Peoria County IL Archives Court.....Walker, V Ellis 1850
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Source: Records Of Cases Illinois
Written: 1850

Isaac Walker et al., appellants, v. Joseph Ellis, appellee.

Appeal from Peoria.

Where there is a tenancy for a period of more than one year, no notice to the 
tenant is required, in order to entitle the landlord to possession, upon the 
expiration of the first term. (a)

If a minor contracts to sell real estate, the contract cannot be enforced, if 
he refuses after his majority to sanction it.

This was an action of forcible detainer, originally commenced before a justice 
of the peace of Peoria county, and afterwards brought into the Circuit Court 
of said county by appeal; and a trial was had at the September term of said 
court, A. D. 1850; which trial resulted in a verdict and judgment against said 
plaintiffs in error, who were defendants below, for the possession of the 
property described in the petition.

The petition stated, in substance, that on the eighth day of July, 1845, Ellis 
leased to A. Van Eps, all that certain piece or parcel of land lying on Main 
street, two lots above Mr. Pettingill's new brick building on Main street, 
being twenty feet front, running back seventy-two feet from front to back part 
of said lot, for three years, commencing June 1, 1845, and ending June 1, 
1848, for the consideration or rent of fifteen dollars per year; which lot is 
more particularly described as follows (setting it out by metes and bounds), 
and on which is a tinner's shop. 

That about nineteenth September, 1846, Van Eps died, and James Taylor was 
appointed administrator, etc.; and afterwards, and before said term expired, 
said Taylor, as administrator, assigned, sold and transferred said lease and 
terms to plaintiffs in error; and the plaintiffs in error, on the fourteenth 
of December, 1846, entered upon said premises, and held and occupied, have 
held and occupied, the same; and from thence, hitherto, have held and occupied 
the same as the tenants of defendant in error, and have acknowledged him as 
their landlord, and as such, have paid him rent. That on the first day of 
December, 1848, defendant in error demanded possession of said premises of 
plaintiffs in error, and notified them to quit, and deliver possession of said 
premises to defendant in error; which they refused, and still hold possession 
against the will of defendant in error; and charges forcible detainer, etc.

At September term, 1850, plaintiffs in error moved the Circuit Court to 
dismiss said petition and suit, on the ground of the insufficiency of the 
petition; which motion was overruled. At said September term, 1850, said cause 
was tried before Kellogg, Judge, and a jury. Verdict and judgment for 
plaintiff. Evidence was, in substance, on the part of the defendant in error, 
as follows:

Said defendant in error read in evidence a contract, in the words and figures 
following, to wit: "Peoria, Illinois, July 8, 1845. Articles of agreement, 
entered into this eighth day of July, 1845, between A. Van Eps on the first 
part, and J. Ellis, the second part, all of the town of Peoria. The said Ellis 
lets to A. Van Eps, a certain piece of ground, lying on Main street, two lots 
above Mr. Pettingill's new brick building, being twenty feet front to back 
part of lot, for the term of three years, commencing on the first day of June, 
A. D. 1845, and ending on the same date, 1848; for the consideration of 
fifteen dollars per year, with the taxes to be paid. Also, A. Van Eps has the 
privilege of buying said lot within one year, at the price of four hundred 
dollars, on trial from one to two years. The walk is to be brick, by J. Ellis. 
Signed, A. Van Eps, Joseph Ellis."

On the back of which, was the assignment of James Taylor, as administrator and 
guardian of the heirs of A. Van Eps, deceased to plaintiffs in error, of all 
the right, title, and interest of the said Van Eps, deceased, to said contract 
and lot, dated December 9, 1846.

William Ellis also testified, on the part of the defendant in error, that he 
was brother of defendant in error; that Van Eps died in September, 1846; that 
plaintiffs in error went into possession of property in fall of 1846 or winter 
following, and have continued in possession thereof ever since; that the 
residence of defendant in error then, was Peoria. That soon after the date of 
said contract, he went to Indiana, and did not return till June, 1848. Van Eps 
called on witness in summer of 1846, and enquired where defendant in error 
was; and said he wished to make first payment on the purchase of the lot; that 
he had the gold, and wished witness to receive it for defendant in error: that 
Van Eps frequently made the same request. Witness declined receiving the 
money, not being authorized to act for him. Van Eps then desired to know where 
the defendant in error was, as he wished to write to him; but witness could 
not tell him. After Van Eps' death, about November, 1846, Taylor paid witness, 
for defendant in error, fifteen dollars, as the amount due him on said 
agreement. Witness supposed plaintiffs in error went into possession under an 
assignment of said contract. Defendant was under age at time contract was 
made. He was born in 1825. That part of the time defendant in error was gone, 
from 1845 to June, 1848, his family did not know where he was. 

