned to him said lease assigning all the rents, issues and profits, and indorsed and delivered to him the four of the said notes last falling due. On July 23, 1878, Williams paid the note due August 1st thereafter, by giving to Mrs. Adams, who then held and owned said note, a new note payable December 1, 1878, and secured the same by chattel mortgage upon the growing crop of corn on said premises. November 1, 1878, appellant, as landlord, issued his distress warrant against appellee for the payment of the note due August 1, 1879, which warrant was executed by one C. W. Card, as bailiff, November 5, 1878, by taking possession of all the corn and stalks on the farm. Appellee commenced this action of trespass for the wrongful taking and conversion of said property by appellant.
Upon the hearing the appellant was found guilty, and damages assessed against him in the sum of $500, and judgment rendered thereon, from which an appeal is taken to this court. After the distress warrant was levied and the corn taken into possession of the bailiff, he proceeded to gather it with the assistance of appellee. The corn, after the distress warrant was levied, was kept by appellant until after his rents became due, and then sold by him at thirty-five cents per bushel, it being worth only twenty-six cents per bushel at the time of the levy. There was of the corn 1,705 bushels and 30 pounds. The cost to appellant in gathering and hauling it to market was $193.47.
It is assigned for error on the part of appellant, that the court erred in overruling his demurrer to appellee's replication to appellant's 2d, 3d, 4th, 5th, 7th, 8th and 11th pleas, and carrying the demurrer back and sustaining it to those pleas, and in striking appellant's 9th and 10th amended pleas from the files, and in the court finding contrary to the law and the evidence, and overruling his motion for a new trial. It will be seen by the above statement that the rent was due Aug. 1, 1879, and the distraint was made Nov. 5, 1878, and prima facie there was no right to distrain, but the different pleas attempt to justify the taking of the corn under the provisions of Chap. 80, Sec. 34 of the Statute, R. S. 1880, page 676 of the Landlord and Tenant Act, which provides, that if “any tenant, without the consent of the landlord, sell or remove, or permit to be removed or be about to sell and remove, or permit to be removed from the demised premises, such part or portion of the crops raised thereon, as shall endanger the lien of the landlord upon such crops for the rent agreed to be paid, it shall and may be lawful for the landlord to institute proceedings by distress before the rent is due, as is now provided by law in case of the removal of the tenant from the demised premises; and thereafter the proceedings shall be conducted in the same manner as is now provided by law in ordinary cases of distress where the rent is due and unpaid.”
This act went into force July 1st, A. D. 1877. Appellee claims in argument that only the 2d, 3d, 4th and 5th pleas aver the demise was made May 17, 1878, after the time the act went into force. Appellee claims as to those pleas, that the replication to them denies that the demise was made May 17, 1878, and denies that there was rent due and in arrear Nov. 1, 1878, or any rent to become due which would become a lien on the crops growing or grown upon the said premises. A second replication to 2d, 3d, 4th, 5th, 7th, 8th and 11th pleas filed, averred that appellant did not demise the premises on the 17th May, 1878, but set up the facts of the lease as above given, and it is claimed that the demurrer to the replication to the 2d, 3d, 4th and 5th pleas, admitted the allegations of the replication to be true, and hence, there was no statute in force at the time like the one quoted under which the distress was attempted to be justified, and that the statute, if the Legislature intended to apply it to leases made prior to its passage, was unconstitutional and void.
We think this position as to the last mentioned pleas is not tenable, for the reason that it was improper to raise an issue on the date averred in the replication in which was set up a new date.
It was not competent, except in cases of confession and avoidance, to do more in the replication than to take issue on the allegations of the pleas as to the date of the lease; and the averment that there was no rent due, or to become due, which was a lien on the crops in question, was not a sufficient averment. The question as to whether the rent was a lien or not, was one of law, and in order to raise it, facts must be averred instead of conclusions. We think that the pleas were good. The court on the hearing of the demurrer, had no concern as to whether appellant could prove their allegations on the trial. The sustaining of the demurrer to them was error. We deem it unnecessary to pass...
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