Sutherland v. Goodnow

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: Sutherland v. Goodnow, 108 Ill. 528, 1884 WL 9747, 48 Am.Rep. 560 (Ill. 1884)
• Decision Date: 23 January 1884
• Parties: THOMAS J. SUTHERLANDv.WILLIAM D. GOODNOW et al.

108 Ill. 528

1884 WL 9747 (Ill.)

48 Am.Rep. 560

THOMAS J. SUTHERLAND

v.WILLIAM D. GOODNOW et al.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. ROLLIN S. WILLIAMSON Judge, presiding.

Messrs. E. & A. VAN BUREN, and Mr. FRANKLIN P. SIMONS, for the appellant:

The covenant in appellant's lease was not to renew, but to extend the term of that lease. In such case the execution of a new lease was not necessary. A holding over, or notice of his intention to take for another year, was sufficient. Taylor on Landlord and Tenant, (7th ed.) 278, 279; House v. Burr, 24 Barb. 525; Brown v. Parsons, 22 Mich. 24.

A sale of real estate means a transfer of title, and can only be made by a deed duly executed and delivered to the purchaser. Anything else is not a sale, and especially anything that has been proved in this case. 2 Blackstone's Com. 447; Bouvier's Law Dic. title “Sales;” Williams on Real Prop. 127; Wiggins v. Lusk, 12 Ill. 135; Johnson v. Bantock, 38 Id. 114; Blake v. Fash, 44 Id. 302; Skinner et al. v. Baker et al. 79 Id. 496; Houfes v. Schultze, 2 Bradw. 196; Dickerson v. Merriman, 100 Id. 346; Byars et al. v. Spencer et al. 101 Id. 429.

The lease, as a whole, or taken in sections, was not ambiguous, and the court was vested with no right to construe the lease in his own way, and make a new contract for appellant. Coey v. Lehman, 79 Ill. 176; Walker v. Tucker, 70 Id. 527; Canterberry v. Miller, 76 Id. 355; Fitzgerald v. Staples, 88 Id. 236; Corbett v. Underwood, 83 Id. 327; Merchants' Ins. Co. v. Morrison, 62 Id. 242; Stettauer v. Hamlin, 97 Id. 312.

The court erred in instructing the jury that an executory contract to sell was a sale. Rev. Stat. chap. 30, sec. 1; 2 Blackstone's Com. 447.

The making and delivery of the deed can not relate back to the date of the contract to sell, so as to affect injuriously the interests of appellant, a third party, having acquired his rights by contract long previously made. Edwardsville R. R. Co. v. Sawyer, 92 Ill. 377.

Messrs. WARREN & POWERS, for the appellees:

Appellant sold his entire interest in the business and lease, and it containing no prohibitory clause, was assignable. Taylor on Landlord and Tenant, (6th ed.) sec. 426, note 1; 1 Washburn on Real Prop. (14th ed.) 408.

A lease is for only one year where it rests in covenant for the lessor to grant a new lease at the end of the term. Browne on Statute of Frauds, sec. 35.

The appellant could derive no advantage under the clause in the lease giving an option for another year, by reason of the fact that the option was a covenant running with the land, and passed to appellees as assignees of the lease. Taylor on Landlord and Tenant, secs. 262, 332, 437, 445; 1 Washburn on Real Prop. 504; 2 id. 285. Where there are several acts concurrent to make a conveyance or estate, such conveyance or estate, when made or created, shall have relation to, and take effect from, the date of the original act or agreement. Schneider v. Botsch, 90 Ill. 577; 3 Washburn on Real Prop. (14th ed.) 308, and cases cited; Id. 309, 310, and cases cited; Rogers v. Brent, 5 Gilm. 573; Welch v. Dutton, 79 Ill. 465; Kruse v. Wilson, Id. 233; Jayne v. Gregg, 42 Id. 413; Viner's Abridg. title “Relation;” 4 Kent's Com. *451, citing Clary v. Marshall, 5 B. Mon. 266; 5 Cruise on Real Prop. 510, 511.

When a purchaser is let into possession under a contract to convey, as long as he fulfills his part of the contract he is entitled to the free use and enjoyment, and the rents, issues and profits, of the land. And those who derive a privilege from such purchaser are equally protected. Baldwin v. Pool, 74 Ill. 97; Smith v. Price, 42 Id. 399.

