Doty v. Burdick

• Decision Date: 30 September 1876
• Citation: 1876 WL 10378,83 Ill. 473
• Parties: MARY L. DOTYv.ANDREW J. BURDICK.
• Court: Illinois Supreme Court

83 Ill. 473

1876 WL 10378 (Ill.)

MARY L. DOTY

v.ANDREW J. BURDICK.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Whiteside county; the Hon. WILLIAM W. HEATON, Judge, presiding.

Messrs. KILGOUR & MANAHAN, for the appellant.

Mr. C. L. SHELDON, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant brought an action of forcible entry and detainer in the circuit court of Whiteside county, to the August term, 1874, against appellee, to recover a house and lot in the village of Rock Falls. It appears that one Barnett Doty, in his lifetime, rented the house to one Ford, who, at the expiration of his lease, left the house, and it thereby became vacant. Ford, when he left, gave the key to Sheldon, and appellant entered the house through a window, and thus acquired possession. This was in April, 1874, and appellant, on the 30th of that month, still being in possession, leased the premises to one Simpson for one year, he to pay $72 rent therefor, in installments of $6 for each month, and in advance.

After Simpson went into possession of the house and lot under the written lease from appellant, and whilst it was in full force, he attorned to A. Doty, who claimed to have purchased the property, and took a lease from him. At the end of the second month, Simpson being in arrear one month's rent to appellant, she notified and required him to leave the property, and he began to prepare to do so; and on the 2d day of June, whilst Simpson's wife was packing their goods preparatory to leaving, appellant went into the house, and took with her and placed therein a sewing machine; and afterwards, and on the same day, appellee, claiming to have purchased the premises from A. Doty, came there with a load of household goods to go into the house and take possession. Appellant forbade his entrance, and he found A. Doty and Simpson, who came, finding appellant in the door, she having forbade their entrance, and, as they say, she struck A. Doty with a club, on his attempting to force himself into the house, and she shut and locked the door. They thereupon forced it open, and entered and removed appellant by force, both taking hold of her and putting her out of the house, and removed her sewing machine into the street, and Simpson left, and appellee went into the house and lot, and continued to occupy them.

Thereupon, appellant commenced this proceeding to recover possession. The jury found a verdict for defendant, and the court, after overruling a motion for a new trial, rendered judgment on the verdict, and the plaintiff appeals to this court.

It is urged that the circuit court erred in not granting a new trial, in giving defendant's and in refusing and modifying plaintiff's instructions, together with others embraced in these objections.

This court has ever uniformly held that, in an action of forcible entry and detainer, or in a forcible detainer only, the title to the premises is not involved, nor can it be inquired into on the trial; that possession, and the right to possession, independent of title, are the only questions involved. Hence, appellee had no right to introduce evidence of title on the trial, and even if he had, he could not, as we presume the entire profession are aware, prove it by an unconnected deed. The offer to introduce the deed from A. Doty to appellee would not even tend to prove title, unless connected with paramount source of title, or with a bar of the statute; but a person in the actual, peaceable possession of real estate is presumed to be the owner of the fee until the presumption is rebutted. A person in the full possession, when sued in ejectment, has the right to insist that the plaintiff shall show that he has paramount title before he is required to show in what manner or by what title he holds. He may show a better outstanding title than the plaintiff, and thus defeat a recovery, although he may have no title whatever beyond his mere naked possession, which may have its inception in wrong, or even force, if it is not against the plaintiff. It is one of the most elementary rules of practice that a plaintiff in ejectment must show a valid title, traced to the paramount, or to a source with that of the defendant's title, before he can recover. He, if at all, recovers on the strength and perfection of his own title, and not on the weakness of his adversary's title. The mere production of a deed from one person to another does not tend to prove title. It must appear that the grantor had title, before there is proof. Hence, in a case requiring proof of title, appellee would have failed.

When appellant acquired possession, the house was vacant and unoccupied. There is no evidence that any one had any property of any kind in it; and even if the holding of the key by Sheldon, as the agent of A. Doty, could be held to give the...