Leiter v. Pike

20 N.E. 23, 127 Ill. 287

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court:

The arguments on behalf of the several parties to this record" have received such patient and careful consideration as we are able to bestow, and our conclusion thereupon is, that the law is correctly applied to the facts of the case in the foregoing opinion of the Appellate Court, by Mr. Justice Moran. We deem it necessary to add to what is therein said, only in answer to three objections urged against the views expressed, and that merely by way of amplification. In the order we shall pursue, the first and third of these objections are urged by counsel for appellees, and the second is urged by counsel for appellant.

First—The judgment of condemnation of the twenty-seven feet of the lots leased by Turnbull to the Bowens was not reversed by this court in Parmelee et al. v. City of Chicago, 60 Ill. 267. That was an appeal by certain parties from the judgments against their property on the delinquent special assessment. The ordinance under which this twenty-seven feet was taken and condemned was not held invalid, but the judgments for the particular delinquent special assessments were reversed solely because of the refusal of the court to receive evidence that the commissioners omitted to specially assess a street horse railway in common with other property specially benefited. On that reversal, it was therefore simply the duty of the commissioners to make a new assessment, correcting that error, leaving, meanwhile, the judgment for the value of the property taken, and for damages to property not taken, standing, so that whenever that judgment should'be paid by. the city, title would vest. And, manifestly, even if the judgment for damages was erroneous, the error might be waived by the owners. (Baker v. Brannan, 6 Hill, 47.) When Turn-bull elected to sue, in the United States court, for the value of the property taken, and for damages, he waived all right to object to the taking and appropriation upon the payment of his judgment. He could not have both the property and its value. Byars v. Spencer, 101 Ill. 429; Kellogg v. Turpie, 93 id. 265; Union Mutual Life Ins. Co. v. Slee, 123 id. 57; Clough v. London and Northwestern Railway Co. L. B. 7 Exch. 34.

The deed of Turnbull placed in escrow, moreover, in terms, expressly waived and cured all objections that otherwise might have been urged by Turnbull as against the sufficiency of the judgment for condemnation. Although Turnbull had leased the property, he might sell and convey one part of his reversion to one person, and the remainder to another person. 3 Kent’s Com. (8th ed.) p. 586, *469. The grantee of the reversion becomes liable on a covenant to renew the lease, because that covenant runs with the land. Taylor on Landlord and Tenant, (2d ed.) 332. Being a covenant running with the land, it is, necessarily, divisible. (Id. sec. 263.) And so, it must follow, that upon a conveyance of less than the whole of the reversion, the grantee can only be liable to renew the lease as to the part conveyed to him; and also, that when a person ceases to own a given part of the reversion, he must thereafter cease to be liable on the covenant to renew the lease.

A deed placed in escrow conveys nothing until the conditions are performed. “But,” says Sheppard’s Touchstone, (6th ed.) p. 57, *59, “when the conditions are performed and the deed is delivered over, then the deed shall take as much effect as if it were delivered immediately to the party to whom it is made, and no act of God or man can hinder or prevent this effect then.” And it needs no authority to prove that that which the grantor himself can not do, in this respect, he can not empower his grantee to do, for his grantee can but occupy his position,—assuming, of course, that his grantee is chargeable with notice of the deed in escrow. Here, the deed of Turnbull to Leiter recites that it is “subject, however, to such rights as the said city of Chicago may have acquired to the west twenty-seven feet of said lots, * * * as a part of State street, by deed, condemnation proceedings, judgment or otherwise.” And so Leiter, in legal presumption, knew of the existence and contents of the judgment and of the deed in escrow, and took subordinate thereto, and it is wholly immaterial what his knowledge, in fact, may have been.

After Turnbull had made the deed to the city, it is evident that all that he could convey to Leiter in respect to .the west twenty-seven feet of the' lots which he assumed to convey, was a mere contingent right to the reversion, to be terminated by the performance of- the conditions of the escrow. It may be that if the lease had terminated before these conditions were performed, Leiter might have been required to renew the lease as to the twenty-seven feet; but we express no opinion upon that question, because it is not before us. But it is manifest, that since the duty of renewal is imposed upon the grantee of the reversion because of the ownership of the reversion,—or, in other words, because the covenant runs with the land,—the moment he ceases to be owner, when the reversion, and, with it, the covenant of renewal, has passed to another, his liability on the covenant of renewal must cease. The conditions of the escrow were performed, and the deed was delivered and placed upon record, before Pike acquired any interest in the lease, and long before the time required for the giving of notice of the election to have a renewal of the lease. It was therefore impossible that Leiter could have been bound by covenant of renewal of lease, as to this twenty-seven feet, to Pike.

