Gartside v. Outley

• Decision Date: 31 January 1871
• Citation: 11 Am.Rep. 59,1871 WL 7904,58 Ill. 210
• Parties: JOSEPH GARTSIDE et al.v.JOHN J. OUTLEY et al.
• Court: Illinois Supreme Court

58 Ill. 210

1871 WL 7904 (Ill.)

11 Am.Rep. 59

JOSEPH GARTSIDE et al.

v.JOHN J. OUTLEY et al.

Supreme Court of Illinois.

January Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The reason urged by appellees' counsel, why the sale under the decree of the Circuit Court of the United States, was void as to persons not parties to the suit, was, that the sale was at a different time, and upon different notices from that provided for in the deed of trust. All other facts necessary to an understanding of the decision are stated in the opinion.

Messrs. WILEY & PARKER, and Mr. W. H. UNDERWOOD, for the appellants.

Mr. GUSTAVUS KŒRNER, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This is an action of ejectment, brought by the appellees to recover the possession of certain coal lands described in the declaration. They claim to be assignees of John A. Twiss, and seek to obtain possession under a lease formerly executed to him by the railroad company.

On the 9th day of May, 1856, the Belleville & Illinoistown Railroad Company executed to Twiss a lease, or grant, of the lands in controversy, for an indefinite period, with leave and permission to take, under certain conditions specified in the grant, all the coal contained in said lands. The lease contained mutual covenants, and also a provision of forfeiture in case of non-compliance on the part of the lessee.

In March, 1853, the Belleville & Illinoistown Railroad Company executed to Marshall O. Roberts and others, a deed of trust upon all the property of the company, including the lands leased to Twiss, to secure the payment of the first mortgage bonds issued by the company.

In May, 1855, the railroad company executed to John Wilkinson another deed of trust on the same property, to secure the second mortgage bonds issued by the company.

These several conveyances were placed on record in the proper office, and whatever interest the lessee or his assignees acquired under the lease and the several assignments, were taken with notice of the prior rights of the mortgagees.

In October, 1856, the Belleville & Illinoistown Railroad Company, and the Terre Haute, Alton & St. Louis Railroad Company, were consolidated under the name of the latter company, the consolidated company succeeding to all the property and franchises, and assuming all the obligations of the former companies.

At a subsequent period, the consolidated company having failed to pay the interest as it became due on the bonds secured by the deeds of trust of 1853 and 1855, the road, together with all the property of the company, was surrendered to William D. Griswold for the benefit of the trustees. The surrender took place in the early part of 1860, and from that time on Griswold continued to operate the road for the benefit of the trustees, until 1862, when the deeds of trust were foreclosed in the United States Court for the Southern District of Illinois, and a sale of the mortgaged property was had in pursuance of the decree of that court. Subsequently the purchasers at that sale were, by a special act of the legislature, incorporated under the name of the St. Louis, Alton & Terre Haute Railroad Company, which company now holds the fee simple title to the mines in controversy.

It will be borne in mind that at the date the present owners of the land became the purchasers, at the sale under the decree of the circuit court of the United States, neither Twiss nor any of his assignees were in possession of the premises. The lease and the several assignments, however, were of record in the proper office, and to that extent, but no farther, they had notice of the rights of the lessee and of the assignees, whatever they might be. Previous to that sale, the lease had been declared forfeited by Griswold, acting in behalf of the trustees, either lawfully or unlawfully, and possession had been taken, and a new tenant of the company placed in charge.

It is a controverted fact in the case, whether the lease had been rightfully declared forfeited for non-compliance with its terms by the lessee or the assignees, prior to the surrender in February, 1860. The right of Twiss to make the surrender is also questioned, and it is insisted that it was made for a fraudulent purpose, and through the corrupt use of money.

We are not inclined to attach much importance to these controverted facts, and for that reason we shall not inquire whether the lease was in fact forfeited for non-compliance, or whether Twiss had any lawful authority to make a surrender of the mines, or what motives may have influenced his mind in that regard.

In the view that we have taken of the case, there is one question that is conclusive of the rights of the appellees under the lease. The lease granted to Twiss was for no definite period, but was to run so long as there was coal to mine. The only limit to its duration was in the clause which provided for a forfeiture in case of non-compliance with its terms, if we except the further fact that it would expire by its own limitation when the coal was exhausted.

It may be assumed as an admitted fact that Griswold, after he took possession of the property of the company, in behalf of the trustees under the mortgage, did receive bank rents of the lessee in possession. It is not doubted that the lease, being subsequent to the mortgage, could have no force as against the rights of the mortgagees.

It is insisted, however, that inasmuch as Griswold, acting in behalf of the trustees, after entry for non-payment of the mortgage indebtedness, did receive bank rents of the lessee in possession, that fact would set up the lease as against the mortgagees, and those claiming under them, for the entire period which the lease had to run. This is the controlling question in the case.

It is in the power of the...