Mackin v. Haven

• Decision Date: 19 October 1900
• Parties: MACKIN v. HAVEN et al.
• Court: Illinois Supreme Court

187 Ill. 480

58 N.E. 448

MACKIN

v.HAVEN et al.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, First district.

Action by Dwight Haven, trustee, and another, against John Mackin. The appellate court (88 Ill. App. 434) affirmed a judgment of the county court in favor of plaintiffs, and defendant appeals. Affirmed.Arthur Humphrey, for appellant.

Hill, Haven & Hill (William Garnett, Jr., of counsel), for appellees.

This is a suit begun originally before a justice of the peace on March 25, 1897, by the appellees, Dwight Haven, trustee under the last will of Samuel Rush Haven, deceased, and Jane S. Haven, against the appellant, John Mackin, to recover the amount due at that date under a lease and party-wall agreement executed on August 1, 1872, between said Samuel R. Haven, as party of the first part, and Thomas Mackin, now deceased (father of the appellant), as party of the second part. The justice of the peace found in favor of the appellant, and appellees prosecuted an appeal from his judgment to the county court of Cook county, where a trial was had before the court without a jury; the jury having been waived by agreement. The county court rendered a judgment against appellant and in favor of appellees for $167.50 and costs, being for the installment of rent ($150) which fell due August 1, 1896, and legal interest thereon from that date to the date of the trial in the county court. From the judgment of the county court an appeal was prosecuted to the appellate court, where the judgment of the county court was affirmed. The present appeal is prosecuted from the judgment of affirmance so entered by the appellate court. The appellate court has granted a certificate of importance.

Samuel Rush Haven died testate on May 4, 1890, and on June 13, 1890, his will was admitted to probate in the probate court of Cook county. By proceedings had in said probate court, and in a partition suit in the superior court of Cook county to which Thomas Mackin was a party defendant, the title to lot 9, hereinafter named, passed to appellees; and they thereby became vested with all the right, title, interest, and claim of Samuel Rush Haven under the lease hereinafter mentioned. It is conceded by the appellant that, if any recovery at all can be had in this suit, the suit is properly brought by the present appellees as plaintiffs. On August 1, 1872, Samuel Rush Haven was the owner in fee of lot 9 in block 113, School Section addition to Chicago, known as 326 and 328 South Clark street, situated on the west side of that street. Thomas Mackin the father of appellant, was at that date in possession of the north half of lot 10 in said block, known as 330 South Clark street, and lying south of lot 9, under a lease from the board of education of the city of Chicago. Thomas Mackin held lot 10 under the lastnamed lease up to the date of his death, on November 16, 1893. His leasehold interest in lot 10, being for a period of not less than 30 years, was included in the inventory filed in his estate. Thomas Mackin, desiring to use the south wall of the building on Haven's property as the north wall of the building he proposed to erect on the north half of lot 10, entered into the lease or party-wall agreement with Samuel R. Haven which was executed by them, as above set forth, on August 1, 1872.