On the part of plaintiffs in error, James Taylor testified, that he was 
guardian of the heirs and administrator of the estate of Van Eps; that he was 
called by Ellis and Van Eps, in September, 1845, to witness their contract; at 
which time, at their request, he signed his name as witness to the contract. 
Van Eps then agreed, at the earnest request of said defendant in error, to buy 
said property on the terms in said contract, and told defendant in error the 
money would be ready as it became due. This was agreed to by both. Van Eps was 
not to pay interest, but was to pay fifteen dollars per year till last payment 
would become due. The lot was then vacant. Van Eps built a house on it, and 
when witness assigned the contract to plaintiffs in error, he sold also the 
house, tools, etc., and all rights under the contract, whatever they were; and 
at the same time, witness told plaintiffs in error that Van Eps had elected to 
buy the lot under the contract, and it was agreed to by the defendant in 
error; and that the plaintiffs in error went into possession of said property, 
under said purchase from witness. That witness did recollect telling Mr. Ellis 
(the first witness) that he should not complete said contract of purchase; but 
did not recollect telling him, that he had been told by the probate justice 
that he could not as administrator fulfill said contract, and did not know 
that he had the power to do so, but never intimated that he had not the means 
to do so. That after Van Eps' death, he found $100 in gold, in a package 
marked J. Ellis, among Van Eps' effects.

That soon after defendant in error returned in 1848, plaintiffs in error 
tendered to defendant in error the amount due for the purchase of the lot and 
interest; which he refused to accept, alleging he was a minor when contract 
was made. A previous tender of $100 was made and refused. Witness then asked 
him, if he was not of age when contract was witnessed by witness? and he said 
he was: he afterwards said, he was then mistaken as to his age. This was at 
last tender.

H. O. Merriman, for appellants:

The lease took effect June 1, 1845, for three years, reserving annual rent; 
and the demand of possession was [not] made till December 1, 1848; and the 
petition, dated December 2, 1848, alleges, that "Defendants have hitherto 
occupied," etc., as tenants of Ellis. This is an allegation of tenancy or 
lawful occupancy, after June 1, 1848, and created a new tenancy for a year 
from that date: and the petition should have been dismissed.

The proof showed that appellants occupied the premises for the time stated in 
the petition, by the acquiescence of the appellee; thereby creating such new 
tenancy: and the court erred in refusing to give the instruction asked for by 
appellee: 4 Kent Com., pp. 111, 112, 113, 114, 116; Jackson v. Salmon, 4 
Wend., 327; Weller v. Shearman, 3 Hill, 549; Sherwood v. Philips, 13 Wend., 
479; 6 B. & C. p. 125, in 13 Eng. Com. L. R., 118; Mashire v. Reding, 3 
Fairfield, 478; Coffin v. Lunt, 2 Pick, 70; Conway v. Starkeweather, 1 Denio, 
113.

Appellants claimed under contract of purchase, and the relation of landlord 
and tenant did not exist; and a new trial should have been granted: Whitaker 
v. Gautier, 3 Gil., 443.

Such holding over is not willful: Hall v. Balantine, 7 J. B., 536, and cases 
there cited; R. L., p. 256, sec. 1.

E. N. Powell, for appellee:

The complaint is sufficient. It clearly shows that the premises in question 
were demised by the appellee to Van Eps, for three years; and that appellants 
came into possession under the administrator of Van Eps, and as the tenant of 
Ellis, and paid him rent. It also shows that the tenancy had expired, and that 
demand had been made in writing for the possession; and that the appellants 
persisted in holding over.

This is all that can be required. It does not require the same strictness as 
might be required, were it a proceeding orginally brought in the Circuit 
Court: See Ballance v. Fortier, 3 Gilman, 291; Smith v. Kellick et al., 5 
Gilman, 293.

It is well settled that, in trials by jury, the weight of testimony is a 
question to be decided by the jury exclusively, and their decision cannot be 
assigned for error. And in order to warrant a new trial, it must be flagrant 
to justify a court in disturbing the verdict: Johnson v. Moulton, 1 Scam., 
532; Eldridge v. Huntington, 2 Ibid, 538; Webster v. Vickers, 2 Ibid, 296; 
Harmon v. Thornton, 2 Ibid, 354; Lowry v. Orr, 1 Gil., 70, and authorities 
cited in the argument.

