Fabri v. Bryan

• Decision Date: 30 September 1875
• Citation: 1875 WL 8728,80 Ill. 182
• Parties: CHARLES FABRIv.THOMAS B. BRYAN et al.
• Court: Illinois Supreme Court

80 Ill. 182

1875 WL 8728 (Ill.)

CHARLES FABRI

v.THOMAS B. BRYAN et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Messrs. HERVEY, ANTHONY & GALT, for the appellant.

Messrs. WILKINSON & WHITNEY, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant brought an action of trespass quare clausum fregit, against appellees, for an entry into a close in the occupancy of appellant, and for removing his goods and demolishing the building. Appellees pleaded the general issue, and justified under a license and authority contained in the lease of the premises from appellee Bryan to appellant. On a trial before the court and a jury, a verdict was returned in favor of defendants. A motion for a new trial was entered, but overruled by the court, and a judgment rendered on the finding, and plaintiff appeals.

The first question presented is, whether the license contained in the lease, for the landlord, his agent, attorney or assigns, to enter into possession, with or without process of law, and expel and remove the tenant or any other person occupying the premises, and to use such force as might be necessary in so doing, and to regain and repossess the premises, in case Fabri held over, authorized the acts of appellees. It is not pretended that Fabri surrendered possession at the expiration of the term, or that he had paid rent for a considerable time previously. He was notified to quit, but declined to do so, and his chattels were then removed from the building.

At the common law, whenever a right of entry existed, the person disseized might lawfully regain possession by force. 1 Chitty's Prac. 646. But if, in doing so, he committed a breach of the peace, he was liable criminally. This rule of law was changed by the enactment of our statute giving the action of forcible entry and detainer, which gives a civil remedy to regain possession; and that statute took away the right to make entry by force from the landlord or person whose possession had been invaded; but in the cases of Ambrose v. Root, 11 Ill. 497, and Page v. Du Puy, 40 ib. 506, it was held, that, where the lease contained a provision similar to this, and the landlord entered and removed the tenant therefrom, using no unnecessary force for the purpose, the contract was lawful, and did not contravene the forcible entry and detainer law, and the tenant could not recover. Those cases...