Ft. Dearborn Lodge, I.O.O.F. v. Kline

• Decision Date: 14 November 1885
• Citation: 3 N.E. 272,115 Ill. 177
• Parties: FT. DEARBORN LODGE, I. O. O. F., v. KLINE and others.
• Court: Illinois Supreme Court

115 Ill. 177

3 N.E. 272

FT. DEARBORN LODGE, I. O. O. F.,

v.KLINE and others.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from First district.

Barnum, Rubens & Ames, and John McGaffey, for appellees.

Abbott, Oliver & Showalter, for appellant.

MULKEY, C. J.

On the thirty-first of December, 1881, the appellees commenced an action of trespass quare clausum fregit, in the superior court of Cook county against the appellant, and others acting as its servants, the declaration being in the usual form. The suit was subsequently dismissed as to all the defendants but the appellant. Issues were joined on pleas of ‘not guilty’ and of ‘leave and license,’ but they are unimportant so far as the questions to be discussed are concerned. The defendant also pleaded specially that the locus in quo was the soil and freehold of the defendant, and that it, together with its servants, peaceably entered the same for the purpose of building a partition wall, etc. A demurrer having been overruled to this plea, the plaintiffs replied, in legal effect, that at the time of the alleged trespass the plaintiffs were in the lawful possession of the premises as tenants of the defendant; upon which plea issue was joined, and the cause was tried before the court and a jury, resulting in a verdict and judgment in favor of the plaintiffs for $500, which, on appeal, was affirmed by the appellate court for the First district. The case is certified here from the appellate court, and the conclusion to be reached turns upon the correctness of the ruling of the trial court with respect to the plea last above mentioned, which, in technical language, is called a plea of liberum tenementum.

It appears from the record the pleadings were settled by one judge and the cause was tried by another, and that they were not in accord as to the sufficiency of the plea. While the former held it good on demurrer, the latter regarded it as presenting no defense and expressly instructed the jury to that effect. To so instruct was equivalent to striking the plea from the record, which necessarily carried with it the replication thereto and the issue formed thereon. This left before the jury a vast mass of evidence relating to the renting of the premises by the plaintiffs which was not relevant to any issue then before the jury. To have carried out the trial judge's view, the court should also have withdrawn the replication, and all evidence relating thereto, from the consideration of the jury; but this was not done.

We do not think the course adopted was the proper practice. Nor do we agree with counsel for the appellant that where a court has made an order either sustaining or overruling a demurrer to a pleading, that such order passes beyond the control of the court. On the contrary, whatever may have been the rule on the subject in former times when pleadings were ore tenus, we are of opinion that under the present liberal practice the court has the power, and that it is its duty, at any time before trial, when it becomes satisfied that an erroneous ruling has been made with respect to the sufficiency of a pleading or other similar matter, to promptly set aside the order and correct the error. So, in the present case, when the trial judge became satisfied that the plea in question was bad, he should have withdrawn the case, at least temporarily, from the jury, set the order overruling the demurrer aside, and entered one sustaining the demurrer. The defendant should then have been permitted to stand by the plea or plead over, as he might be advised. The course indicated is much the same as in the case of awarding a repleader. The fact that the order was made by another judge is a matter of no consequence whatever. The power of the trial judge was precisely the same as if he had made the ruling himself. The ruling in either case would be the act of the court.

The real question, however, in the case is, did the court err in holding the plea of liberum tenementum bad, and in withdrawing it from the consideration of the jury? The question involves the doctrine of legal seizin or possession of corporeal hereditaments by one having or claiming an immediate freehold estate therein, a doctrine which lies at the very foundation of the English law of real property, and which is as old as the common law itself. One having such seizin is properly called tenant of the freehold, and many rights and duties, particularly in ancient times, attached to him as such.

