Madison County IL Archives Court.....Beel, V Pierce 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 1:20 am

Source: Reports Of Cases Illinois
Written: 1849

John Beel v. Thompson Pierce and Anson O. Fairman, appellees.

Appeal from Madison.

1. Forcible entry etc. — petition. A petition in action for forcible detainer, 
which shows that A, one of two defendants, had rented fifteen acres, parcel of 
a larger tract, and that he withholds the whole tract, and that B, the other 
defendant, unlawfully entered into the same premises under A, and that both 
unlawfully withhold them from the plaintiff after notice, is sufficient.

2. Same. To give the court jurisdiction, the petition should show, that the 
defendants entered into the premises, under a lease, or by the assent or 
acquiescence of the plaintiff, or some circumstance from which it can be 
presumed that the relation of landlord and tenant existed.(1)

3. Same — essentials of jurisdiction. Forcible entry and detainer must be 
shown, or the court acquires no jurisdiction except so far as the relation of 
landlord and tenant is shown to exist.(1)

4. Same — description of property. A particular description of the land 
claimed should be given. A description of about fifteen acres, a part of a 
tract of one hundred and sixty acres, not showing which part of the one 
hundred and sixty acres, is too loose.(2)

This was an action for a forcible detainer, from Madison county. The complaint 
before the justice declared that the defendants were in possession of certain 
tracts of land, of which plaintiff claimed to be the owner in fee simple; said 
land lying and being in the county of Madison and state of Illinois, to wit: 
the south-east quarter of section sixteen; also, the north-east quarter of the 
south-west quarter of section number twenty-one, township three north, range 
nine, west of the third principal meridian, together with all and singular the 
tenements and appurtenances thereto belonging, and as such entitled to 
immediate actual and exclusive possession of said premises; and that he, the 
said plaintiff, rented about fifteen acres of the said first mentioned tract 
of land to Thompson Pierce, one of the defendants, for one year, which expired 
on the 28th day of February, 1849, and that said Pierce unlawfully and without 
right withholds the possession of the whole of the above tracts of land from 
said plaintiff. Said plaintiff further states that one Anson O. Fairman, the 
other defendant, is connected with the said Pierce, and wrongfully and 
unlawfully entered into said premises with the said Pierce, and, together with 
the said Pierce, forcibly and unlawfully withholds the possession of said 
premises from the said plaintiff, after notice given them according to law.

On 10th March, 1849, a trial was had before a justice and a jury of twelve, 
and the defendants found guilty as charged.

From this finding the defendants prayed an appeal to the circuit court, and 
filed their bond on the 14th March, 1849. At August term, 1849, of the Madison 
circuit court, the defendants moved the court to dismiss said cause for want 
of jurisdiction. The court, Underwood, judge, presiding, dismissed said cause 
on account of the insufficiency of the affidavit; to which decision of the 
court, in dismissing said cause, the plaintiff at the time excepted, and 
prayed this appeal, and assigns for error, that the court erred in dismissing 
said suit on account of the insufficiency of the affidavit.

J. Gillespie, and Billings & Parsons, for appellant: The complaint states that 
Beel was the owner of a tract of land, and entitled to the immediate, actual 
and exclusive possession thereof; and that he rented fifteen acres of it for 
one year, which expired February 28th, 1849, and that Pierce unlawfully 
withholds the possession of the whole of the land, and that one Anson Fairman 
is connected with the said Pierce, and entered under him, and that they both 
withhold the possession of the whole of said land.

The complaint is sufficient. 1. In 6 Blackford, 145, it is laid down by the 
court, that a complaint was sufficient where it stated that plaintiff bought 
the land of defendant, and that by agreement the defendant was allowed to 
continue in possession until a certain day, and held over after that day, 
although the plaintiff never had actual possession, and that an action of 
forcible detainer can be sustained.

2. The relation of landlord and tenant is to be presumed in the whole tract, 
where the tenant leases a part of the land, and occupies the whole, with the 
assent of the landlord.

In 5th Gilman, 293, it is laid down by the court that there is no precise form 
of complaint in an action of forcible detainer. It is sufficient if the 
complaint show the relation of landlord and tenant to have existed; that the 
time for which the premises were let has expired, and that the tenant persists 
in holding the premises after demand made in writing for the possession 
thereof. "The possession of the tenant is the possession of the landlord," is 
a well known principle of law. If it is conceded that Beel was the owner of 
the land, and that Pierce was a tenant of his, for part of the land, and took 
possession of the whole, Beel was in possession of the whole, being the owner 
in fee simple, the complaint being taken as true. Although the complaint does 
not aver in so many words that Beel was the landlord of Pierce, yet that 
relation is inferred from the complaint; and although it does not state that 
Pierce entered the balance of the land under the lease, yet it states that 
Fairman under Pierce entered into the possession of the whole land, which 
supplies the defect, if there be any in the charge in regard to Pierce, Pierce 
being the tenant of Beel by the lease. All that is required in a complaint is, 
to show that the relation existed in terms that can be understood by the 
manner in which it is set forth.

