Hubbard v. Rogers

• Decision Date: 30 September 1872
• Citation: 64 Ill. 434,1872 WL 8346
• Parties: JULIETTE E. HUBBARDv.GRACE J. ROGERS.
• Court: Illinois Supreme Court

64 Ill. 434

1872 WL 8346 (Ill.)

JULIETTE E. HUBBARD

v.GRACE J. ROGERS.

Supreme Court of Illinois.

September Term, 1872.

WRIT OF ERROR to the Superior Court of Cook county; the Hon. WILLIAM A. PORTER, Judge, presiding. Messrs. ELDRIDGE & TOURTELLOTTE, for the plaintiff in error.

Mr. CONSIDER H. WILLETT, for the defendant in error.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was commenced in replevin, but the property not being obtained on the writ, an appropriate declaration was filed, and the suit progressed as an action of trover.

The principal facts may be briefly stated: The defendant in error rented of the plaintiff in error a certain house, to be used as a boarding house, for the annual rent of $2000, to be paid monthly, in advance, on the fifth day of every month. For the purpose of furnishing the house, Mrs. Rogers borrowed of the plaintiff in error the sum of $400, and it was agreed between the parties it should be added to the amount of the rent, and be re-paid as rent, which would make the monthly payments amount to $200. By the terms of the lease, it was to commence to run on the first day of May, 1869, and continue for the period of one year. The rent for the first month was paid in advance, and the lessee entered into possession of the premises.

The $200 advanced for the first month's rent was immediately returned as a part of the $400 loan, and it is said that it was expended in the purchase of a part of the furniture now in controversy.

The rent for the month of June was not paid, and it soon became apparent that Mrs. Rogers could not pay the rent as it became due. A settlement was had, when Mrs. Hubbard remitted $200 of the rent, and after deducting $300 due for board, Mrs. Rogers executed to her a chattel mortgage on the furniture in the house, for the residue of the rent that was and would become due on the first day of October, 1869. It is not controverted that the indebtedness secured by the chattel mortgage was afterwards fully paid in money, which was a discharge of all rent to that date. The installment of rent due on the fifth of October, for that month, was not paid, and the lessor issued her warrant, and caused it to levied on property on the premises. It was, however, immediately replevied by Mrs. Rogers.

The property now in controversy was seized by virtue of a distress warrant issued by Mrs. Hubbard. The levy was made on the second or third of November. It is quite clear there was no rent due for the month of November at the date of the levy, for by the express terms of the lease, no rent would become due until the fifth day of the month. But there is still a more valid objection. The landlady had previously, by virtue of the power reserved in the lease, elected to terminate the tenancy, and gave the lessee notice to quit the...