Webster v. Nichols

• Decision Date: 27 September 1882
• Citation: 1882 WL 10393,104 Ill. 160
• Parties: ABIAH G. WEBSTER et al.v.ANNIE E. NICHOLS et al.
• Court: Illinois Supreme Court

104 Ill. 160

1882 WL 10393 (Ill.)

ABIAH G. WEBSTER et al.

v.ANNIE E. NICHOLS et al.

Supreme Court of Illinois.

Filed at Ottawa Sept. 27, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on writ of error to the Circuit Court of Cook county; the Hon. WILLIAM H. BARNUM, Judge, presiding.

This was a bill in equity by John Hutchinson, as guardian of the estate of Catharine W. Haven and Alice Haven, minors, and Annie E. Nichols, in her own right, against Abiah G. Webster, Christopher C. Webster, and Seth Gage, in which, among other things, it was alleged, that prior to the appointment of Hutchinson as such guardian, said Annie E. Nichols was the guardian of said minors; that whilst she was guardian, she, in her own right and as guardian, made a lease to Seth Gage, bearing date March 20, 1868, leasing to Gage lots 9, 10, 11, 12 and 13, in Haven's subdivision of the south part of block 3, assessor's subdivision of the south-west fractional quarter of section 22, township 39, range 14 east, in Chicago, Cook county, Illinois, said lease being for a term of seven years, commencing May 1, 1868, at $1500 per year, payable quarterly, together with all water rates, taxes and assessments, except special assessments for permanent improvements; that if said Gage failed to pay the taxes and assessments, then Annie E. Nichols, lessor, might pay them, and all payments so made should be additional rent, and that the whole amount of rent should be a first lien on all the buildings that Gage might erect on the demised property, and when any rent should become due and remain unpaid for one day, then the lessor may sell, after giving due notice, all the buildings that may be erected on said leased property, and retain so much of the proceeds of such sale as to pay the defaulted rent; that it was further provided, that the lessor should have a first lien upon all the property of Gage as security for said rent, and that said lessee should not remove any buildings from said premises while rent remained unpaid, and at the expiration of said term of seven years said lease should be renewed for a further term of seven years, upon such terms as should be approved by the county court of Cook county, not exceeding six per cent on appraised valuation made at the expiration of the first term, together with water rates and taxes. Said lease was signed by Annie E. Nichols and Seth Gage, and was binding on the heirs, executors, administrators and assigns of the parties signing; and that afterwards, Seth Gage, lessee, took possession and built ten dwelling houses on said demised premises, and during the first term of seven years all rents were paid by said Gage or assigns.

The bill further avers, that during the first term Gage sold the said houses to Christopher C. Webster, who took full possession, and Gage also assigned his lease to Christopher C. Webster, and that after said lease was assigned said Christopher C. Webster paid all the rents until October 1, 1877, but since that time both Gage and Christopher C. Webster refuse to pay rent; that at the end of the first term of seven years the lease was renewed in the way provided, and approved by the county court, at the same rental as provided for in the first lease. Avers, also, that Abiah G. Webster, who claims to be the owner of the houses, refuses to pay the rent; that said houses are rented for about $3500 per year; that the premises were sold for the taxes of 1877 and prior years, and the lessee paid a penalty of $500 to redeem; that there is now due for taxes and rent an aggregate sum exceeding $7000 and interest, and upon information and belief aver that Seth Gage and Christopher C. Webster are insolvent, and the buildings are not worth more than the rent due, and upon information and belief C. C. Webster and Abiah G. Webster will move off the buildings before the rent is paid. Then follows a prayer for an accounting, for an injunction from removing the houses, for the appointment of a receiver, and that a lien upon the buildings may be established for the amount due, and for general relief. The bill was subsequently amended, by leave of court, so as to show that the houses were sold by Gage to Abiah G. Webster, who took full possession, etc., and that the lease was assigned to her.

