Hill v. Reno

• Decision Date: 10 May 1883
• Parties: WILLIAM HILLv.SARAH A. RENO et al.
• Court: Illinois Supreme Court

112 Ill. 154

1883 WL 10388 (Ill.)

54 Am.Rep. 222

WILLIAM HILL

v.SARAH A. RENO et al.

Supreme Court of Illinois.

Filed at Ottawa May 10, 1883.

OPINION TEXT STARTS HERE

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

Messrs. CAMPBELL & CUSTER, for the appellant:

In case a sale is decreed, can it be made of the whole premises subject to the lease, as an entirety, or must the undivided interest of appellees be sold subject to the lease, and the undivided interest of appellant be sold free from the lease? If the assignee of the lease were not connected with the freehold, any one of the tenants in common would be entitled to partition, and the sale would be subject to the unexpired lease. Scoville v. Hilliard, 48 Ill. 453; Fight v. Holt, 80 Id. 84.

On the question of merger of the leasehold interest of appellant in the freehold, counsel cited Richardson v. Hockenhull, 85 Ill. 124; Worcester National Bank v. Cheeney, 87 Id. 602; Campbell v. Carter, 14 Id. 286; Ætna Life Ins. Co. v. Case, 89 Id. 170; Dunphy v. Riddle, 86 Id. 22; James v. Morey, 2 Cow. 246; Freeman v. Paul, 3 Greenlf. 260; Dougherty v. Jack, 5 Watts, 456.

It is only by decreeing the continued existence of the lease as an entirety that equal and exact justice can be done to the parties, and then a sale should be subject to the lease. Would a sale of the premises in any manner be so inequitable, as to appellees, that a court of chancery, administering the statute law on partition, would refuse to decree such sale? To establish the affirmative of this, it must appear not only that appellees would be injured thereby, but that there is something in the law itself, or in the relations of these parties, which prevents or estops appellant from claiming his right to a partition by a sale. Hilliard v. Scoville, 52 Ill. 449.

Messrs. WAITE & CLARKE, and Mr. J. B. SKINNER, for the appellees:

Pending the existence of the lease there could be no partition of the premises by sale, and the dismissal of the bill was correct. Neither party to the lease, nor his assigns, without mutual consent, could do any act, pending the term created by the lease, to impair or extinguish its covenants, or the demised term. When the two estates met in appellant his leasehold interest was pro tanto merged, and became extinct. Carroll v. Ballance, 26 Ill. 9; Lansing v. Pine, 4 Paige, 639.

As to instances where a partition has been refused as inequitable or in contravention of contract, etc., see Shillito v. Pullan, 2 Disney, (Ohio,) 588; Peck v. Cardwell, 2 Beav. 137; Cubbage v. Franklin, 62 Mo. 364; Selden v. Vermilya, 2 Sandf. Ch. 568; Lansing v. Pine, 4 Paige, 639.

The right to partition under the statute is not absolute in all cases, even if the parties have done nothing to bar or waive the right. Hartman v. Hartman, 59 Ill. 103.

While appellees would suffer injustice by decreeing a partition by sale, appellant can suffer none at all by a refusal, for he is already entitled to the exclusive possession of the entire premises until the expiration of the term. On a sale appellant would occupy a better position as a purchaser than appellees, who, on a purchase, would be forced to invest their money in property the market value of which has been impaired, and from which they could get no return for over nine years.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This is an appeal from a decree of the Superior Court of Cook county, dismissing, on the hearing, a bill brought by William Hill, the appellant, against Sarah A. Reno, Eugenia M. Little, Charles A. Reno and Jacob H. Little, the appellees, for the partition of certain real estate in the city of Chicago.

