Tinney v. Wolston

• Decision Date: 30 April 1866
• Citation: 1866 WL 4564,41 Ill. 215
• Parties: WILLIAM A. TINNEYv.ELIZABETH WOLSTON et al.
• Court: Illinois Supreme Court

41 Ill. 215

1866 WL 4564 (Ill.)

WILLIAM A. TINNEY

v.ELIZABETH WOLSTON et al.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Circuit Court of Tazewell county; the Hon. JAMES HARRIOTT, Judge, presiding.

This was an action of covenant, brought by Elizabeth Wolston and Abraham Wolston, in the Tazewell Circuit Court, to the June Term, 1865, against William A. Tinney. The declaration was on the covenants contained in a lease made by plaintiffs to one Richard Snell, of certain lots in the city of Pekin, for the term of the natural life of Elizabeth; that Snell covenanted to pay her $300 per annum in monthly installments as rent for the premises; that Snell entered upon the term; and that afterward Benj. S. Prettyman, by assignment, became the owner and possessed of the term, and entered into the possession of the premises thereunder.

That Prettyman assigned and transferred the term to defendant, and that he entered into possession under the term and had held the same; that plaintiffs had kept and performed all of their covenants, but that defendant had failed to keep the covenants entered into by Snell, and which he, by the assignment of the term to him, had become liable to perform, and has failed to pay the rents which had accrued under the lease.

Defendant filed five special pleas, to the first three of which plaintiffs filed a general demurrer. The court sustained the demurrer to each of the pleas, and defendant withdrew the fourth and fifth pleas, and abided by the first, second and third. The court thereupon heard evidence, and assessed the damages at the sum of $2,121.58, and rendered judgment against defendant for that amount. Defendant brings the case to this court, and assigns the judgment of the court below in sustaining the demurrer to his pleas, as error.

Mr. B. S. PRETTYMAN, for the plaintiff in error.

Mr. E. N. POWELL and MR. J. K. COOPER, for the defendants in error.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action of covenant, brought by Elizabeth Wolston and Abraham Wolston, against William A. Tinney, on a lease for the recovery of rent claimed to be due. The declaration contained two counts. In the first, it is averred, that plaintiffs, on the 7th day of April, 1857, leased the premises, out of which it is claimed the rents issue, to one Richard H. Snell, for and during the term of the natural life of Elizabeth Wolston, at a yearly rent of $300, payable in equal monthly installments; that Snell entered into the possession of the premises under the lease; that, on the 24th day of March, 1858, Snell assigned and transferred his lease to Prettyman, who also entered into possession of the premises, under the lease; that, on the 27th day of May, 1859, Prettyman assigned and transferred the lease to defendant, who in like manner entered into possession, and had since that time used and occupied the premises, under the lease; that he had failed to keep and perform the covenants contained in the lease, but had broken the same by failing to pay the rent, or any part thereof, which had accrued since he had entered; nor had the same or any part thereof been paid by any one. The second count is substantially the same as the first.

Among others, defendant filed three pleas. The first of these avers, that, on the 8th day of April, 1834, one Thomas Snell, Sr., owned the premises in fee. That he, on that day, executed a mortgage on the same to Guest & Rockey, to secure the payment of three thousand six hundred and eighty-two dollars and ninety-six cents, which they assigned to Richard H. and Thomas Snell, Jr. That they foreclosed the mortgage and became the owners of the premises, Richard H. being the purchaser, but Thomas, the owner of one undivided half, in equity; and that Richard took possession for their use.

That, being indebted to Ludwig & Needler, they on the 8th of September, 1845, recovered a judgment against Richard and Thomas Snell, for $254.39, in the Tazewell Circuit Court. That, on the 25th of November, 1845, an execution was issued on the judgment, and levied on the premises, but was returned without sale of the property. Afterward, an execution was issued on the same judgment, and on the 18th of March, 1851, the premises were sold thereunder, while Snell was still in possession, and Prettyman became the purchaser, and afterward received a sheriff's deed therefor, on the 19th of June, 1852.

That Prettyman, on the 3d of July, 1852, sold the premises to James M. Ruggles, who afterward, on the 22d of October, 1855, reconveyed the premises to Prettyman. That he demanded the possession of the premises of the Snells, who surrendered it to him as the owner in fee, and not otherwise. That Prettyman, on the 24th day of May, 1859, conveyed the premises to defendant below.

That, on the 7th day of February, 1851, the Wolstons had no title to the premises which they could lease, but that it belonged to Richard H. Snell, at law, but Thomas owned an undivided half in equity, all of which was known to plaintiffs below. That the lease was executed by the parties for the purpose of hindering, delaying and defrauding Ludwig & Needler in collecting their debt.

The second plea is substantially the same as the first. It, however, is different, in so far as it avers that Thomas Snell, Jr., and Richard Snell were the joint owners of the property, at the time Ludwig & Needler sold it under execution. The third is substantially the same, except it avers that Richard H. Snell was the sole owner. A demurrer was filed to these several pleas, which was sustained by the court. And, thereupon, defendant below abided by these pleas, and withdrew the others, and the court heard evidence and assessed the damages at the amount of rent...