Sugden v. Beasley
| Decision Date | 31 May 1881 |
| Parties | RICHARD SUGDENv.EMILY J. BEASLEY. |
| Court | United States Appellate Court of Illinois |
ERROR to the County Court of Champaign county; the Hon. J. W. LANGLEY, Judge, presiding. Opinion filed June 21, 1881.
Mr. E. L. SWEET for plaintiff in error; cited Miller v. S. M. Co. 79 Ill. 450; Schill v. Reisdorf, 88 Ill. 411; Willenborg v. Murphy, 40 Ill. 46; Arnott v. Freil, 50 Ill. 174; Smith v. Whittaker, 11 Ill. 417; Shaw v. Havekluft, 21 Ill. 127; George v. Bischoff, 68 Ill. 236.
Mr. FRANCIS M. WRIGHT, for defendant in error; that the obligees were required to assign breaches, this being a penal bond, cited Patrick v. Rucker, 19 Ill. 429; Hibbard v. McKindley, 28 Ill. 240.
Each assignment of breaches is regarded as a declaration and should be pleaded to: Burroughs v. Clancey, 53 Ill. 30; Safford v. Miller, 59 Ill. 205.
The crops on the land were personal estate and did not pass to the purchaser under the trust deed: Reed v. Johnson, 14 Ill. 257; Graff v. Fitch, 58 Ill. 373; Thompson v. Wilhite, 81 Ill. 356; Ticknor v. McClelland, 84 Ill. 473; Carpenter v. Jones, 63 Ill. 517.
Annual crops pass only where possession is given: Smith v. Price, 39 Ill. 28.
They do not pass with the land if matured: Powell v. Rich, 41 Ill. 466; Hecht v. Dittman, 13 Chicago Legal News, 127.
The mortgagor is not required to account for rents and profits while in possession: M. V. & W. R'y Co. v. U. S. Ex. Co. 81 Ill. 534; Moore v. Titman, 44 Ill. 358.
Plaintiff in error brought suit upon an appeal bond given in an action of forcible detainer by Thomas C. Beasley, as principal and defendant in error as surety, the latter alone being served with process. Upon trial in the court below, judgment was rendered in favor of the defendant and the plaintiff now brings the cause to this court by writ of error.
The appeal bond upon which the suit is brought, recites a judgment rendered on the 3d day of November, A. D. 1879, against Thomas C. Beasley, Edward Bassett, John W. Miller and Levie Hoover, all of whom except Hoover, had appealed to the circuit court, and is so conditioned that if the said appellants should prosecute their appeal with effect, and should pay all rent then due or that should become due before the final termination of the suit, and all damages the plaintiff might sustain by reason of the withholding of the premises, or by reason of any injury done thereto during such withholding, together with all costs until the recovery of possession in case the judgment should be affirmed or the appeal dismissed, then the said bond to be void, otherwise to remain in full force and effect.
Breaches are assigned upon the several conditions of the bond as follows: (1) That appellants failed to prosecute their appeal with effect, and the same was dismissed at the March term, A. D. 1880, of the circuit court; (2) That a large amount of rent became due the plaintiff before the termination of the suit, which had not been paid; (3) That although said appellants had withheld the possession of the premises from the plaintiff from the 3d day of November, A. D. 1879, to the 19th day of January, A. D. 1880, yet they had not paid the damages occasioned thereby, nor for the injury done said premises during that time, nor the costs of said suit, although during that time said premises were greatly despoiled of a large amount of herbage, grain and corn, grown and then standing thereon.
The defendant filed several pleas, only two of which need now be mentioned. The first is a plea of non est factum, and goes to the whole declaration. The fifth is a plea of accord and satisfaction as to so much of the declaration as charges Thomas C. Beasley with the withholding of said premises from the plaintiff, and alleges that immediately after the execution of said bond, said Beasley turned over the possession to plaintiff, who accepted the same in satisfaction and in full discharge of the condition of the bond, requiring restitution. Issues were joined and a trial had upon the declaration and these two pleas.
The fifth plea being an affirmative one, the burden of proof upon that issue was upon the defendant. The plea of non est factum only put in issue the execution of the bond. Rudesill v. Jefferson County, 85 Ill. 446; Smith v. Lozano, 1 Bradwell, 171. All the plaintiff had to do in the first instance, therefore, was to produce the bond and prove the amount of his damages, as charged in the declaration. All other material matters charged in the declaration were admitted upon the record, and with these the jury had nothing to do. That which is admitted by the pleadings constitutes no part of the issues to be tried by the jury, but the court should treat the same as true. No evidence need be produced to prove it, nor can the party making the admission be heard to controvert it; nor can the jury be directed to look into the pleadings to find out what is admitted, but the court should take the admission as true, and submit only disputed matters of fact to the jury. It being alleged in the declaration that the appeal had been dismissed, and this fact not being denied, it was error in the court below to instruct the jury, as was done, that they should find for the defendant unless it had been shown by the evidence that the appeal had been disposed of in the circuit court adversely to said Thomas C. Beasley. It was also error to refuse some, and to modify others of the plaintiff's instructions in this particular.
Defendant in error also assigns cross-errors by leave of the court. The court below seems to have treated the case as if all matters alleged in the several breaches were sufficiently answered by the plea of non est factum, which we have seen is not the case.
No injury, therefore, has as yet resulted to defendant from this ruling of the court, for she had the full benefit of her pleas upon the trial. But as we hold the allegations contained in the several assignments of breaches to be admitted unless specially denied, the defendant may not have the same advantage upon the next trial.
We will therefore consider these pleas.
Each assignment of breaches is regarded as a declaration, and is to be pleaded to as such. Safford v. Miller, 59 Ill. 205; Burroughs v. Clancy, 53 Ill. 31. It is not necessary to repeat the substance of the bond as an inducement to every breach, but when the substance of it is once set out, that is a sufficient inducement upon which to assign several breaches. A single plea of non est factum, or any other plea relating to the bond itself, will therefore be an answer to the whole declaration. But the defendant may deny or confess and avoid in several pleas the facts set up in several assignments of breaches, and in this manner form an issue or issues upon each, as if there were so many separate counts in the declaration.
The second plea was too general in its terms, and we think the demurrer was properly sustained to it. Mix v. The People, etc., 86 Ill. 329. The third plea goes only to that assignment of breaches which claims rent to be due and unpaid, and denies that any rent became due the plaintiff as alleged. This, we think, was a good plea to that assignment, and would have required the plaintiff to prove the relation of landlord and tenant to have been subsisting between himself and some person as his tenant of the land in dispute before he could recover rent eo nomine.
The fourth plea professes to cover so much of the assignment of breaches as claims damages for withholding the premises in the declaration mentioned, and says, actio non, becaus...
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