Eichorn v. Peterson

• Court: Appellate Court of Illinois
• Writing for the Court: LACEY, P. J.
• Citation: Eichorn v. Peterson, 16 Ill.App. 601, 16 Bradw. 601 (Ill. App. 1885)
• Decision Date: 31 May 1885
• Parties: PETER EICHORN, SR.v.THEODORE H. PETERSON ET AL.

16 Ill.App. 601

16 Bradw. 601

PETER EICHORN, SR.

v.THEODORE H. PETERSON ET AL.

Appellate Court of Illinois, Second District.

May Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. JOHN BURNS, Judge, presiding. Opinion filed August 7, 1885.

Messrs. WORTHINGTON & PAGE, for appellant; cited Finney v. Cist, 34 Mo. 305; Ridgeley v. Stillwell, 28 Mo. 400; Hunter v. Silvers, 15 Ill. 176.

Mr. I. C. EDWARDS and Mr. GEORGE B. FOSTER, for appellees; that the acceptance of rent from an assignee or purchaser of the lessee will preclude the lessor from insisting upon a forfeiture on the ground the assignment was made without his written assent, as provided in the lease, cited Webster v. Nichols, 104 Ill. 160; Ireland v. Nichols, 46 Ill. 413; Shattuck v. Lovejoy, 8 Gray, 204.

A covenant to renew runs with the land: Piggott v. Mason, 1 Paige, 412; Wood's Landlord and Tenant, 515-675; Wilkinson v. Pettit, 47 Barb. 230; Newman v. Orpon, 4 Wis. 335.

There is no legal distinction between the character of a covenant to renew, and a covenant providing for an optional extension of the term of the lease; both run with the land, and all covenants in a lease that run with the land, pass by an assignment to the assignee, and may be enforced by him: Wood's Landlord and Tenant, pp. 512-515; Wilkinson v. Pettit, 47 Barb. 230.

LACEY, P. J.

This was an action in forcible detainer by appellant against appellees, to recover possession of a brick building, cellar and yard on lot 1 B 5, in the original plat of the city of Peoria. The original lease was by appellant to James Gillig, and ran from 7th of August, 1879, to 1st of August, 1884, at a rental of $40 per month, with a covenant against assignment, and with a provision that Gillig “should have the privilege to a further lease of five years after the expiration of this term.” Gillig assigned the lease to Gipp & Co., and the latter to appellee, with the assent of the appellant to the assignments. The appellee was successful in the court below. The condition in the lease for renewal seems to be an agreement on the part of appellant to execute a new lease to the lessee, and the lease is not in law a ten years' term at the option of the lessee. Such covenant could properly be enforced in a court of equity the same as a contract for conveyance of real estate. It is supposed by appellant's counsel that Hunter v. Silvers, 15 Ill. 176, holds that such an agreement for extension could not be set up as a defense in this action; that the remedy would be in equity to enforce specific performance of the contract. But it will be observed that at the time that case was decided, the statute on the subject of forcible detainer was in force which authorized a recovery in forcible detainer when the time for which the lease was to run by its terms had expired. Sec. 1, Act 1845. The act, however, was amended in 1872, changing the...