In 1st Monroe's Reports, 50, it is laid down that the actual residence on one 
part of a tract, claiming the whole, is such an actual possession of the land 
as comes within the meaning of the act; and that an entry on any part, without 
the consent of such actual possessor, would subject the intruder to this 
remedy.

In regard to possession: In 3d Littell's Rep., 383, it is laid down that where 
a tenant enters on a farm under a lease, he acquires possession of the 
woodland which belongs to the same tract or parcel of land, unless he be 
circumscribed by the terms of the lease, and the true criterion is the 
enjoyment of the profit. In 2d Marsh., 18, and 3d J. J. Marshall, it is laid 
down by the court, that an occupant possessing himself of a part of a tract of 
land, with intent to take possession of the whole, is possessed of the whole, 
although it be done without the assent of the owner. How much more would he 
have possession if he takes possession with the assent of the owner?

The complaint in all these cases must be construed with reasonable certainty, 
and when the relation of landlord and tenant can be inferred, it ought to be. 
If the plaintiff was not, under the complaint, entitled to a restitution of 
the whole of said land, he certainly would be entitled to a restitution of the 
part leased. In 3d Marshall, 164, 1 Monroe, 38, 2 J. J. Marshall, 183, the 
principle is well established, that on a traverse the jury may find guilty as 
to part of the premises leased, and the plaintiff shall recover according to 
the proof.

In regard to the description of the land leased, see 4 Alabama, 112; 9 do., 
611; 8 do., 87; 1 Scammon, 407; 4 Missouri, 98; 3 Littell, 297. In all these 
cases the principle is laid down that all that is required is a general 
description of the premises, so that it will convey a distinct or definite 
idea of the land sought to be restored. In the Alabama case, the premises were 
described as N. E. sec. 5, T. 8, R. 11 east, and fifty acres of land; which 
was held sufficient.

In the Missouri case, the premises were described as one house and garden; 
which was held sufficient.

There is another point in this case: in regard to Fairman holding under 
Pierce. In Snoddy v. Watt, 9 Alabama, 611, it is laid down that to warrant a 
proceeding for an unlawful detainer, it is not necessary that the defendant 
should be a tenant of the plaintiff, or a tenant of his tenant. It is 
sufficient if he holds under, from or by collusion of the plaintiff's tenant.

E. Keating, for appellees: First, forcible entry and detainer is a possessory 
action, and the title to the lands, etc., can not be tried. 2 U. S. Annual 
Dig., 196, § 14; Settle v. Henson, 1 Morris, Ill; McKeen and wife v. Nelms, 9 
Ala., 508; Phelps v. Baldwin, 17 Conn., 209. Second, the plaint must make out 
a case. Whittaker v. Gautier, 3 Gilman, 443; Wells v. Hogan, Breese, 264. 
Third, the plaint must particularly describe the premises. Rev. Laws, 1845, 
257. sec. 4. Fourth, the plaint must show possession or relation of landlord 
and tenant. Phelps v. Baldwin, 17 Conn., 209; Walters v. Rogers, 9 Ala., 834; 
Whittaker v. Gautier, 3 Gilman, 443. Fifth, a trespasser may maintain the 
action. Lorimer et al., Adm'rs, etc., v. Lewis et al., 1 Morris, 253. Sixth, 
the trial before the circuit court was a trial de novo. Rev. Laws, 1845, 257. 
Seventh, if tenancy of two is averred, the proof must correspond, or an 
acquittal must follow.  Sneaker v. Quick, 7 Halstead, 129. 

Objections to the plaint in this case: If it is attempted to sustain the 
plaint on any other ground than the existence of the relation of landlord and 
tenant, then there is not such actual or constructive possession averred as is 
required by the decision. 3 Gilman, 443. If the ground of tenancy is assumed, 
then the plaint only sets forth a lease of fifteen acres, and that fifteen 
acres is not so described as to be sufficient for a warrant, in case of 
recovery. See plaintiff's authorities.

If it is contended that the defendants hold all or entered all by virtue of 
the lease, the answer is, the plaint should have shown this fact: it does not. 
Forcible entry and detainer being a mere possessory action, the plaint should 
show that the complainant has had possession, or, as in case of tenancy, there 
is such a relation existing as shows the defendant is not in a condition to 
deny the title of complainant, and the law being enacted to give a summary 
remedy to the party who has once had possession to recover it, the court will 
give such a construction as will enable a party to gain possession of property 
he has never before actually or constructively been in possession of.

Although Fairman rented the whole of the tracts from Pierce, he thereby became 
no more the sub-tenant of Beel than Pierce had been the tenant of Beel, to 
wit, as to fifteen acres, for the plaint does not claim that Pierce ever 
rented more than fifteen acres, or ever entered into any other than the 
fifteen acres, and does not deny that Pierce was and had been in possession of 
the balance of the tracts long before even Beel claimed to have title to any 
of the same.