By the terms of the lease or party-wall agreement, dated August 1, 1872, Haven, as party of the first part thereof, leased to Mackin, as party of the second part thereof, ‘so much of lot No. 9,’ etc., ‘* * * (being about eleven inches front and rear, and extending of that width the full depth of said lot) as lies south of a line through the center of the brick wall which now stands upon said lot 9, and along or near the south line or boundary thereof, together with the right and privilege hereby also granted to said Mackin, his executors, administrators, and assigns, to use the said wall as a party wall in the erection, maintenance, and support of any building or buildings to be erected during the continuance of this lease by said Mackin, his executors, administrators, or assigns, upon the premises next adjoining said lot 9 upon the south, and described as the north half of lot 10 in said block, with the further right to build a continuation of said Haven's south wall to the rear of said lot 9 at his (Mackin's) own expense, and for his own use and benefit, but which may be used by said Haven as a party wall by crediting said Mackin as hereinafter specified; said wall to be constructed of brick. To have and to hold the above-described premises, with the appurtenances, unto the party of the second part, from the first day of August in the year of our Lord 1872 for and during and until the first day of August, A. D. 1902, if the said wall, one-half of which is upon the premises hereby demised, shall stand so long. This lease to be immediately determined by a total destruction of said wall. And the party of the second part, in consideration of the leasing of the premises aforesaid, does covenant and agree with the party of the first part to pay him, as rent for said premises, at the office of said Haven, in Chicago, the sum of $150.00, in advance, on the first day of August of each and every year during the continuance of this lease (beginning with this first day of August, A. D. 1872), as yearly rent therefor.’ The lease or agreement then specifies the deduction or deductions which are to be made in the rent by Haven in case he shall make connections with the wall which may be erected by Mackin. By the terms of the agreement, Mackin is to pay one half of the expense of repairing and keeping the party wall in order, and Haven is to pay the other half. By the terms of the agreement Mackin agrees that he will pay all water rates, taxes, and assessments against the demised premises; and, if he shall neglect to do so, Haven has the right to pay the same, and add the amount of such payment to the rent, and to collect the same by distress or otherwise, as is provided for the collection of the other rents to grow due thereon. By the lease or agreement it is agreed by Mackin, for himself, his heirs, executors, administrators, and assigns, that the rent, and each installment thereof, shall be, and is declared to be, a valid and first lien upon any and all buildings and improvements on the premises, or that may be erected thereon, by Mackin, his heirs, executors, administrators, or assigns. It is also provided therein that, whenever any installment of rent remains unpaid after it becomes due, Haven, his heirs, executors, administrators, etc., may sell at public auction to the highest bidder for cash, after having given a certain notice, the buildings and improvements on said premises, and the interest acquired therein under the lease by Mackin, and may make to the purchaser a bill of sale or deed of the same, and out of the proceeds, after paying expenses, retain the rent due on the lease. Mackin covenants that at the expiration of the lease he will yield up the demised premises to Haven in as good condition as when the same were entered, loss by fire, etc., excepted. The lease or agreement also contains provisions that if the rent shall be unpaid, or if default shall be made in any of the covenants of the lease to be kept by Mackin, his executors, administrators, or assigns, Haven, or his heirs, executors, administrators, etc., may declare the term ended, and enter into the demised premises and remove Mackin, and repossess said premises, etc. It is recited in the agreement that Mackin means and intends thereby to give Haven, his heirs, executors,administrators, etc., a valid and first lien upon all the goods, chattels, or other property belonging to Mackin, as security to the payment of the rent, and if at any time the term is ended at the election of Haven or his heirs, etc., Mackin covenants and agrees to surrender and deliver up the premises peaceably to Haven, his heirs, executors, administrators, etc. It is also provided that if Mackin, his executors, administrators, or assigns, shall remain in possession after notice of default, or after the end of the lease, he is to be deemed guilty of a forcible detainer under the statute, etc. This lease or agreement, which is signed by Haven and Mackin under their hands and seals, contains the following provision: ‘It is further understood and agreed that all the conditions and covenants contained in this lease shall be binding upon the heirs, executors, administrators, and assigns of the parties to these presents, respectively.’ Thomas Mackin thereafter took possession of the demised premises, and used the south half of the wall as a party wall; the same forming the north wall of the building erected by him on the north half of lot 10. Thomas Mackin continued to use the same until the date of his death. Thereafter appellant, the son of Thomas Mackin, continued to use the same. The building upon the north half of lot 10, and the leasehold interest therein owned by Thomas Mackin, passed to appellant, as one of the heirs at law of Thomas Mackin.

Thomas Mackin died November 16, 1893, leaving his widow, Martha Mackin, and two children, surviving him, as his only heirs at law, to wit, his son, the appellant herein, John Mackin, and his daughter, Alice Philbin, the wife of John J. Philbin. Letters of administration were issued upon his estate to John Mackin, appellant, and J. J. Philbin, Jr., on January 30, 1894. Although the two years for the settlement of the estate expired on January 30, 1896, the estate was not finally declared settleduntil November 13, 1896. August 1, 1895, there were a settlement and a division of the estate between the heirs at law of Thomas Mackin, by the terms of which appellant received real estate conceded to be worth over $100,000. Included in the property received by appellant was the leasehold interest in the north half of lot 10. Appellant thereupon...