West Side Trust & Sav. Bank v. Lopoten

• Decision Date: 17 December 1934
• Docket Number: No. 22539.,22539.
• Citation: 193 N.E. 462,358 Ill. 631
• Parties: WEST SIDE TRUST & SAVINGS BANK v. LOPOTEN.
• Court: Illinois Supreme Court

358 Ill. 631

193 N.E. 462

WEST SIDE TRUST & SAVINGS BANK

v.LOPOTEN.

No. 22539.

Supreme Court of Illinois.

Dec. 17, 1934.

Error to Third Branch Appellate Court, First District, on Appeal from the Municipal Court of Chicago; Frederick W. Elliott, Judge.

Action by the West Side Trust & Savings Bank against Abe Lopoten. To review a judgment of the Appellate Court affirming a judgment of the Municipal Court of Chicago for defendant, plaintiff brings certiorari.

Reversed and remanded, with directions.John M. Lee and Joseph B. Alexander, both of Chicago, for plaintiff in error.

FARTHING, Justice.

The plaintiff in error, the West Side Trust & Savings Bank (hereinafter called the plaintiff), filed a complaint in forcible detainer in the municipal court of Chicago against Abe Lopoten (who will be referred to as the defendant) for the possession of an apartment in Chicago. No affidavit of merits was required or filed. The cause was tried by the court without a jury, and judgment was rendered in favor of the defendant and against the plaintiff for costs. The plaintiff prosecuted an appeal to the Appellate Court for the First District, and that court affirmed the judgment. A writ of certiorari was granted by this court, and the record is submitted for a further review.

Jacob Pollack and Ike Fishman on June 21, 1927, executed bonds amounting to $65,000, due in installments on the 21st days of June, 1929, and of each year thereafter, to and including 1933, with interest at 6 per cent., payable semiannually, and secured their payment by a trust deed in the nature of a mortgage on an apartment building to the West Side Trust & Savings Bank. By the trust deed the grantors conveyed to the trustee not only the premises, but also the rents, issues, and profits which might thereafter accrue. The trustee was authorized, in the event of a default in the payment of either principal or interest of any of the bonds, to take possession of the mortgaged property; to mortgage, control, and lease it, in whole or in part; to make all necessary repairs, renewals, and alterations; to restore and insure the buildings and improvements; and to collect and receive all the rents, income, issues and profits from the property. Default was made in the payment of the bonds, amounting to $2,500, due June 21, 1931. On May 31, 1932, pursuant to the provisions of the trust deed, the trustee took possession of the premises and appointed Ike Fishman as its agent for the purpose of managing the apartment building. He accepted the appointment with the knowledge and acquiescence of Joseph Pollack. A notice which was signed by plaintiff was served on the tenants of the building in question, including the defendant, informing them that under the terms of the trust deed the the grantors had assigned the rents from the premises occupied by them to it; that, owing to a default in the performance of the provisions of the trust deed, it had elected to collect all rents, and directed them, on and after May 31, 1932, to pay their rent only to Fishman, as the agent of the trustee. The respective tenants were notified that the monthly rentals would remain unchanged. The rent for the apartment occupied by the defendant was $40 per month. Copies of this notice were mailed to the makers of the trust deed. The trustee employed a janitor for the building, furnished electric light and water, and caused repairs to be made on the refrigerator system. For several months Fishman, as the agent of the plaintiff, managed the building, collected the rents, and accounted for them on three occasions, June 8 and August 15 and 25, 1932. It thus appears that the defendant paid rent to the agent of the trustee. Later, Fishman refused to account further, and he was discharged as agent. On September 30, 1932, the plaintiff notified the tenants of this, and directed them thereafter to pay rents either to it or its new agent, Joseph M. Liebow. On October 5, 1932, the plaintiff caused a landlord's five-day notice to be served upon the defendant in accordance with the statute. It stated that $80 was due for the rent of the premises for the months of September and October, and demanded its payment, and, upon a failure to pay within five days following the service of the notice, demanded the immediate possession of the apartment in question. He did not comply with this notice, and on October 21 the plaintiff instituted this action.

The plaintiff contends that it, as mortgagee, having entered upon the mortgaged property for condition broken, and having received rent from the defendant, a tenant of the mortgagors, the relation of landlord and tenant was thereby created, and that it is therefore entitled to maintain the present action of forcible detainer because of his failure to pay his rent. To sustain its contention, it invokes sections 8 and 14 of the Landlord and Tenant Act (Smith-Hurd Ann. St. c. 80, §§ 8, 14) and section 2 of the Forcible Entry and Detainer Act (Smith-Hurd Ann. St. c. 57, § 2).