Wm. T. Martin, on same side: The affidavit is not sufficient to give the court 
jurisdiction. The statute gives the action of forcible entry and detainer, 
where the complainant has been forcibly entered, and turned out of possession. 
To sustain such action, the complaint must show that the plaintiff was in the 
actual possession of all the land included in the affidavit, and that the 
defendant hath taken the possession of the whole of the premises described. 
Rev. Stat., p. 256, sec. 1.

To sustain the action of wilful detainer, the complaint must show the relation 
of landlord and tenant, and that the tenant, or those claiming under him, 
holds over after the expiration of the term, and after demand, etc. In this 
action the plaintiff can only recover such premises, and no more than is 
embraced in the lease, and such premises must be described with such certainty 
as will enable the sheriff to give the possession. Rev. Laws of 1845, sec. 4.

The plaintiff can not, on a complaint for fifteen acres of land, detained 
after the term expires, allege that he also holds one hundred and eighty-five 
acres more, and recover on such affidavit two hundred acres.

Caton, J. The complaint in this case shows, that Beel is the owner and 
entitled to the possession, of two tracts of land, amounting to two hundred 
acres, and that he rented about fifteen acres of one of the tracts, to Pierce, 
for one year, which expired in February, 1849; and that Pierce unlawfully 
withholds the whole of the premises from the plaintiff. The complaint then 
shows, that Fairman unlawfully entered into the possession of the same 
premises, under Pierce, and that they both unlawfully withhold them from the 
plaintiff, after notice, etc.

This petition was insufficient to give the court jurisdiction. It does not 
show that either of the defendants entered into the premises, except the 
fifteen acres, under the lease, or by reason of Pierce's having the lease, or 
in any way with the assent or acquiescence of the plaintiff, so that there is 
no circumstance stated, from which we can presume that the relation of 
landlord and tenant existed. From aught that appears the defendants may have 
taken possession of all but the fifteen acres, under a claim of title in 
themselves, adverse to that of the plaintiff, or under a lease from some other 
person. As no forcible entry and detainer is pretended, the court acquired no 
jurisdiction, except so far as the relation of landlord and tenant is shown to 
exist.

The petition is also defective, even as to the fifteen acres.   The statute 
provides, that the complaint shall be set down in writing, "particularly 
describing the lands," etc. R. S., 257, sec. 4. Here there is no such 
description of the fifteen acres.  It is described as "about fifteen acres of 
said first mentioned tract of land." In what part of this tract of one hundred 
and sixty acres of land these fifteen acres were located, the complaint does 
not show. This, by the most loose construction, can not be said to be a 
particular description of the land. We have no doubt that the circuit court 
decided properly, in holding the complaint insufficient, and in dismissing the 
cause, and its judgment is affirmed, with costs.

Judgment affirmed.

------------------------
Cited — Ball v. Chadwick, 46 Ill., 28; House v. Wilder, 47 Ill., 510; Haskins 
v. Haskins, 67 Ill. 446.

(1) See Bloom v. Goodner, Breese, 35 and note 3; Wells v. Hogan, Breese, 264. 
Subsequent to the case in the text, by statute of 1861, the jurisdiction was 
extended to all cases between vendor and vendee, where the latter was in 
possession under the contract on non compliance with its provisions, before 
deed executed and to cases where land had been sold at judicial sale upon 
refusal to deliver possession after redemption period expired, L., 1861, p. 
176. Under this statute, see R. S., 1874, p. 535, § 2, ch. 5, 6, it was 
necessary to show the relation of vendor and vendee and possession under the 
contract and it was not enough to show vendee had at any time failed to comply 
with his contract, but he must have so failed before obtaining a deed of 
conveyance, Haskins v. Haskins, 67 Ill., 446. By act of 1865 the first section 
of the statute of 1845, R. S., 1845, ch. 43, was construed to embrace all 
cases where any person should make any entry into vacant and unoccupied 
premises, without color of right or title, or should hold over against the 
lessor or his representatives in law, and where the covenants of lease were 
broken, L., 1865, p. 108, § 4; the present statute embraces these several 
features, R. S., 1874, p. 535, §§ 1, 2; Cothran's Stat., p. 733-4, §§ 1, 2. 
Formerly much difficulty was found in framing complaints in forcible entry and 
unlawful detainer, though it was held, so early as December, 1846, that the 
rule applicable to pleadings, that every intendment must be taken against the 
pleader did not apply in complaints of this kind, Ballance v. Fortier, 3 
Gilm., 291; Smith v. Killeck, 5 Gilm., 293. This has been in great measure 
obviated by statute of 1872, L., 1871-2, p. 458. § 4; R. S., 1874, p. 536, § 
5; Cothran's Stat., p. 735, § 5, prescribing the substance of the complaint in 
the most simple terms and form. Prior decisions as to the sufficiency of the 
complaint are of value only as showing the requisites of the evidence to 
sustain the case, see Smith v. Killeck, 5 Gilm., 293.

(2) Plaint claiming a whole house not sustained by proof of right to 
possession of a part, Huse v. Wilder, 47 Ill., 510.
page 76

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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