Purvis v. Shuman

• Decision Date: 08 June 1916
• Docket Number: No. 10536.,10536.
• Citation: 112 N.E. 679,273 Ill. 286
• Parties: PURVIS v. SHUMAN.
• Court: Illinois Supreme Court

273 Ill. 286

112 N.E. 679

PURVIS

v.SHUMAN.

No. 10536.

Supreme Court of Illinois.

April 20, 1916.

Rehearing Denied June 8, 1916.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Moultrie County; Franklin H. Boggs, Judge.

Action by Lawrence Purvis against Irving Shuman. A judgment for defendant was affirmed on appeal to the Appellate Court, and plaintiff appeals on certificate of importance. Reversed and remanded.

Frank M. Harbaugh, of Sullivan, and Edward C. Craig, and Donald B. Craig, both of Mattoon (Jas. W. Craig, of Mattoon, of counsel), for appellant.

Whitaker, Ward & Pugh, of Shelbyville, Thompson & McLaughlin, of Sullivan, and Simmons & Irving, of Chicago, for appellee.

CARTWRIGHT, J.

The appellant, Lawrence Purvis, filed his declaration in this case in the circuit court of Moultrie county against the appellee, Irving Shuman, grantee of the reversion in premises leased to the appellant by Sam T. Miller, to recover from the appellee 75 per cent. of the cost of improvements placed on the leased premises by virtue of a covenant of the lessor contained in the lease. The court sustained a demurrer to the declaration and rendered judgment against the appellant for costs. An appeal was taken to the Appellate Court for the Third District, where the judgment was affirmed and a certificate of importance and a further appeal were allowed.

The facts alleged in the declaration and admitted by the demurrer are as follows: On April 9, 1907, Sam T. Miller, owner of the north half of the northwest quarter of the southeast quarter of section 1, town 13, range 5, in Moultrie county, leased the same to the plaintiff from March 1, 1907, to March 1, 1912, at a rental of $200 per annum. It was agreed that the plaintiff should not sublet the premises without the consent of the lessor, and the lease contained the following provisions:

‘It is further mutually agreed between the parties hereto that the party of the second part has leased said premises as an amusement park, and that the party of the second part is entitled to all rents and privileges that he may be able to receive from the parties desiring to use the same for a ball park, race meetings or other similar forms of amusement. It is further agreed between the parties hereto that any and all improvements that may be put on said premises by the party of the second part for the purpose of carrying out the provisions of this lease will at the expiration of this lease be purchased by the party of the first part at seventyfive per cent. of the original cost of said improvements. * * * The covenants herein shall extend to and be binding upon the heirs, executors and administrators of the parties to this lease.’

The lease was recorded, and the plaintiff took possession and constructed the improvements for the purpose of carrying out the provisions of the lease that the premises should be used for an amusement park, and the improvements cost $8,255.95. During the term, on August 10, 1909, Sam T. Miller, the lessor, having platted the premises into lots, sold and conveyed a portion to the defendant and another portion to the defendant and D. L. Enslow, and on January 3, 1910, Enslow conveyed all his interest to the defendant. On March 1, 1912, the defendant notified the plaintiff that he was the owner of the premises and requested the plaintiff to remove the improvements. The plaintiff refused to comply with the request, and demanded from the defendant 75 per cent. of the original cost of the improvements, which the defendant refused to pay. Afterward the defendant obtained a judgment against Sam T. Miller, the lessor, caused an execution to be issued and levied upon the improvements as the property of Miller and sold them by virtue of the execution. The Appellate Court was of the opinion that, the improvements not being in existence at the time the lease was executed, the covenant of Miller to pay at the termination of the lease 75 per cent. of their original cost was personal and collateral to the demise, and did not run with the land so as to bind the grantee of the lessor, under the decision in Spencer's Case, 5 Coke, 16 (1 Smith's L. C. 145) and subsequent cases following that one. The decision of this case will turn upon the question whether that view of the law was correct.