Section 8 of the Landlord and Tenant Act (Smith-Hurd Ann. St. c. 80, § 8, Cahill's Rev. St. 1933, c. 80, par. 8, p. 1747), so far as pertinent to this inquiry, provides that a landlord or his agent may, at any time after rent is due, demand its payment and notify the tenant, in writing, that, unless payment is made within the period specified in such notice, not less, however, than five days after service thereof, the lease will be terminated. It is further provided that, if the tenant does not, within the time prescribed, pay the rent due, the landlord may consider the lease ended and sue for possession under the forcible entry and detainer statute or maintain ejectment without further notice or demand. By section 14 of the same Act (Smith-Hurd Ann. St. c. 80, § 14, Cahill's Rev. St. 1933, c. 80, par. 14, p. 1748), it is provided that the grantees of any demised lands, tenements, rents, or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee, or assignee, shall have the same remedies, by entry action or otherwise, for the nonperformance of any agreement in the lease or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor might have had if such reversion had remained in him.

The first clause of section 2 of the Forcible Entry and Detainer Act (Smith-Hurd Ann. St. c. 57, § 2, Cahill's Rev. St. 1933, c. 57, par. 2, p. 1483) provides that the person entitled to the possession of lands or tenements may be restored thereto when a forcible entry is made; the second clause, when a peaceable entry is made and the possession unlawfully withheld; the third, where the entry is made into vacant or unoccupied lands without right or title; the fourth, when any lessee of the lands or tenements, or any person holding under him, holds possession without right, after the determination of the lease or tenancy by its own limitation, condition, or terms or by notice to quit or otherwise; the fifth, when a vendee, having obtained possession under an agreement to purchase lands or tenements, and having failed to comply with his agreement, withholds possession thereof after demand is writing by the person entitled to such possession; the sixth, among other things, when lands or tenements have been conveyed by any grantor in possession and such grantor refuses or neglects to surrender possession thereof after demand in writing by the person entitled thereto, or his agent.

Each of the above six clauses provides for the restoration of lands or tenements to the person entitled thereto. A preliminary question is thus presented whether it is necessary for the plaintiff in a proceeding under the Forcible Entry and Detainer Act to have been originally in physical possession. An action under the statute is a civil proceeding to obtain restitution of premises of which the plaintiff is unjustly deprived. Shulman v. Moser, 284 Ill. 134, 119 N. E. 936. It is a special statutory proceeding, summary in its nature, in derogation of the common law, and a party seeking this remedy must comply with the requirements of the statute, especially with respect to jurisdiction. City of Chicago v. Chicago Steamship Lines, 328 Ill. 309, 159 N. E. 301. Such proceedings, on the other hand, are remedial in character, and, in order to render effectual the remedy provided, the statute should be construed liberally. 2 Lewis' Sutherland on Stat. Const. (2d Ed.) § 686; Birdsall v. Phillips, 17 Wend. (N. Y.) 464. The object of analogous statutes has been declared to be to afford summary relief and to avoid the expense and delay of an action of ejectment. 2 Thompson on Real Prop. § 1492. The right to possession is all that is involved or that can be determined. Shulman v. Moser, 284 Ill. 134, 119 N. E. 936;Stoddard v. Illinois Improvement & Ballast Co., 271 Ill. 98, 110 N. E. 870.

The second section of the act makes provision for actions not only in forcible entry and detainer but also in forcible detainer. A recognized distinction obtains between them. The former is an action for repossession by a party who has been disseized, and in such case it is necessary for the plaintiff to charge and prove that he was in possession of the premises and that his possession was invaded by the defendant. Thompson v. Sornberger, 59 Ill. 326;Dudley v. Lee, 39 Ill. 339. However, in an action of forcible detainer, it is not essential for the plaintiff to have had possession nor for the defendant to have received possession from him. Cairo & St. Louis Railroad Co. v. Wiggins Ferry Co., 82 Ill. 230;Allen v. Webster, 56 Ill. 393. Forcible entry and detainer actions are brought under the first clause of section 2, and an invasion of the plaintiff's actual possession of the premises described in the complaint, at the time of the alleged entry, is a prerequisite to the maintenance of the...