Second—Authorities cited by counsel for appellant sustain the position that whether the transfer of a paper from one person to another is a. delivery of that paper, is a question of intention, and that it is therefore competent to show that the transfer was in trust or upon condition, etc.; but that relates to the mere fact of the delivery of the paper itself, and has no reference to the construction or the effect of the instrument after delivery. The evidence, here, clearly shows that the paper containing the lease was sent by Leiter to Cherry, (that is, in legal effect, Pike,) with the intention that Cherry might accept it, and that this was done in discharge of Leiter’s obligation, under the covenant, to renew the lease. There was no trust and no condition in regard to it. Cherry’s acceptance bound Leiter to its performance, from the time of acceptance; and so, also, the evidence is equally clear that Cherry sent the duplicate of the lease, which he had signed, to Leiter, as the evidence of his acceptance of the lease, and the completion of the evidence of the contract on his part, intending that it should at once be placed in Leiter’s hands and under his absolute control, and immediately thereupon have all the effect that it ever could have. The evidence does show, however, that Cherry accompanied the delivery of the duplicate with a letter, in which he denied that the lease had the effect to obligate him to the payment of the rent therein provided to be paid by him; and we concede that if that letter had the effect to modify or change the terms of the lease, as executed by Leiter, the tender of Leiter was not accepted. But it is plain that it did not have that effect. The lease alone expresses the contract between the parties. Cherry’s letter was not intended to be incorporated in the lease,—it was but his commentary upon the lease and upon questions that had been in contention between the parties before its execution. It gave Cherry no rights that he did not have before the letter was written, and that he could not as well have enforced if the letter had never been written. It is in nowis.e different from a verbal commentary of like purport accompanying the delivery, for the law gives no effect to a written commentary, in this respect, that it would not have given to it had it been verbal. The case, then, is precisely as if A, on executing and delivering his bond to B, whereby he obligates himself to pay B $1000 at a day named, were to say, “I shall not consider myself bound to pay you $1000.” It is the doing of one thing, to which the law attaches a particular effect, and declaring that he intends directly the reverse, or something which is, in legal effect, materially different. That in such case the accompanying declaration is of no legal effect whatever, is well settled. The following may be added to the authorities cited on this point in the opinion of the Appellate Court: 2 Phillips on Evidence, (Hill, Cowen & Edwards’ notes,) p. 644, note 487; 1 Best on Evidence, (1st Am. ed. with Morgan’s notes,) p. 424, sec. 226.

Undoubtedly, Leiter might have withdrawn his tender of a lease at any time before acceptance; but he ought not to have done so, because it was his duty, under the covenant to renew,to make the tender he did make, and Cherry was entitled to a reasonable time to get the opinion of counsel before acceptance, and Leiter did not, in fact, withdraw his tender. To have done so, he should have given notice to that effect, asking for a return of the paper. His act should have been unequivocal. He not only made no request that the lease be returned, but he did not reject and return, or offer to return, the-duplicate signed by Cherry. The retention of that was a waiver of any right that he might have had before that time to withdraw the tender.

Third—The evidence fails to sustain the allegation of the bill that there was an agreement to make a rebate on the amount of rent after the' taking of possession of the twenty-seven feet of the lots by the city. It shows that the subject was talked about by some of the parties in interest, at or about the time of such taking of possession by the city; but it fails to show any agreement in that respect, much less such an agreement as would bind Leiter. It is immaterial what claim Pike may or may not have against the city on account of its taking possession of the twenty-seven feet of the lots, and it is proper to keep in view that Leiter is responsible to Pike for no injury to his leasehold rights occasioned by the severance in the reversion effected by the respective conveyances thereof by Turnbull to the city and to Leiter. It is only pertinent "to take into consideration that there was such severance, and that Leiter thereby became landlord as to the east seventy-three feet of the lots, and, as such, entitled to rent therefor, but only therefor, and that he has been paid rent by Pike for the entire lots.

Admitting, as contended by counsel fox- appellant, that the common law rule of abatement is applicable, namely, that the abatement shall be according to the value of the several parts of the land, (see 3 Kent’s Com. 8th ed. 586, *467Sedg-wick on Measure of Damages, 2d ed. 194; Taylor on Landlord and Tenant, 2d ed. see. 383,) it is evident that their further contention, that the amount of the abatement should be a sum equal to six per cent interest on the condemnation paid for the reversion in the twenty-seven feet taken, is inadmissible, because that is not according to the value of the several parts of the land; nor is it such an apportionment of the rent that, in the language of section 18, chapter 7, of the city charter, (under which were the condemnation proceedings) “the part thereof justly and equitably payable for such residue thereof, and no more, shall be paid or recoverable for the same.” The condemnation money is not assessed upon the idea that the relation of the value of the leasehold and reversionary interests are to perpetually remain as fixed by the terms of the prior lease, but upon the-idea that the sum assessed is a fair and adequate compensation for the entire respective values of those interests at the date of the assessment. It is obvious that circumstances may have entirely changed their relative values since the execution of the prior lease. Where property is taken pursuant to a condemnation, the presumption is that each interest is fully compensated, according to the law, for the injury it sustains by reason of the taking, and in no view, where, as here, the property taken is leased, is the one interest to be burdened with making good the loss sustained by the other interest by reason of the taking; and so, whether the condemnation money, to the one or to the other, was more or less than it ought to have been, is an immaterial question in this connection.

Apportioning the rent by the common law rule, we are unable to say there is error in the amount of the abatemexxt allowed by the decree. The evidence of the value of the several parts was not as full and satisfactory as it might have been; still, on that evidence, we can not say the amount decreed to be abated was less than it should have been. Edmund A. Cummings testified, on cross-examination: “I should think the right of renewal, for twenty years, as to the east seventy-three feet alone, as of the value I have given, with an additional depth, which means an additional frontage on Madison street, means more than without that additional depth. I should think, from fifteen to twenty per cent more.” And the witness, by his further answers, in effect, shows that this estimate is based on his estimate of the relative values of the parts. Albert I. Cole, on cross-examination, testified: “The right of renewal of a piece of land for the term of twenty years, from 1885, of a piece of ground one hundred feet deep on Madison street, by a hundred feet front on State street, is worth $20,-000. Taking off twenty-seven feet would impair it on the corner there fifteen per cent,—probably twenty.”

No question was raised as to the admissibility of this evidence. There is evidence of a valuation of the seventy-three feet several years subsequent to the time of the taking of the twenty-seven feet; but there is no evidence of a valuation of the twenty-seven feet, other than the foregoing, at any time. The amount of abatement decreed by the court was twenty per cent upon the amount of rent paid by Pike to Leiter, and ■ was certainly all that the evidence warranted. If the evidence does not sustain that abatement, inasmuch as it is clear it does not warrant a greater abatement, Pike is not injured by any error there may be in the decree in that respect.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.