The statutory provision giving lessees a right of action against grantees of the reversion is section 15 of chapter 80 of the Revised Statutes of 1874, relating to landlord and tenant, and is as follows:

‘The lessees of any lands, their assigns or personal representatives, shall have the same remedy, by action or otherwise, against the lessor, his grantees, assignees or his or their representatives, for the breach of any agreement in such lease, as such lessee might have had against his immediate lessor: Provided, this section shall have no application to the covenants against incumbrances, or relating to the title or possession of the premises demised.’

The previous statute, included among those adopted as the law of this state, was enacted in the thirty-second year of the reign of Henry VIII (St. 32 Henry VIII, c. 34). The reason for the enactment of that statute was that the monasteries and other religious and ecclesiastical houses had been dissolved and their lands had come to the possession of the king, who distributed them to the lords. Much of the lands was subject to leases when they fell into the hands of the king, and the monks had inserted in the leases various covenants and provisions for their benefit and advantage. At the common law no person could take the benefit of any covenant or condition except such as were parties or privies thereto, so that the grantees of the king could not enforce the covenants in the leases. These things were recited in the preamble, and the statute was enacted to give to the grantees of the king the same remedies that the original lessors might have had. Section 1 of the act provided that the grantees of the king should have the same advantages, benefits, and remedies as the lessors might have had. Section 2 was added, purporting to create rights in lessees which they already had so far as covenants running with the land were concerned, probably to give the statute the appearance of providing for the rights of tenants as well as of landlords. 2 Sugden on Vendors and Purchasers, 247. The benefit of covenants relating to the land entered into by the lessor passed to the assignee of the lessee, for though no contract had been made between the lessor and assignee individually, yet as the latter became the tenant of the former, a privity of estate arose between them, by virtue of which the covenants running with the land entered into when the lease was granted became mutually binding and might be enforced by the one against the other. Williams on Real Property, 397. At the common law, upon the grant of a reversion an attornment was necessary by which the tenant agreed to become the tenant of the new lord, since the lord could not grant the services of his tenant by deed without his consent, the relation between landlord and tenant and the services of the tenant being personal. Sheppard's Touchstone, 255. That section provided that all lessees should have the same rights and remedies against the grantees of the reversion as they might have had against the lessors, and section 15 of our statute is a substantial re-enactment of section 2 of the former statute.

It is earnestly contended that our statute is broader in its terms than section 2 of the statute of Henry VIII, and in one respect it seems to have been so regarded by this court. Fisher v. Deering, 60 Ill. 114. Although the statute of Henry VIII purported to give to grantees of the reversion a right of entry for nonpayment of rent and the remedies which the lessors might have had or enjoyed, it was still held that the assignee of the reversion could not recover rent until there was an attornment, but afterward could recover in respect to privity of estate and contract. The necessity of an attornment was dispensed with by the act of 4 and 5 Anne, c. 16, in England, but that statute was not one of the statutes adopted by this state, and this court held that an attornment was still necessary to enable the grantee of the reversion to recover rent. In Barnes v. Northern Trust Co., 169 Ill. 112, 48 N. E. 31, the decision in Fisher v. Deering that, even under the statute of Henry VIII an attornment was necessary was stated, and it was held that section 14 of the Landlord and Tenant Act (Hurd's Rev. St. 1913, c. 80) had dispensed with the necessity of an attornment on account of the general language of that section. The language of section 15 is equally general, and purports in general terms to give to the lessee every right of action that he would have had against the lessor, but it is no more general in its terms than the second section of the statute of Henry VIII, and if that statute was limited in its operation to covenants which run with the land and did not include such covenants as are personal and collateral, section 15 must receive the same interpretation and has not enlarged the rights or remedies of lessees.

The construction of the statute of Henry VIII has generally been considered as determined in Spencer's Case, supra, in which Spencer and his wife brought an action of covenant against Clark on a covenant contained in a lease made by the plaintiffs to S., in which S. covenanted to build a brick wall on a part of the land demised. The covenant did not purport to bind the assigns of S., who assigned his term to J., and J. to the defendant. Sir Edward Coke reported seven resolutions of the judges concerning covenants, which of them would run with the land and which of them are collateral and do not go with the land, where the assignee shall be bound without naming him and where not, and where he shall be bound, although he be expressly named and where not. The...