We cannot stop to enumerate these rights and duties, which grew out of the feudal system, and which anciently devolved upon the tenant of the freehold. Nor would it be profitable to do so, as they are exhaustively treated in Blackstone, Kent, and other standard authors. Suffice it to say, in general terms, that the evils and abuses that formerly found recognition in the law of real property, as it existed in England, growing out of their feudal origin, have, in the main, long since been abolished in England, and, as to this country, they never had any existence. But, on the other hand, there are many doctrines of the law of real property, including that of seizin, whose origin is referable to the same fruitful source, that are in full force at the present time. Seizin and ownership as to corporeal hereditaments, in the common-law sense of the term, mean practically the same thing. Hence the doctrine is well recognized that but one of two or more persons claiming under adverse titles can have seizin of the same land at the same time. However many claimants, there can be but one seizin. It is to be borne in mind, however, this seizin may be tortious or wrongful as well as lawful. Nevertheless, so long as the seizin continues, whether it be the one or the other, the person having it, for all practical purposes, is, by the common law, regarded as owner according to the title he claims, which cannot be less than a life-estate, and may be an estate in fee, or fee tail, where the latter kind of estate has not been abolished, as it has in this state.

There is a material difference, however, between lawful and unlawful seizin in respect to the manner of acquiring or losing the same, which will more fully appear further on. There is also a difference in respect to the essential elements which enter into these two kinds of seizin. Thus, actual occupancy is essential to a tortious or unlawful seizin, but it is not to a lawful seizin. There is no such thing as a constructive illegal seizin or possession; yet the holder of the legal title to a freehold estate, where the premises are vacant and unoccupied, has a seizin in law as contradistinguished from a seizin in fact. The holder of the paramount title, when occupying the premises, is seized both in law and fact; but one not having such title can only be seized in fact. We desire to emphasize the statement that mere occupancy does not constitute seizin in the legal sense of that term even in the case of a tortious or unlawful seizin. One may be in the occupancy of land as a mere squatter, without any pretense of claim, when, in contemplation of law, even the possession is in another. The term ‘possession,’ though sometimes used in the sense of seizin, does not fully express the technical meaning of that term. Seizin, in fact, includes possession; yet it implies something more. Even the latter term is ambiguous, and much has been said and written, with perhaps not entire success, in attempts to define or explain its true signification as applicable to the law of real property.

It will, however, be sufficiently, accurate for the purposes of the present discussion to define ‘possession,’ in the connection indicated, to be that position or relation which one occupies, with respect to a particular piece of land which gives to him its use and control and excludes all others from a like use or control. If one having exclusive possession in the sense stated, claims to have a freehold interest in the land, he will in law be deemed to be seized of the same according to the title or estate claimed, although the paramount title may be in another. Seizin, then, in a legal sense, means possession with the intention of asserting a claim to a freehold estate in the premises; and by the English common law the ownership of one thus seized of corporeal hereditaments was held co-extensive with his seizin only. Whatever defeated his seizin operated as a discontinuance of his estate. If, therefore, a stranger, having no title whatever, entered upon the lawful owner and expelled him from his own land, with the intention of asserting dominion and proprietorship over it himself, such action on his part was, in technical languate, a disseizin of the owner, the effect of which was not only to discontinue the estate of the latter, but also to confer on the wrong-doer a defeasible estate in fee-simple, which, if not determined by suit or entry within the statute of limitations, would ripen into an absolute inheritance. The owner thus dispossessed might maintain an action of trespass quare clausum fregit for the original trespass; but for the subsequent tortious acts of the wrong-doer in exercising dominion over the premises, trespass would not lie, for the reason the former possession had ceased with his expulsion, and consequently there could be no injury to his possession, for which alone trespass lies. To the student, or even the practitioner or jurist, it is pleasing task to trace the numerous and important legal results which by the common law flow from a case of disseizin, and to note the numerous channels into which they branch out, and the consistency and wonderful harmony that are everywhere to be observed in them. But we cannot stop to consider them here, except so far as may be necessary to a presentation of our views upon the question under consideration. In the case suggested, the owner, upon being ousted or disseized, in addition to his right to maintain trespass...