Hayner v. John H. Smith Et Ux.

• Decision Date: 31 January 1872
• Citation: 1872 WL 8205,63 Ill. 430,14 Am.Rep. 124
• Parties: JOHN E. HAYNER et al.v.JOHN H. SMITH et ux.
• Court: Illinois Supreme Court

63 Ill. 430

1872 WL 8205 (Ill.)

14 Am.Rep. 124

JOHN E. HAYNER et al.

v.JOHN H. SMITH et ux.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Alton City Court; the Hon. HENRY S. BAKER, Judge, presiding.

Mr. CHARLES P. WISE, for the appellants.

Mr. WILLIAM S. FIELD, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action originally brought before a justice of the peace in Alton, in the county of Madison, by John H. Smith and Elizabeth Smith, against appellants, to recover the monthly rent claimed to be due on a written lease executed by Elizabeth Smith to appellants.

The judgment by the justice of the peace was in favor of the plaintiffs, from which the defendants appealed to the Alton city court, where a like judgment was rendered. To reverse this judgment the defendants appeal to this court.

The first point made by appellants is, that the lease was executed by Elizabeth Smith to appellants' assignors, and she alone should have brought the action.

This point is well taken, for, although John H. Smith may be the husband of Elizabeth, and was so at the time of executing the lease, he did not sign it, nor was the ownership of the property in him. It was in his wife in her own right. No joint cause of action was established, and there was no undertaking to pay rent to the plaintiffs. There was, therefore, a variance between the cause of action and the evidence. It was payable to Elizabeth Smith in her own right, and she alone must sue. Emerson v. Clayton, 33 Ill. 497; C. B. and Q. R. R. Co. v. Brown, 51 ib. 206.

The very object and purpose of the act of 1861, commonly called the “Married Woman's Act,” would be defeated, should the husband join in an action to recover the property of the wife, for in such case he could control the recovery and deprive the wife of its enjoyment.

This disposes of the case, and must reverse the judgment.

It is suggested that another action may be brought by the proper party, and it is desired this court should state the principles which should govern it.

The defense to the action was that, after the demise, John H. Smith, who it is proved controlled the property for the lessor, took possession of a building on the premises erected by the lessees for a drying house, and used it as a stable, and the entire lot as a cattle yard, without the consent of the lessees; that these acts of the lessor amounted to an eviction, and discharged the lessees from the payment of rent for the unexpired term.

There is a covenant in this lease for the quiet enjoyment of the whole of the demised premises; but if there was not such a covenant, such enjoyment, without any protestation by the landlord, would be implied in the condition on which the tenant is bound to pay the rent. The law implies covenants against such acts of the landlord as destroy the beneficial enjoyment of the premises leased. Wade v. Halligan, 16 Ill. 507.

Forcible expulsion of the tenant is, of course, an eviction, and may terminate the tenancy.

There is much diversity of opinion in the books on the question of a constructive eviction and the consequences flowing from it. Some courts have held that, an actual eviction of the lessee by a title paramount, or by the lessor himself, would alone justify the lessee in resisting the payment of rent, whilst other courts go further, and hold that an eviction from a part of the leased premises by the act of the landlord will justify the tenant in abandoning the premises, and thus discharge himself from liability for rent; and other equally reputable courts have said that any act of the lessor which defeats the enjoyment of the entire property by the lessee, though he may continue in possession of the part not intruded upon by the lessor, would be a bar to the recovery of the rent. It is unnecessary to collate these authorities; it is sufficient to say they are not entirely harmonious.

In a case similar to this in all respects, between the same parties, before this court at a former term, in disposing of the instructions given in that case, the second, given on behalf of the lessees defendants, to this effect, was held to be proper: The principle upon which a tenant is required to pay rent is the beneficial enjoyment of the premises unmolested in any way by the landlord; and if the jury believe from the evidence that the plaintiff took possession of any part of the premises leased by her to the defendants, against their consent, then in law it is an eviction, and releases the defendants from the payment of any more rent, and they will find for the defendants. The fourth and seventh instructions were substantially the same.

In addition to the authorities cited in that case, Briggs v. Hall, 4 Leigh, (Va.) 484, may be referred to. In that case a farm was let for one year, and the landlord entered on a meadow, parcel of the premises, within the year, and cut and carried away the hay without the consent and against the will of the tenant, who, nevertheless, continued to occupy the farm during the...