If a tenant for a year hold over by consent, he then becomes tenant from year 
to year (4 Kent, 112), and becomes entitled to notice to quit. But a tenancy 
from year to year, cannot be created out of a tenancy for a certain and 
definite number of years: 4 Kent, 112, 113, 114, 115, 116 and 117; Rowan v. 
Lytle, 11 Wend., 616; McKay, et al. v. Mumford, 10 Wend., 351.

Caton, J. The complaint in this case was abundantly sufficient.

On the trial, the plaintiff below introduced and proved a lease of the 
premises in question to Van Eps, for three years from the first of June, 1845, 
in consideration of fifteen dollars per year. The lease concludes with the 
following provision: "Also, A. Van Eps has the privilege of buying said lot 
within one year, at the price of four hundred dollars, on time, from one to 
two years." The evidence shows that Ellis, soon after the execution of the 
lease, left the state, and was absent until about the time of the expiration 
of the term; and that his friends did not know where he was. During the summer 
of 1846, Van Eps called on a brother of Ellis, and inquired where he was, and 
said he wished to make a payment of one hundred dollars on the purchase of the 
lot, and wished the brother to take it; who, however, declined to receive the 
money, because he had no authority to do so. During the fall of 1846, Van Eps 
died, and Taylor was appointed administrator of his estate, and guardian to 
his children, who were all infants. In the fall or winter of 1846, Taylor, as 
such administrator and guardian, assigned the agreement to Walker & Lightner, 
who soon after took possession of the premises, which they held till the 
commencement of this suit. In the summer of 1848, and soon after Ellis 
returned to Peoria, the defendants tendered to him some gold, which they said 
was the full amount due for the purchase of the lot; which Ellis refused to 
accept, alleging that he was a minor at the time the agreement was executed. 
The evidence shows, that he was about twenty years of age at that time. A 
demand in writing, for delivery of the possession of the premises, as is 
required by the statute, was made on the first of December, 1848, and on the 
same day this suit was commenced. The jury found a verdict for the plaintiff, 
which the court refused to set aside; and, we think, properly. No tenancy from 
year to year had existed in this case which, by the rule of the common law, 
would entitle the tenant to a half-year's notice to terminate the tenancy. 
Here was a tenancy for a determinate period of more than one year; and no 
notice was required previous to the termination of that lease, in order to 
entitle the landlord to the possession of the premises upon the expiration of 
the first term. Had the tenants, after that time, continued in possession for 
another year, with the consent and approbation of the landlord, then a tenancy 
from year to year might be presumed; and which, according to the rule as held 
in England and many of the United States, would continue from year to year, 
until one party should notify the other, six months previous to the end of the 
year, of an intention to determine it. This doctrine of notice has no 
application whatever to this case. Had there been evidence showing that the 
landlord had acquiesced in the holding over of the tenants, then the jury 
might have inferred a new lease, for a longer or shorter term, not exceeding 
one year, according to the nature of the evidence; and until the end of that 
term, this action could not be maintained. But there was no such evidence, and 
the jury have found no such new tenancy.

The only remaining question is, whether the appellants were entitled to hold 
as purchasers in possession, under the clause in the lease providing for the 
sale of the premises. It is clear that Van Eps took possession as tenant under 
the lease, and not as purchaser; and as the evidence stands in this record, it 
makes no difference whether he subsequently determined to purchase the 
premises or not, under the clause professing to give him that right, or 
whether he did such acts in performance as would entitle him to the benefit of 
it. At the time of the execution of that agreement to sell, if as such it may 
be considered, the plaintiff was yet a minor; and this record fails to show a 
single act done by him, after he attained his majority, which can be construed 
into an affirmance of the agreement. As before remarked, immediately after he 
executed the lease, he left the country, and did not return until about the 
time, or after the term thereby created had expired; and when the defendants, 
soon after, offered to go on and complete the purchase, he repudiated the 
agreement to sell, upon the ground that it was not binding upon him, for the 
reason that he was not of age when he made it. This, of itself, is a 
sufficient answer to the claim of the defendants to hold the premises as 
purchasers, laying aside all question of the authority of Taylor to sell and 
assign to them the agreement.

The judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.

-----------------
(a) A tenancy for a year or for any determinate period of time does not make a 
tenancy from year to year, and no notice to quit in such cases is necessary: 
Secor v. Pestana, 17 Ill., 525; Knecht v. Mitchell, 67 Ill., 86.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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