No controverted questions of fact arise upon this record. The undisputed facts of the case are, that Abner R. Reeves, being the owner in fee of the land in controversy, on the 28th of January, 1872, leased the same to William Parmelee for a term of twenty years, from the first day of April then next following, at an annual rent of $2400 for the first five years, to be paid quarterly. At the expiration of the first five years, and at the end of each successive five years, a new valuation or rental of the premises, equal to six per cent of their entire value, was to be fixed by arbitrators, to be chosen as in the lease provided. The lessee was to pay all taxes and assessments, including water rates, and in case of failure to do so, they were made a lien upon the improvements to be erected on the premises by the lessee. The latter covenanted and agreed to erect on the demised premises a building, to be worth at least $10,000, which the lessor agreed to purchase at the end of the term, at a price to be fixed by arbitration. The lessee was authorized to sell or assign his interest in the term, but the assignee was to be bound by all the covenants in the lease. While this lease was in full force, to-wit, on the 31st of October, 1875, the said Abner Reeves died intestate, seized in fee of the reversion in said premises, leaving certain collateral relations as his heirs at law, among whom were his sisters, Sarah A. Reno and Eugenia M. Little, the other appellees being their respective husbands. Having acquired, by purchase, the interests of some of the other heirs in addition to what they had inherited themselves, Mrs. Reno and Mrs. Little, at the time of filing the present bill, respectively owned about one-third of the premises in question, and the residue belonged to the appellant, as hereinafter shown. Parmelee erected the house on the premises, as provided for in the lease, and subsequently sold and transferred the same, together with said lease, to others. In 1880, appellant purchased the leasehold estate, together with the building thereon, and took an assignment of the lease. In the following year he purchased and became assignee of so much of the reversion in said premises as was not owned by appellees, being a fraction over a third interest. After the commencement of the present suit, to-wit, on the 23d of May, 1882, appellant and appellees selected arbitrators, in pursuance of the provisions of the lease, who appraised the rent for five years, from April 1, 1882, to the satisfaction of the parties, respectively, since which time appellant has regularly paid appellees their respective shares of the rent under such appraisement. It was also stipulated between the parties, for the purposes of the hearing, that the premises in question were not susceptible of division, except by means of a sale thereof.

Under the facts stated the simple question presented for determination is, whether the lessee of real estate, the reversion in fee of which is in several tenants in common, can, by purchasing a part of the reversion, and taking an assignment thereof to himself, demand, as a matter of right, a partition in chancery, when such partition will necessarily result in a sale of the premises.

Before giving a direct answer to this question it is proper to determine the exact legal relations of these parties with respect to the property in controversy. Upon the death of Reeves, the lessor, there was, by operation of law, a severance of the estate into as many distinct freeholds as he left heirs succeeding to the property, the share of each depending upon the nearness of the relation he bore to the deceased; but the law did not, and of necessity could not, ascertain or define the boundaries of their respective estates, hence it left them to possess and occupy the premises as a whole, according to their respective interests, until a partition could be effected in some mode authorized by law,--in other words, upon the death of Reeves his heirs at law succeeded to the property in question as tenants in common. The same law, therefore, which clothed them with the title to the property imposed upon them and their assigns all the inconveniences and hardships incident to the ownership of real estate thus held. (Sec. 1, chap. 39, Rev. Stat.; 1 Washburn on Real Prop. (4th ed.) 653.) Perhaps the most important right which the law has annexed to this kind of tenancy is that of partition. In very ancient times this right, at least at law, was confined exclusively to lands held in parcenary, and as parceners always acquired title by inheritance, it followed the right extended only to estates in fee. But the law in this respect was changed by an act of the British parliament, as early as 31 Henry VIII, extending the right of partition to estates of inheritance, in joint tenancy, and in common.

But it is not necessary to go back to the common law, and ancient British statutes made in aid thereof, in support of the right in question in this State, for it is expressly conferred by our own legislature. Section 1, chapter 106, of the Revised Statutes, provides, “that when lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or co-parcenary, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein may compel a partition thereof, by bill in chancery, as heretofore, or by petition in the circuit court of the proper county,” etc. Since the statute gives to every tenant in common of a freehold estate the right to coercive partition by bill in chancery, as the right had existed and been enforced by courts of equity before the passage of the act, it is important to determine, with some particularity, the true limits of chancery jurisdiction over the subject as it exists, independently of statutory provisions. While there is considerable controversy among authors as to when courts of equity first assumed jurisdiction in partition cases, and also as to the true grounds of the jurisdiction, yet all concede that it is of very ancient origin, extending back to the time of Elizabeth, and that no branch of equity jurisdiction is more universally recognized or firmly...