South Park Comm'rs v. Gavin

• Decision Date: 31 October 1891
• Citation: 139 Ill. 280,28 N.E. 826
• Parties: SOUTH PARK COMMISSIONERS v. GAVIN.
• Court: Illinois Supreme Court

139 Ill. 280

28 N.E. 826

SOUTH PARK COMMISSIONERS

v.GAVIN.

Supreme Court of Illinois.

Oct. 31, 1891.

Appeal from circuit court, Cook county; S. P. McCONNELL, Judge.

Ejectment by Maria E. Gavin against Thomas Cross and the South Park commissioners. From an order overruling a demurrer to the replication, the South Park commissioners appeal. Affirmed.

H. S. Mecartney, for appellant.

Smith & Harlan, for appellee.

SHOPE, J.

This was an action of ejectment by Maria E. Gavin against Thomas Cross and the South Park commissioners. Declaration in usual form. The South Park commissioners plead the general issue, and by leave filed the following additional plea: That to ‘so much and such part of the declaration,’ etc., ‘as alleges that, at the time of the commencement of this suit, said premises were actually occupied by said defendant, South Park commissioners, the said defendant,’ etc., ‘comes and says that said plaintiff ought not to have or maintain her aforesaid action against this defendant, for that the said South Park commissioners was not in possession of the premises described in the declaration, and of this it puts itself upon the country,’ etc. A demurrer to this plea was overruled, and replication that, before and at the commencement of the suit, the premises were actually occupied, and that the defendant Thomas Cross was in actual occupancy thereof, and that defendant South Park commissioners did, when, etc., and do claim some title or interest in and to said premises, was filed. The defendant commissioners demurred specially to said replication. The only cause assigned, now insisted upon, is as follows: ‘(2) It is not alleged that said premises were in possession of Cross, and that he was in possession under or in privity with said South Park commissioners.’ The demurrer was overruled, and said defendant elected to abide by it. Defendant Cross was defaulted. Jury was waived, and the issues tried by the court by consent. It was stipulated by the parties plaintiff and the South Park commissioners that the plaintiff, at the bringing of this suit, and at the trial, was the owner of the fee-simple title to the tract of land described in the declaration, and that Thomas Cross was at the time of suit brought in the actual physical possession of the premises; the defendant commissioners reserving the right to show that Cross was in possession as the servant and agent of plaintiff, and that he was not in under or in privity with said defendant. The court found plaintiff seised in fee, and that the South Park commissioners claimed title unlawfully, and rendered judgment accordingly, and for costs, and awarded writ of possession. The South Park commissioners alone prosecute this appeal.

Two points are raised and insisted upon for reversal: (1) That the possession of Cross was collusive merely, and obtained by plaintiff, to enable her to bring ejectment, instead of filing a bill to quiet title, or to remove the claim of title of the commissioners, wherein she would have been required to do equity, by repaying them large sums of money advanced by them for taxes, penalties, and costs, etc. (2) The overruling of the demurrer to the replication to defendant's special plea.

In respect of the first point, it may be said that, if the question of the fraudulent collusion insisted upon properly arose under the issues made, the finding of the trial court is sustained by the evidence. While there are circumstances shown that raise an apparently well-grounded suspicion that Cross really entered into possession at the suggestion and for the benefit of the plaintiff, and really under her title, after her purchase in of the outstanding Ogden title, the evidence flatly contradicts that theory, and we are satisfied, upon the whole evidence, with the finding of the trial court, which was to the effect that Cross' possession was adverse to the plaintiff, and wrongful.

2. The second point presents a question not heretofore passed upon by this court, nor are we referred to adjudications elsewhere, where the practice has been settled, under statutes similar to our own. The question, waiving for the present the manner in which it is raised, is whether, where ejectment is brought against one in actual occupancy of the land, others not in possession, but claiming title, not in privity with the terre-tenant, can be joined as co-defendants. By statute, the common-law action of ejectment is retained, and may ‘be brought in the cases and manner heretofore accustomed,’ subject to the provisions in the act contained, and may also be brought in the cases where the writ of right would lie at common law. Without discussion of the reasons, it may be conceded that at common law the action was to be brought only against the tenant in possession, unless brought against the casual ejector, in which case, to authorize a recovery by the plaintiff, notice was required to be given the tenant in possession, if there was one. Bl. Comm. p. 133, c. 1. And also, in cases where writ of right was brought, the suit must be against the tenant of the freehold demanded. In neither case could persons claiming title through independent and distinct sources be joined as defendants, and, if they were, the misjoinder could be pleaded in abatement. Bl. Comm. supra; Goodright v. Rich, 7 Term R. 327; Owen v. Fowler, 24 Cal. 192;Philbrick v. Goodwin, 7 Blackf. 18;Green v. Liter, 8 Cranch, 229. Section 4, c. 36, Rev. St. 1845, provided: ‘If the premises against which the action is brought are actually occupied by any person, such actual occupant shall be named defendant in the declaration; if they are not so occupied, the action shall be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit.’ In Hanson v. Armstrong, 22 Ill. 442, after quoting the foregoing section of the statute, it is said: ‘By the provisions of this section, the action of ejectment can only be brought against the person in possession of the premises, if they are occupied, or against a person claiming title, etc., when out of possession, and the premises are vacant and unoccupied. When occupied, persons not in possession cannot be made defendants to the action.’ And, after holding that a judgment against a person in possession bound, not only such person, but all persons in privity of estate or possession with him, it is said: ‘And if there is no privity between those in and those out of possession, joining them will involve the necessity of trying two or more separate, distinct titles and causes of action in one suit. This was not the practice before, nor is it since, the adoption of this statute.’ It is clear that the practice in the respect indicated was not changed, by the statute of 1845, from what it was at common law. By the subsequent cases of Oetgen v. Ross, 47 Ill. 146, and Lowe v. Emerson, 48 Ill. 160, the doctrine pronounced in Hanson v. Armstrong, supra, ‘that, when a recovery is had against a tenant, the landlord is bound by it,’ was limited, in effect, to landlords who had notice of the pendency of the suit against the tenant. It is said in the cases last cited, ‘where a landlord has been notified by his tenant or otherwise of the pendency of the suit, and has an opportunity to defend, he must be held to be concluded by a judgment for the plaintiff, and liable to be evicted, if the tenant has surrendered possession to him, although the judgment may have been only against the tenant in...