National Gas & Oil Co. v. Rizer
| Decision Date | 27 January 1959 |
| Docket Number | Gen. No. 47545 |
| Parties | NATIONAL GAS & OIL CO., a corporation, Appellant, v. H. RIZER, Appellee. |
| Court | United States Appellate Court of Illinois |
Koven, Koven, Salzman & Homer, Chicago, for appellant.
Spatuzza, Yedor & Buckley, Chicago, Bernard Yedor, Chicago, of counsel, for appellee.
This is a declaratory judgment suit by a lessee, seeking to have declared void a lease signed by one of two joint tenants. Defendant's motion for summary judgment was sustained and the complaint was dismissed. Plaintiff has appealed.
Plaintiff's complaint alleges that the 'existing controversy concerns the validity of the lease,' which he claims is 'invalid in its entirety,' because defendant alone, of the two joint tenants, executed the lease as lessor.
This claim poses the decisive question in the case. The trial court decided the lease was 'valid, binding and subsisting,' and ordered the dismissal at plaintiff's costs. We think the judgment of dismissal was right.
Defendant and his wife are joint tenants in ownership of the premises, a Chicago gas station. She did not sign the lease, but knew of the transaction and not only did not object but, in a deposition, offered to add her signature. No other facts need be recited.
In support of its theory, plaintiff relies mainly upon Hall v. Boyd, 347 Ill.App. 60, 106 N.E.2d 137 (Fourth Dist.). That was a forcible detainer action, in which plaintiff, sole owner of the premises since his grantor had acquired the interest of all the co-tenants, was seeking to oust from possession a lessee under a lease executed earlier by one of the co-tenants. Plaintiff's title was subject to the lease, and he claimed possession on the ground that since only one co-tenant signed the lease, the lease was invalid and defendant not entitled to possession. The trial court entered judgment for plaintiff for possession, and the Appellate Court affirmed.
The factual situation in the Hall case [347 Ill.App. 60, 106 N.E.2d 139] is clearly different from that in the instant case. The plaintiff Hall in his complaint stood in the shoes of the non-signing co-tenants, and so to that extent co-tenants were complaining, whereas here the lessee only is complaining. The court there said that the 'lease was not effective to bind' the non-signing co-tenants, citing Zeigler v. Brenneman, 237 Ill. 15, 86 N.E. 597, and that because the property involved was not subject to partition, so that the interest of the lessor who signed could be set off, the lease was invalid in its entirety, since it was 'obvious' under the facts there that the non-signing co-tenants were 'prejudiced.'
Plaintiff relies also on Fredrick v. Fredrick, 219 Ill. 568, where, on pages 581, 582, 76 N.E. 856, on pages 860, 861, the Supreme Court decided that devisees of a homestead had no greater rights than the testatrix, who was without power to grant an estate in the co-tenancy to the detriment of her co-tenant. The distinction again is that in the instant case the lessee is questioning the title of his lessor (Barkman v. Barkman, 107 Ill.App. 332, Eagle Brewing Co. v. Netzel, 159 Ill.App. 375) while in the Fredrick case the devisees were, of course, not complaining of the lack of pwer of the testatrix.
Plaintiff also refers us to Fyffe v. Fyffe, 292 Ill.App. 539, 11 N.E.2d 857. There one co-tenant purported to give a lessee exclusive right to drill for oil and gas. Finally, plaintiff cites Finch v. Green, 225 Ill. 304, 80 N.E. 318. There a co-tenant purported to convey a particular part of the estate. In both cases co-tenants and not lessees were complaining, therefore, also, these cases are distinguished on their facts.
No case is cited by the plaintiff in which the lessee of one of two joint tenants succeeded in invalidating a lease in a suit against his lessor, as plaintiff is attempting to do here against the joint tenant who signed the lease. It is this fact that renders applicable the rule stated in Zeigler v. Brenneman, 237 Ill. 15, on page 23, 86 N.E. 597, on page 600, and followed in Swartzbaugh v....
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