The joint answer of Christopher C. and Abiah G. Webster admits the making of the lease from Annie E. Nichols to Seth Gage for seven years, as alleged in the bill; that Gage took possession and built the ten dwelling houses, as alleged; that Christopher C. Webster, as the agent of Abiah G. Webster, his wife, bought from said Gage the said dwelling houses by him erected on the said premises, paying therefor the sum of $35,000, and that Abiah G. Webster went into immediate possession of said houses, and leased said houses to various tenants, but they severally deny that any valid assignment was ever made to either of them, but aver that said lease provided that no assignment should or could be made without first obtaining the written consent of Annie E. Nichols, and that said Annie E. Nichols utterly refused to give her consent to an assignment, and would not recognize such defendants as her tenants, and gave them distinctly to understand that she accepted rent from them as Gage's sub-tenants, and not as her tenants. They deny that any renewal of said lease was ever made to them, but at the expiration of the first term of seven years Annie E. Nichols positively refused to make any lease with them, and the county court would not recognize them as in any way parties to said lease, and would not make any lease with them; whereupon such defendants refused to authorize defendant Gage to make any lease for them, and that in making said renewed lease Gage did not act as their agent, or for them, as said defendants told Gage they did not want any lease, and would not accept any, as they were utterly ignored, both in making the renewed lease or in fixing the amount of rental; and they deny that they have accepted any assignment of the renewed lease, and no assignment has been made to them, and aver that they have never complied with the terms of the renewed lease, as they were in no manner parties thereto. They aver that they had no notice at the time of purchasing said houses, or for a long time thereafter, that the first lease gave a lien upon said buildings for the rent or for the taxes; that they never saw the lease until after the purchase, but bought said houses upon representations made by letter by Albert Gage, the son of Seth Gage, and aver that neither the first lease nor the renewal was acknowledged or recorded. They admit that the houses rent for $3300 per year, but they do not know how much rent has accrued under said lease, but deny that they should pay the rent or are liable therefor. They aver that a suit is now pending in the circuit court of Cook county, on the law side thereof, brought by the complainants against the defendant Seth Gage, to recover from said Gage the aforesaid amount of rent, which suit is still pending, etc. They deny that either is insolvent, but aver that the defendant Abiah G. Webster is now the owner of said houses, which are now insured for the sum of $15,000, and are worth more than the insurance, and that said Abiah is entirely responsible for all liability that has accrued or may accrue upon said lease.

By an amended answer, Abiah G. Webster alleged that the said houses belonged to her and were bought with her own money, and that as the owner of said houses she had never received any assignment of said lease, etc.

Seth Gage answered, admitting the averments of the bill regarding the lease, erection of houses, and the assignment of the lease to Christopher C. Webster, or the renewal of said lease, and averred that Annie E. Nichols refused to renew the lease to Christopher C. Webster. And afterwards the defendants, Christopher C. Webster and Abiah G. Webster, filed a joint amended answer, by leave of the court, alleging that all and every the matters in the complainants' bill mentioned are matters which may be tried and determined at law, and with respect to which the complainants are not entitled to any relief from a court of equity. The several answers were under oath, the oaths thereto not being waived by the bill. Proper replications were filed.

The decree finds the averments contained in the bill to be true, and further finds that the amount due from Abiah G. Webster and Seth Gage is $7489.59, which sum is itemized, as follows: Rent, eighteen months, to February 1, 1879, $2250; taxes for 1875, 1876 and 1877, paid by A. E. Nichols, $2855.35; penalty on taxes for 1875 and 1876, paid by A. E. Nichols, $500; taxes for 1878 and 1874, due prior to bringing suit, and paid by the complainant John Hutchinson, September, 1879, $1356.78; interest on rents paid by A. E. Nichols, in September, 1878, $219.37; interest on rents paid by John Hutchinson, $40.67; interest on taxes paid, and on penalty, $268.42,--which said several sums, and which said total amount, to-wit, $7489.59, the court finds due, and that the same be paid within twenty days, and in default, then the money paid into court by order of court, for and on account of rents collected by the defendant Abiah G. Webster from the tenants in said dwelling houses, shall be paid over forthwith by the clerk of this court to said complainants, and applied as part payment on said amount found due, and the said dwelling houses and improvements upon said premises mentioned in the bill, or so much thereof as may be sufficient, after the application of said money, paid into court upon the order aforesaid, in part payment of said amount found due as aforesaid, to realize the amount so due the complainants as found by this court, and above mentioned, and interest, and also the costs of this suit, including the fees, disbursements and commissions on the sale herein mentioned, be...