Where there is a valid contract for the sale of land, the purchaser is treated as the owner of the land, and may devise it, even before the conveyance is made to him, and it passes by descent as land to his heir. Story's Eq. Jur. (11th ed.) sec. 790; Taylor on Landlord and Tenant, (7th ed.) secs. 25, 636.

The relation of landlord and tenant does not apply to vendor and vendee in possession, when possession is taken by agreement. Sedgwick & Waite on Trial of Title to Land, sec. 316; Taylor on Landlord and Tenant, (7th ed.) secs. 25, 636; Bouvier's Law Dic. (14th ed.) title “Landlord and Tenant,” 4, and cases cited; 1 Washburn on Real Prop. (14th ed.) 469.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action of assumpsit, for use and occupation, by appellant, against appellees. The judgment of the Superior Court was for the defendants, the appellees, and that judgment was, on appeal to the Appellate Court for the First District, affirmed.

The facts material to a comprehension of the rulings now questioned in argument, are: On the 29th day of March, 1880, Granville S. Ingraham and the appellant jointly executed their deed, whereby the former leased to the latter certain premises located in the city of Chicago, from the 1st day of May, 1880, until the end of the 30th day of April, 1881, in consideration of the covenants therein of the latter. The deed contained this clause: “And it is also provided, as a part of this agreement, that the said Sutherland shall have the option to take the said premises for another year at the same price or rent, provided said first party does not sell said premises before the end of the month of April, A. D. 1881.” Some time in the month of September following, appellant either sold and assigned the lease, or sub-let the premises for the remainder of the term, to appellees,--but which it was, the witnesses testifying to the point do not agree. The evidence tended to show that in March or April, 1881, an agreement was made, and a memorandum thereof reduced to writing, and signed by Granville S. Ingraham, whereby he assumed to sell to Hiram Sibley these premises, for a consideration agreed upon, and undertook to convey the same by deed, “provided the abstract showed a good title;” that he immediately placed Sibley in the actual possession of the premises, and that he executed and delivered to him the requisite deed therefor on the 20th of May, 1881; that appellees remained in possession of the premises after April 30, 1881, under a contract of renting theretofore made with Sibley; that appellant was never in the actual possession of the premises after the appellees entered into possession under the assignment or sub-letting, and that appellant sought to charge appellees, by notice served on them on the 26th of April, 1881, that if they held the premises the next year he should charge them $3600 therefor. The main controversy arises on the rulings of the Superior Court in refusing an instruction asked by appellant, and in giving two instructions asked by appellees, when considered with reference to this state of case. That asked by appellant, and refused by the court, is in these words:

“If the jury believe, from the evidence, that the plaintiff in this case took a lease of the premises in question for one year, from the 1st day of May, 1880, which lease contained a clause that the plaintiff, at the expiration of that year, had the option to have the said premises for another year unless the said owner should sell the same before the expiration of the said first year, and if the jury further believe, from the evidence, that the said owner did not sell the said premises before the expiration of said year, then the said plaintiff had the right, under said lease, to hold the said premises for another year; and if, at the expiration of the first year of said lease, the defendants were in possession of said premises under the plaintiff, and as his tenants, and if the jury further believe, from the evidence, that the plaintiff, Sutherland, gave notice before the end of said first year, to said defendants, that if they continued in possession after the expiration of said first year of his said lease then he should hold them to pay as rent for the second year, as stated in said notice by the plaintiff to the defendants, namely, the sum of $3600, and if the jury further believe, from the evidence, that the said defendants, after they received such notice, continued in possession of said premises, then the defendants became liable to said plaintiff to pay the rent at the rate of $300 per month, for the year, from May 1, 1881, to May 1, 1882; and if they believe that such rent has not been paid to said plaintiff, then the jury will find for the plaintiff, and assess the damages accordingly.”

The instructions given at the instance of appellees are as follows: “On the part of the defendant the court instructs the jury, that if they believe, from the evidence, that one Granville S. Ingraham owned the premises in question, and executed a lease therefor to the plaintiff for one year, with the privilege of renewing for one or more years, provided said Ingraham did not sell the premises before the 30th day of April, 1881, and if they further believe, from the evidence, that the premises were sold by said Ingraham before the 30th day of April, 1881, then they should find for the defendants.

The court instructs the jury, as a matter of law, that in order to constitute a sale of real estate within the meaning of the clause in the lease introduced in evidence by plaintiff, it is not necessary that a deed should actually be executed and delivered, but any written agreement by or under which a party may enforce the making and delivery of a deed of conveyance, and...